Emergency Management and Assistance

44 Revised as of October 1, 2002

Containing a codification of documents of general applicability and future effect

As of October 1, 2002

With Ancillaries

Published by Office of the Federal Register National Archives and Records Administration

A Special Edition of the Federal Register

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For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402–0001

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Page Explanation ...... v

Title 44:

Chapter I—Federal Emergency Management Agency ...... 3

Chapter IV—Department of Commerce and Department of Trans- portation ...... 615

Finding Aids:

Table of CFR Titles and Chapters ...... 623

Alphabetical List of Agencies Appearing in the CFR ...... 641

List of CFR Sections Affected ...... 651

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To cite the regulations in this volume use title, part and section number. Thus, 44 CFR 1.1 refers to title 44, part 1, section 1.

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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2002), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate 0ct<09>2002 11:10 Oct 31, 2002 Jkt 197174 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Y:\SGML\197174F.XXX 197174F Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. OBSOLETE PROVISIONS Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published in 11 separate volumes. For the period beginning January 1, 2001, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume. An index to the text of ‘‘Title 3—The President’’ is carried within that volume. The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg- ister. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. REPUBLICATION OF MATERIAL There are no restrictions on the republication of material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd–numbered pages. For inquiries concerning CFR reference assistance, call 202–741–6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408 or e-mail [email protected]. SALES The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll free, 866–512–1800, or DC area, 202–512–1800, M–F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202–512–2250, 24 hours a day. For payment by check, write to the Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250–7954. For GPO Customer Serv- ice call 202–512–1803. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers, Weekly Compilation of Presidential Documents and the Pri- vacy Act Compilation are available in electronic format at www.access.gpo.gov/ nara (’’GPO Access’’). For more information, contact Electronic Information Dis- semination Services, U.S. Government Printing Office. Phone 202–512–1530, or 888– 293–6498 (toll–free). E–mail, [email protected].

VerDate 0ct<09>2002 11:10 Oct 31, 2002 Jkt 197174 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Y:\SGML\197174F.XXX 197174F The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s web site at www.nara.gov/fedreg. The NARA site also contains links to GPO Access.

RAYMOND A. MOSLEY, Director, Office of the Federal Register. October 1, 2002.

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Title 44—EMERGENCY MANAGEMENT AND ASSISTANCE is composed of one volume. The contents of this volume represent all current regulations codified under this title of the CFR as of October 1, 2002.

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Part

CHAPTER I— Federal Emergency Management Agency ...... 1

CHAPTER IV— Department of Commerce and Department of Transportation ...... 401

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SUBCHAPTER A—GENERAL

Part Page 0 General statements of policy [Reserved] 1 Rulemaking; policy and procedures ...... 7 2 Organization, functions, and delegations of authority ...... 13 3 [Reserved] 4 Intergovernmental review of Federal Emergency Management Agency (FEMA) programs and activities ...... 27 5 Production or disclosure of information ...... 30 6 Implementation of the Privacy Act of 1974 ...... 46 7 Nondiscrimination in federally-assisted programs (FEMA Reg. 5) ...... 64 8 National security information ...... 79 9 Floodplain management and protection of wetlands ...... 81 10 Environmental considerations ...... 101 11 Claims ...... 111 12 Advisory committees ...... 138 13 Uniform administrative requirements for grants and cooperative agreements to State and local governments ...... 145 14 Administration of grants: Audits of State and local governments ...... 172 15 Conduct at the Mt. Weather Emergency Assistance Center and at the National Emergency Training Center ...... 178 16 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Federal Emergency Management Agency ...... 182 17 Governmentwide debarment and suspension (nonprocurement) and governmentwide requirements for drug-free workplace (grants) ...... 188 18 New restrictions on lobbying ...... 207 3

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Part Page 19 Nondiscrimination on the basis of sex in education programs or activities receiving Federal financial assistance ...... 218 20–24 [Reserved] 25 Uniform relocation assistance and real property acquisition for Federal and federally assisted programs ...... 234 26–49 [Reserved]

SUBCHAPTER B—INSURANCE AND HAZARD MITIGATION 50–54 [Reserved]

NATIONAL INSURANCE DEVELOPMENT PROGRAM 55–58 [Reserved]

NATIONAL FLOOD INSURANCE PROGRAM 59 General provisions ...... 235 60 Criteria for land management and use ...... 250 61 Insurance coverage and rates ...... 266 62 Sale of insurance and adjustment of claims ...... 316 63 Implementation of section 1306(c) of the National Flood Insurance Act of 1968 ...... 331 64 Communities eligible for the sale of insurance ...... 336 65 Identification and mapping of special hazard areas 339 66 Consultation with local officials ...... 355 67 Appeals from proposed flood elevation determinations ...... 357 68 Administrative hearing procedures ...... 360 69 [Reserved] 70 Procedure for map correction ...... 362 71 Implementation of coastal barrier legislation ...... 364 72 Procedures and fees for processing map changes .... 368 73 Implementation of section 1316 of the National Flood Insurance Act of 1968 ...... 371 74 [Reserved] 75 Exemption of State-owned properties under self-insurance plan ...... 372 76–77 [Reserved] 78 Flood mitigation assistance ...... 375 79 [Reserved]

FEDERAL CRIME INSURANCE PROGRAM 80–149 [Reserved]

SUBCHAPTER C—FIRE PREVENTION AND CONTROL 150 Public safety awards to public safety officers ...... 379 4

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Part Page 151 Reimbursement for costs of firefighting on Federal property ...... 382 152 Assistance to firefighters grant program ...... 387 153–199 [Reserved]

SUBCHAPTER D—DISASTER ASSISTANCE 200 [Reserved] 201 Mitigation planning ...... 398 202–203 [Reserved] 204 Fire Management Assistance Grant Program ...... 404 205 [Reserved] 206 Federal Disaster Assistance for disasters declared on or after November 23, 1988 ...... 414 207–208 [Reserved] 209 Supplemental property acquisition and elevation assistance ...... 515 210–294 [Reserved]

SUBCHAPTER E—CERRO GRANDE FIRE ASSISTANCE 295 Cerro Grande fire assistance ...... 523 296–299 [Reserved]

SUBCHAPTER F—PREPAREDNESS 300 Disaster preparedness assistance ...... 536 301 [Reserved] 302 Civil defense-State and local Emergency Manage- ment Assistance Program (EMA) ...... 537 303 [Reserved] 304 Consolidated grants to insular areas ...... 546 305–311 [Reserved] 312 Use of civil defense personnel, materials, and facilities for natural disaster purposes ...... 547 313–320 [Reserved] 321 Maintenance of the mobilization base (Department of Defense, Department of Energy, Maritime Ad- ministration) ...... 550 323 Guidance on priority use of resources in immediate post attack period (DMO–4) ...... 553 324–325 [Reserved] 327 Policy on use of Government–owned industrial plant equipment by private industry (DMO–10A) 558 328 [Reserved] 329 Use of priorities and allocation authority for Fed- eral supply classification (FSC) common use items (DMO–12) ...... 559

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Part Page 330 Policy guidance and delegation of authorities for use of priorities and allocations to maximize domestic energy supplies in accordance with subsection 101(c) of the Defense Production Act of 1950, as amended (DMO–13) ...... 561 331 Preservation of the mobilization base through the placement of procurement and facilities in labor surplus areas ...... 562 332 Voluntary agreements under section 708 of the De- fense Production Act of 1950, as amended ...... 563 333 [Reserved] 334 Graduated mobilization response ...... 566 335–349 [Reserved] 350 Review and approval of State and local radiological emergency plans and preparedness ...... 570 351 Radiological emergency planning and preparedness 580 352 Commercial Nuclear Power Plants: Emergency Preparedness Planning ...... 586 353 Fee for services in support, review and approval of State and local government or licensee radiological emergency plans and preparedness ...... 592 354 Fee for services to support FEMA’S offsite Radio- logical Emergency Preparedness Program ...... 600 355–359 [Reserved] 360 State assistance programs for training and education in comprehensive emergency management 604 361 National earthquake hazards reduction assistance to State and local governments ...... 607 362 Criteria for acceptance of gifts, bequests, or services ...... 612 363–399 [Reserved]

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PART 0—GENERAL STATEMENTS OF Regulatory Flexibility Act which took POLICY [RESERVED] effect January 1, 1981. (d) A FEMA Manual No. 1140.1, ‘‘The PART 1—RULEMAKING; POLICY Formulation, Drafting, Clearance, and AND PROCEDURES Publication of FEDERAL REGISTER Doc- uments’’ has been issued describing the internal procedures including policy Subpart A—General level oversight of FEMA for: Sec. (1) Publishing the semiannual agenda 1.1 Purpose. of significant regulations under devel- 1.2 Definitions. opment and review; 1.3 Scope. 1.4 Policy and procedures. (2) Making initial determinations 1.5 Rules docket. with respect to significance of proposed 1.6 Ex parte communications. rulemaking; 1.7 Regulations agendas. (3) Determining the need for regu- 1.8 Regulations review. latory analyses; and 1.9 Regulatory impact analyses. (4) Reviewing existing regulations, Subpart B—Procedures for Rulemaking including the reviews required by the Regulatory Flexibility Act. 1.10 Initiation of rulemaking. (e) As the FEMA Manual deals with 1.11 Advance notice of proposed rule- internal management it is not subject making. to the requirements either of 5 U.S.C. 1.12 Notice of proposed rulemaking. 1.13 Participation by interested persons. 552 or 553. Its provisions are not part of 1.14 Additional rulemaking proceedings. this rule and reference to it is inform- 1.15 Hearings. ative only. 1.16 Adoption of a final rule. 1.17 Petitions for reconsideration. [46 FR 32584, June 24, 1981, as amended at 49 1.18 Petition for rulemaking. FR 33878, Aug. 27, 1984] AUTHORITY: 5 U.S.C. 551, 552, 553; 5 U.S.C. § 1.2 Definitions. 601, et seq.; E.O. 12291. Reorganization Plan No. 3 of 1978; E.O. 12127; E.O. 12148. (a) Rule or regulation means the whole or a part of any agency state- SOURCE: 46 FR 32584, June 24, 1981, unless otherwise noted. ment of general applicability and future effect designed to (1) implement, Subpart A—General interpret, or prescribe law or policy, or (2) describe procedures or practice re- § 1.1 Purpose. quirements. It includes any rule of general applicability governing Federal (a) This part contains the basic poli- grants to State and local governments cies and procedures of the Federal Emergency Management Agency for which the agency provides an op- (FEMA) for adoption of rules. These portunity for notice and public com- policies and procedures incorporate ment, except that the term rule does those provisions of section 4 of the Ad- not include a rule of particular applica- ministrative Procedure Act (APA) (5 bility relating to rates, wages, prices, U.S.C. 553) which FEMA will follow. facilities, appliances, services, or al- This part and internal FEMA Manuals lowances therefor or to valuations, implement Executive Order 12291. costs or accounting, or practices relat- (b) Rules which must be published ing to such rates, wages, structures, are described in section 3(a) of the prices, appliances, services, or allow- APA, 5 U.S.C. 552(a). FEMA implemen- ances. For purposes of this part the tation of paragraph (a) is contained in term rule does not include regulations 44 CFR part 5, subpart B. issued with respect to a military or for- (c) This part contains policies and eign affairs function of the United procedures for implementation of the States.

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(b) Rulemaking means the FEMA to society for the regulation outweigh process for considering and formu- the potential costs to society; lating the issuance, amendment or re- (3) Regulatory objectives shall be peal of a rule. chosen to maximize the net benefits to (c) Director means the Director, society; FEMA, or an official to whom the Di- (4) Among alternative approaches to rector has expressly delegated author- any given regulatory objective, the al- ity to issue rules. ternative involving the least net cost (d) FEMA means Federal Emergency to society shall be chosen; and Management Agency. (5) FEMA shall set regulatory prior- (e) Major rule means any regulation ities with the aim of maximizing the that is likely to result in: aggregate net benefits to society, tak- (1) An annual effect on the economy ing into account the condition of the of $100 million or more; particular entities affected by regula- (2) A major increase in costs or prices tions, the condition of the national for consumers, individual industries, economy, and other regulatory actions Federal, State, or local government contemplated for the future. agencies, or geographic regions; or (b) It is the policy of FEMA to pro- (3) Significant adverse effects on vide for public participation in rule- competition, employment, investment, making regarding its programs and productivity, innovation, or on the functions, including matters that re- ability of United States-based enter- late to public property, loans, grants, prises to compete with foreign-based or benefits, or contracts, even though enterprises in domestic or export mar- these matters are not subject to a re- kets. quirement for notice and public com- [46 FR 32584, June 24, 1981, as amended at 49 ment rulemaking by law. FR 38118, Sept. 27, 1984] (c) FEMA will publish notices of proposed rulemaking in the FEDERAL REG- § 1.3 Scope. ISTER and will give interested persons (a) This part prescribes general rule- an opportunity to participate in the making procedures for the issuance, rulemaking through submission of amendment, or repeal of rules in which written data, views, and arguments participation by interested persons is with or without opportunity for oral required by 5 U.S.C. 553 or other stat- presentation. utes, by Executive Order 12291, by (d) In order to give the public, includ- FEMA policy, or by § 1.4 of this part. ing small entities and consumer (b) Any delegation by the Director of groups, an early and meaningful oppor- authority to issue rules may not be tunity to participate in the develop- further redelegated, unless expressly ment of rules, for a number of regula- provided for in the delegation. tions the Director will employ addi- (c) This part does not apply to rules tional methods of inviting public par- issued in accordance with the formal ticipation. These methods include, but rulemaking provisions of the Adminis- are not limited to, publishing advance trative Procedure Act (5 U.S.C. 556, Notices of Proposed Rulemaking 557). (ANPR), which can include a statement with respect to the impact of the pro- § 1.4 Policy and procedures. posed rule on small entities; holding (a) In promulgating new regulations, open conferences; convening public fo- reviewing existing regulations, and de- rums or panels, sending notices of pro- veloping legislative proposals con- posed regulations to publications like- cerning regulation, FEMA, to the ex- ly to be read by those affected and so- tent permitted by law, shall adhere to liciting comment from interested par- the following requirements: ties by such means as direct mail. An (1) Administrative decisions shall be ANPR should be used to solicit public based on adequate information con- comment early in the rulemaking proc- cerning the need for and consequences ess for significant rules. of proposed government action; (e) It is the policy of FEMA that its (2) Regulatory action shall not be un- notices of proposed rulemaking are to dertaken unless the potential benefits afford the public at least sixty days for

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submission of comments unless the Di- § 1.5 Rules docket. rector makes an exception and sets (a) Documents which are public forth the reasons for the exception in records and which are a part of a spe- the preamble to the notice of proposed cific rulemaking procedure, including rulemaking. This period shall also in- but not limited to, advance notices of clude any period of review required by proposed rulemaking, notices of pro- the Office of Management and Budget posed rulemaking, written comments in accordance with the Paperwork Re- addressed to the merits of a proposed duction Act of 1980. rule, and comments received in re- (f) Unless required by statute or Ex- sponse to notices, or withdrawals or ecutive Order, notice and public proce- terminations of proposed rulemaking, dure may be omitted if the Director, petitions for rulemaking, requests for for good cause, determines in a par- oral argument in public participation ticular case or class of cases that no- cases, requests for extension of time, tice and public procedure is imprac- grants or denials of petitions or re- tical, unnecessary or contrary to the quests, transcripts or minutes of infor- public interest and sets forth the rea- mal hearings, final rules and general son for the determination in the rule- notices shall be maintained in the Of- making document or, for a class of fice of General Counsel. All public rule- cases, in a published rule or statement making comments should refer to the of policy. In a particular case, the rea- docket number which appears in the sons for the determination will be stat- heading of the rule and should be ad- ed in the rulemaking document. Notice dressed to the Rule Docket Clerk, Fed- and public procedure may also be omit- eral Emergency Management Agency, ted with respect to statements of pol- Office of General Counsel. icy, interpretative rules, rules gov- (b) Documents which are a part of a erning FEMA’s organization or its own specific rulemaking proceeding are internal practices or procedures, or if a public records. After a docket is estab- statute expressly authorizes omission. lished, any person may examine dock- (g) A final substantive rule will be eted material at any time during estab- published not less than 30 days before lished hours of business and may ob- its effective date unless it grants or tain a copy of any docketed material recognizes an exemption or relieves a upon payment of the prescribed fee. restriction or unless the rulemaking (See part 5 of this chapter.) document states good cause for its tak- [46 FR 32584, June 24, 1981, as amended at 48 ing effect less than 30 days after publi- FR 44542, Sept. 29, 1983] cation. Statements of policy and interpretative rules will usually be made ef- § 1.6 Ex parte communications. fective on the date of publication. In rulemaking proceedings subject (h) This part shall not apply to any only to the procedural requirements of regulation that responds to an emer- 5 U.S.C. 553: gency situation, provided that, any (a) All oral communications from such regulation shall be reported to the outside FEMA of significant informa- Director, Office of Management and tion and argument respecting the mer- Budget, as soon as is practicable. its of a proposed rule, received after FEMA shall publish in the FEDERAL notice of proposed informal rule- REGISTER a statement of the reasons making and in its course by FEMA or why it is impracticable for the agency its offices and divisions or their per- to follow the procedures of Executive sonnel participating in the decision, Order 12291 with respect to such a rule, should be summarized in writing and and the agency shall prepare and trans- placed promptly in the Rules Docket mit, if needed, as soon as is practicable File available for public inspection. a Regulatory Impact Analysis of any (b) FEMA may conclude that restric- such major rule. tions on ex parte communications in [46 FR 32584, June 24, 1981, as amended at 49 particular rulemaking proceedings are FR 38119, Sept. 27, 1984; 50 FR 40004, Oct. 1, necessitated by consideration of fair- 1985] ness or for other reasons.

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§ 1.7 Regulations agendas. (3) The complexity of the rule, including need for review of language for (a) The FEMA semi-annual agenda clarity; called for by Executive Order 12291 will be part of the Unified Agenda of Fed- (4) The extent to which the rule over- eral Regulations published in April and laps, duplicates or conflicts with other October of each year. Federal rules, and, to the extent feasible, with State and local govern- (b) In accordance with 5 U.S.C. 605, mental rules; and the regulatory flexibility agenda required by 5 U.S.C. 602 and the list of (5) The length of time since the rule rules, if any, to be reviewed pursuant has been evaluated or the degree to to 5 U.S.C. 610 shall be included in the which technology, economic condi- FEMA semiannual agenda described in tions, or other factors have changed in paragraph (a) of this section. the area affected by the rule. (c) The semiannual agenda shall, § 1.9 Regulatory impact analyses. among other items, include: (1) A summary of the nature of each (a) FEMA shall, in connection with major rule being considered, the objec- any major rule, prepare and consider a tives and legal basis for the issuance of Regulatory Impact Analysis. Such the rule, and an approximate schedule analysis may be combined with the for completing action on any major Regulatory Flexibility Analysis de- rule for which the agency has issued a scribed in §§ 1.12(f) and 1.16(c) of this notice of proposed rulemaking. part. (2) The name and telephone number (b) FEMA shall initially determine of a knowledgeable agency official for whether a rule it intends to propose or each item on the agenda; and to issue is a major rule and, if a major (3) A list of existing regulations to be rule, shall prepare Regulatory Impact reviewed under the terms of the Order Analyses and transmit them, along and a brief discussion of each such reg- with all notices of proposed rule- ulation. making and all final rules, to the Di- rector, Office of Management and [46 FR 32584, June 24, 1981, as amended at 49 Budget, as follows: FR 33878, Aug. 27, 1984] (1) If no notice of proposed rulemaking is to be published for a pro- § 1.8 Regulations review. posed major rule that is not an emer- (a) As part of the semiannual agenda gency rule, the agency shall prepare described in §1.7 of this part, FEMA only a final Regulatory Impact Anal- will publish in the FEDERAL REGISTER ysis, which shall be transmitted, along and keep updated a plan for periodic with the proposed rule, to the Director, review of existing rules at least within Office of Management and Budget, at 10 years from date of publication of a least 60 days prior to the publication of rule as final. This includes those that the major rule as a final rule; have significant impact on a substan- (2) With respect to all other major tial number of small entities. rules, FEMA shall prepare a prelimi- (b) The purpose of the review shall be nary Regulatory Impact Analysis, to determine whether such rules should which shall be transmitted, along with be continued without change, or should a notice of proposed rulemaking, to the be amended or rescinded, consistent Director, Office of Management and with the stated objectives of applicable Budget, at least 60 days prior to the statutes, including minimizing any sig- publication of a notice of proposed nificant economic impact of the rules rulemaking, and a final Regulatory Im- upon a substantial number of small en- pact Analysis, which shall be tities. transmited along with the final rule at (c) In reviewing rules FEMA shall least 30 days prior to the publication of consider the following factors: the major rule as a final rule; (1) The continued need for the rule; (3) For all rules other than major (2) The nature, type and number of rules, FEMA shall, unless an exemp- complaints or comments received con- tion has been granted, submit to the cerning the rule from the public; Director, Office of Management and

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Budget, at least 10 days prior to publi- (a) A description of the proposed new cation, every notice of proposed rule- program or program changes, and why making and final rule. they are needed; (c) To permit each major rule to be (b) A presentation of the major pol- analyzed in light of the requirements icy issues involved; stated in section 2 of Executive Order (c) A request for comments, both spe- 12291, each preliminary and final Regu- cific and general, on the need for the latory Impact Analysis shall contain proposed rule and the provisions that the following information: the rule might include; (1) A description of the potential ben- (d) If appropriate, a list of questions efits of the rule, including any bene- about the proposal which seeks to ficial effects that cannot be quantified bring out detailed comments; in monetary terms, and the identifica- (e) If known, an estimate of the re- tion of those likely to receive the bene- porting or recordkeeping requirements, fits; if any, that the rule would impose; and (2) A description of the potential (f) The time within which comments costs of the rule, including any adverse may be submitted to the Rules Docket effects that cannot be quantified in Clerk, Federal Emergency Manage- monetary terms, and the identification ment Agency, Washington, DC 20472. of those likely to bear the costs; [46 FR 32584, June 24, 1981, as amended at 48 (3) A determination of the potential FR 44542, Sept. 29, 1983; 49 FR 33879, Aug. 27, net benefits of the rule, including an 1984] evaluation of effects that cannot be quantified in monetary terms; § 1.12 Notice of proposed rulemaking. (4) A description of alternative ap- Each notice of proposed rulemaking proaches that could substantially required by statute, executive order, or achieve the same regulatory goal at by § 1.4 will be published in the FED- lower cost, together with an analysis of ERAL REGISTER and will include: this potential benefit and costs and a (a) The substance or terms of the pro- brief explanation of the legal reasons posed rule or a description of the sub- why such alternatives, if proposed, ject matter and issues involved. could not be adopted; and (b) A statement of how and to what (5) Unless covered by the description extent interested persons may partici- required under paragraph (c)(4) of this pate in the proceeding. section, an explanation of any legal (c) Where participation is limited to reasons why the rule cannot be based written comments, a statement of the on the requirements set forth in sec- time within which such comments tion 2 of Executive Order 12291. must be submitted. (d) A reference to the legal authority Subpart B—Procedures for under which the proposal is issued. Rulemaking (e) In a proceeding which has provided Advance Notice of Proposed § 1.10 Initiation of rulemaking. Rulemaking, an analysis of the prin- Rulemaking may be initiated on the cipal issues and recommendations Director’s motion or upon motion of an raised by the comments, and the man- official to whom rulemaking authority ner in which they have been addressed has been delegated. Rulemaking may in the proposed rulemaking. also be initiated on the petition of any (f)(1) A brief statement setting forth interested person in accordance with the agency’s initial determination the provisions of § 1.18. Interested per- whether the proposed rule is a major son includes a Federal, State, or local rule, together with the reasons under- government or government agency. lying that determination; (2) For each proposed major rule, a § 1.11 Advance notice of proposed rule- brief summary of the agency’s prelimi- making. nary Regulatory Impact Analysis; and An Advance Notice of Proposed Rule- (3) The initial regulatory flexibility making will be published in the FED- analysis or a summary thereof as re- ERAL REGISTER and contains: quired by the Regulatory Flexibility

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Act (5 U.S.C. 601, et seq.), or a certifi- fact-finding proceeding. Any rule cation that the rule, if promulgated, issued in a proceeding under this part will not have a significant economic in which a hearing is held need not be impact on a significant number of based exclusively on the record of such small entities pursuant to 5 U.S.C. 605. hearing. Such certification may be made by any (b) When a hearing is provided, the FEMA official with rulemaking au- Director will designate a representa- thority. tive to conduct the hearing. (g) It is desirable, but not required, that the notices contain a target dead- § 1.16 Adoption of a final rule. line for issuance of the regulation, and (a) All timely comments will be con- that to the extent feasible, this dead- sidered in taking final action on a pro- line be met. posed rule. Each preamble to a final (h) If the rule is one which contains rule will contain a short analysis and a requirement for collection of infor- evaluation of the relevant significant mation, a copy of the rule will be fur- issues set forth in the comments sub- nished OMB in accordance with 44 mitted, and a clear concise statement U.S.C. 3504(h). of the basis and purpose of the rule. [46 FR 32584, June 24, 1981, as amended at 49 (b) When determined necessary by FR 38119, Sept. 27, 1984] the Director in accordance with the provisions of 1 CFR 18.12, the preamble § 1.13 Participation by interested persons. shall contain the following information: (a) Unless the notice otherwise pro- (1) A discussion of the background vides, any interested person may par- and major issues involved; ticipate in rulemaking proceedings by submitting written data, views or argu- (2) In the case of a final rule, any sig- ments within the comment time stated nificant differences between it and the in the notice. In addition, the Director proposed rule; may permit the filing of comments in (3) A response to substantive public response to original comments. comments received; and (b) In appropriate cases, the Director (4) Any other information the Direc- may provide for oral presentation of tor considers appropriate. views in additional proceedings de- (c) At the time of publication of the scribed in § 1.14. final rule, a statement shall be pub- (c) Copies of regulatory flexibility lished describing how the public may analyses shall be furnished the Chief obtain copies of the final regulatory Counsel for Advocacy of the Small flexibility analysis which must be pre- Business Administration. pared in accordance with 5 U.S.C. 604 unless the procedure for waiver or § 1.14 Additional rulemaking pro- delay of completion under 5 U.S.C. 608 ceedings. is followed. The Director may invite interested (d) Before approving any final major persons to present oral arguments, ap- rule FEMA will: pear at informal hearings, or partici- (1) Make a determination that the pate in any other procedure affording regulation is clearly within the author- opportunity for oral presentation of ity delegated by law and consistent views. The transcript or minutes of with congressional intent and include such meetings, as appropriate, will be in the FEDERAL REGISTER at the time kept and filed in the Rules Docket. of promulgation a memorandum of law supporting that determination; and § 1.15 Hearings. (2) Make a determination that the (a) The provisions of 5 U.S.C. 556 and factual conclusions upon which the 557, which govern formal hearings in rule is based have substantial support adjudicatory proceedings, do not apply in the agency record, viewed as a to informal rulemaking proceedings de- whole, with full attention to public scribed in this part. When opportunity comments in general and the com- is afforded for oral presentation, the ments of persons directly affected by informal ‘‘hearing’’ is a nonadversary, the rule in particular.

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§ 1.17 Petitions for reconsideration. FEMA OFFICES Petitions for reconsideration of a 2.11 Office of the Director. final rule will not be considered. Such 2.12 Office of the Inspector General. 2.13 Office of the General Counsel. petitions, if filed, will be treated as pe- 2.14 Office of Congressional and Govern- titions for rulemaking in accordance mental Affairs. with § 1.18. 2.15 Office of Emergency Information and Public Affairs. § 1.18 Petition for rulemaking. 2.16 Office of Policy and Assessment. (a) Any interested person may peti- 2.17 Office of Human Resources Manage- tion the Director for the issuance, ment. 2.18 Office of Equal Rights. amendment, or repeal of a rule. For 2.19 Office of Financial Management. purposes of this section the term person 2.20 Office of Regional Operations. includes a Federal, State or local gov- 2.21 Ombudsman. [Reserved] ernment or government agency. Each 2.22 Regional Offices. petition shall: (1) Be submitted to the Rules Docket ADMINISTRATIONS Clerk; 2.31 Federal Insurance Administration. (2) Set forth the substance of the rule 2.32 United States Fire Administration. or amendment proposed or specify the DIRECTORATES rule sought to be repealed or amended; (3) Explain the interest of the peti- 2.41 Mitigation Directorate. 2.42 Preparedness, Training, and Exercises tioner in support of the action sought; Directorate. and 2.43 Response and Recovery Directorate. (4) Set forth all data and arguments 2.44 Operations Support Directorate. available to the petitioner in support of the action sought. Subpart B [Reserved] (b) No public procedures will be held directly on the petition before its dis- Subpart C—OMB Control Numbers position. If the Director finds that the 2.80 Purpose. petition contains adequate justifica- 2.81 OMB control numbers assigned to infor- tion, a rulemaking proceeding will be mation collections. initiated or a final rule will be issued AUTHORITY: 5 U.S.C. 552; Reorganization as appropriate. If the Director finds Plan No. 3 of 1978, 5 U.S.C. App. 1; E.O. 12127, that the petition does not contain ade- 3 CFR, 1979 Comp., p. 376; E.O. 12148, as quate justification, the petition will be amended, 3 CFR, 1979 Comp., p. 412. denied by letter or other notice, with a SOURCE: 59 FR 26133, May 19, 1994, unless brief statement of the ground for de- otherwise noted. nial. The Director may consider new evidence at any time; however, repeti- Subpart A—Organization, Func- tious petitions for rulemaking will not tions, and Delegations of Au- be considered. thority

PART 2—ORGANIZATION, FUNC- GENERAL TIONS, AND DELEGATIONS OF AUTHORITY § 2.1 Purpose. This part describes the organization Subpart A—Organization, Functions, and of the Federal Emergency Management Delegations of Authority Agency (FEMA), and the general course and method by which its func- GENERAL tions are administered. It provides for Sec. the exercise by officials of FEMA of au- 2.1 Purpose. thorities that are vested in the Direc- 2.2 Organization of FEMA. tor specifically by statute, as head of 2.3 Exercise of authority. an agency, or as a consequence of a law 2.4 General limitations and reservations. 2.5 Delegations not included. authorizing such exercise. It also pro- 2.6 Redelegation of authority. vides for exercise of authorities that 2.7 General delegations. have been transferred to the Director 2.8 Designation of subordinates to act. by Reorganization Plan or delegated to

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the Director by Executive Order or (i) Section 16 of the Federal Fire Pre- other appropriate document. vention and Control Act of 1974 (15 U.S.C. 2215); § 2.2 Organization of FEMA. (ii) Section 1320 of the National Flood (a) The Director is the head of Insurance Act (42 U.S.C. 4027); FEMA. All authorities of FEMA are ei- (iii) Section 1234 of the National ther vested in the Director by statute Housing Act (12 U.S.C. 1749bbb–10d); or have been transferred to or dele- (iv) Section 406 of the Federal Civil gated to the Director. Notwithstanding Defense Act of 1950, as amended (50 any delegation by the Director to a U.S.C. App. 2258); subordinate officer of FEMA, the Di- (v) Section 5(b)(1)(D) of the Earth- rector may also exercise such author- quake Hazards Reduction Act of 1977 ity. (42 U.S.C. 7704(b)(1)(D)); and (b) FEMA is composed of the Offices, (vi) Section 2–105 of Executive Order Administrations, and Directorates, the 12148 of July 20, 1979. responsibilities of which are described (2) Authorities connected with dec- in §§ 2.11 through 2.44. laration of major disasters and emer- (c) The Executive Board of FEMA gencies, and with delegations to other consists of the senior managers ap- agencies including: pointed by the President and confirmed (i) The authority to make rec- by the Senate as well as representa- ommendations to the President con- tives of the Regional Directors and cerning the determination that an other senior managers as the Director emergency exists pursuant to section shall designate from time to time. The 501 of the Robert T. Stafford Disaster principal function of the Executive Relief and Emergency Assistance Act Board is to review the Agency’s overall (42 U.S.C. 5191); direction, performance, and policies. (ii) The authority to make rec- The Executive Board will hold regular ommendations to the President con- meetings on a quarterly basis and may cerning the issuance of a major dis- hold special meetings at the discretion aster declaration pursuant to section of the Director. 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act § 2.3 Exercise of authority. (42 U.S.C. 5170); and Exercise of the authority delegated (iii) Provision is made in § 2.11 of this by this subpart or redelegated pursuant part for the Deputy Director to exer- to this subpart is subject to the direc- cise the authorities set out in this tion, control, and authority of the Di- paragraph when the Director is un- rector, and is governed by applicable available due to illness or incapacity. laws, Executive Orders, Federal agency (3) Authorities relating to voluntary regulations or issuances applicable to agreements under section 708 of the De- FEMA. Such exercise is also governed fense Production Act (50 U.S.C. App. by regulations issued by FEMA, and by 2158) delegated to the Director in sec- policies, objectives, directives, manu- tion 501 of Executive Order 10480. als, instructions, plans, standards, pro- (4) Authority to make the determina- cedures and limitations issued from tion concerning Federal operation of time to time by or on behalf of the Di- the program and the report to Congress rector. under section 1340 of the National Flood Insurance Act (42 U.S.C. 4071). § 2.4 General limitations and reserva- (5) Authority to appoint Federal Co- tions. ordinating Officers under section 302 of (a) All powers and duties not dele- the Robert T. Stafford Disaster Relief gated by the Director in this subpart, and Emergency Assistance Act (42 nor otherwise provided for in Title 44, U.S.C. 5143). are reserved to the Director. (b) The following specific authorities § 2.5 Delegations not included. are reserved to the Director: Other delegations of authority have (1) Certain authorities relating to re- been and will be made in other FEMA porting to Congress and the President regulations and by internal FEMA di- including those under: rectives that concern internal FEMA

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policies and operations. These are valid chapter, unless otherwise specifically delegations. Without in any way lim- provided, may be redelegated in whole iting the number of those delegations, or in part provided any such redelega- and without describing all of them in tion is in writing and approved by the this listing which is not complete, they officer to whom the authority is ini- include those: tially delegated. This restriction does (a) Delegations concerning Federal not apply to a temporary redelegation personnel matters such as those con- of authority to a principal deputy or cerning appointing authority, com- first assistant to be exercised during pensation, and so on. These are consid- the absence of the delegating official. ered internal personnel rules and are (b) The authority to issue regulations not published in this chapter but are having general applicability and future published in a FEMA Instruction. effect designed to implement, interpret (b) Delegation to the General Counsel or prescribe law or policy, and which as Ethics Counselor under 5 CFR part are to be published in the FEDERAL 2638. REGISTER, may be delegated or redele- (c) Delegations under parts 5 and 6 of gated only to positions for which it is this subchapter relating to the Free- required that the incumbent be con- dom of Information Act and Privacy firmed by the United States Senate. Act. This does not prohibit an acting offi- (d) Delegations to several officials re- cial from issuing regulations. This lating to authentication of records paragraph does not apply to rules under 44 CFR 5.82. issued under parts 64, 65, 67, or 70 of (e) Delegations to the General Coun- this title. sel and Chief Financial Officer with respect to claims under part 11 of this § 2.7 General delegations. subchapter. (a) This section sets forth general (f) Delegations to classify informa- delegations to the officers or employ- tion originally as Secret or Confiden- ees named in paragraph (b) of this sec- tial. tion. (g) Delegations to make certifi- (b) The officers authorized to exer- cations and findings under the Regu- cise authorities in paragraph (c) of this latory Flexibility Act, 5 U.S.C. 601–612; section are: the National Environmental Policy (1) Deputy Director; Act, 42 U.S.C. 4321–4335; the Paperwork (2) Chief of Staff; Reduction Act, 44 U.S.C. 3501–3520; E.O. (3) Inspector General; 12612 of October 26, 1987, 3 CFR, 1987 (4) General Counsel; Comp., p. 252; E.O. 12778 of October 23, 1991, 3 CFR, 1991 Comp., p. 359; E.O. (5) Director of the Office of Congres- 12866 of September 30, 1993, 3 CFR, 1993 sional and Governmental Affairs; Comp., p. 638; and any other certifi- (6) Director of the Office of Emer- cations or findings required by existing gency Information and Public Affairs; or future laws, executive orders, or (7) Director of the Office of Policy other authorities; and Assessment; (h) Delegations concerning environ- (8) Director of the Office of Human mental matters under part 10 of this Resources Management; subchapter; and (9) Director of the Office of Equal (i) Delegations concerning floodplain Rights; management and wetlands protection (10) Chief Financial Officer; matters under part 9 of this sub- (11) Director of the Office of Regional chapter. Operations; (12) Regional Directors; § 2.6 Redelegation of authority. (13) Federal Insurance Administrator; (a) It is FEMA’s policy that the au- (14) United States Fire Adminis- thorities delegated by this chapter trator; should, whenever appropriate, be re- (15) Associate Director for Mitiga- delegated to the manager or official tion; who has immediate responsibility for (16) Associate Director for Prepared- the action. Authority delegated by this ness, Training, and Exercises;

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(17) Associate Director for Response facilities of foreign governments or and Recovery; and international organizations, which (18) Associate Director for Operations must be approved by the Director; or Support. the authority to approve acceptance by (c) Each officer named in paragraph employees of contributions or awards (b) of this section is authorized to: from non-Government organizations, (1) Approve official travel as tem- whether in cash or in kind, which must porary duty travel on official business be approved by the Director. and allowable expenses incidental (9) Adjust working hours for indi- thereto for employees of their respec- vidual employees when there is special tive organizational units, in accord- justification therefor that it is in the ance with the Federal Travel Regula- interest of FEMA or to accommodate tions; except that travel to and from individual needs of employees for le- points outside of the United States is gitimate reasons where the work of the subject to prior notification to the Di- agency will not be impeded. rector and foreign travel (i.e., travel (10) Approve incentive awards to sub- outside the United States and its insu- ordinates, Public Service Awards, cash lar areas) is subject to prior approval awards of $1,500 or less for individuals of the Director. However, no officer or and quality within-grade salary in- employee may approve his or her own creases. travel. Travel of officers named in (11) Enter into and administer funded paragraph (b) of this section is ap- and unfunded memoranda of under- proved by the Deputy Director or the standing with respect to assigned du- Chief of Staff, except that travel of a ties. Regional Director may be approved by (12) Classify documents derivatively, the Deputy Regional Director for that based on the original classification by Region. other Federal agencies or the Director. (2) Approve travel advances of funds through disbursing officers or imprest § 2.8 Designation of subordinates to fund cashiers for employees of the re- act. spective organizational units who are Each officer named in § 2.7(b) shall: entitled to per diem or mileage allow- (a) Submit to the Director, for ap- ance or subsistence expenses in accord- proval, a list of three or more subordi- ance with the Federal Travel Regula- nates to act for such officer during his tions. or her absence; and (3) Approve travel vouchers for em- (b) Ensure that each Division Direc- ployees of their respective organiza- tor, Branch Chief, or head of any other tional units. organizational unit under that officer’s (4) Approve travel by employees of authority designate one or more subor- their respective organizations at the dinate employees to serve as acting invitation and expense of parties out- head of the unit during the absence of side of the Federal Government, with the head of a unit or during a vacancy the concurrence of the Designated in the position. Agency Ethics Officer (DAEO) or a Deputy DAEO; FEMA OFFICES (5) Approve funding requisitions; (6) As appropriate, issue final agency § 2.11 Office of the Director. decisions on individual or class com- The Deputy Director is the first as- plaints of discrimination because of sistant to the Director under the Va- race, color, national origin, religion, cancies Act, 5 U.S.C. 3341 et seq., and sex, disability, age, or economic status. acts in place of the Director when the (7) Promulgate internal guidance to Director is not available because of ill- cover areas of assigned responsibilities. ness or incapacity. The Deputy Direc- (8) Approve training costing less than tor is the Chief Operating Officer of the $2500 (all expenses) or training of less Agency, with the duties and powers set than 80 hours in duration, whichever is forth in Presidential Memorandum of more restrictive, except that this au- October 1, 1993, ‘‘Implementing Reform thority does not include authority to in the Executive Branch.’’ The Deputy approve training involving the use of Director is authorized to exercise the

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duties and powers of the Director as ministrative issuances, and judicial necessary to carry out the responsibil- precedents to Agency operations; ities of the Chief Operating Officer and (2) Review for legal sufficiency of all to act in place of the Director in the Agency documents requiring legal in- Director’s unavailability. terpretation or opinion. (3) Establishment of Agency policy § 2.12 Office of the Inspector General. for and conduct of all appearances on (a) Mission. The Office of the Inspec- behalf of FEMA in litigation or admin- tor General serves FEMA as an inde- istrative proceedings and hearings; pendent unit to promote economy, effi- (4) Liaison to the Department of Jus- ciency, and effectiveness; to prevent tice except when otherwise provided by waste, fraud, and abuse; and to keep the Office of the Inspector General. the Congress and the Director fully in- (5) Coordination of the FEMA regu- formed on these subjects. latory program, including liaison to (b) Functions. The principal functions the Office of Management and Budget of the Office of the Inspector General and the Office of the Federal Register; are: (6) Operation of the FEMA legislative (1) Performance of all audit functions reference program, including liaison to relating to programs and operations of the Office of Management and Budget FEMA; and allied legislative proposals; and (2) Inspection of agency activities to (7) Operation of FEMA’s ethics pro- identify actual or potential fraud, gram and Freedom of Information Act waste, abuse, or mismanagement and and Privacy Act program. to develop recommendations for cor- (c) Delegated authorities. The General rective action; Counsel is authorized to exercise the (3) Investigation of allegations of il- duties and powers of the Director to: legal, unethical, or other activities (1) Accept service of process on behalf that may lead to civil or criminal li- of the Agency, and on behalf of its offi- ability on the part of FEMA or its em- cials and employees in connection with ployees, contractors, or program par- performance of their official duties; ticipants; and (2) Determine the agency’s position (4) Referral of potential criminal with respect to litigation and refer prosecutions to the Department of Jus- matters directly to the Attorney Gen- tice, under 28 U.S.C. 535. eral for prosecution or for initiation of (c) Authority. The position of Inspec- litigation; tor General of FEMA is created by (3) Determine the government’s posi- statute (The Inspector General Act of tion in connection with any dispute be- 1978, as amended, 5 U.S.C. App. 3 §§ 1– fore a Board of Contract Appeals, in- 15). The Inspector General is author- cluding the authority to settle or ad- ized to exercise the duties and powers just any such claim. set forth in that statute. (4) Consider, compromise and settle tort claims against FEMA, but any § 2.13 Office of the General Counsel. award, compromise, or settlement of (a) Mission. The Office of the General more than $25,000 requires the prior Counsel renders legal advice and assist- written approval of the Attorney Gen- ance on all matters related to Agency eral or designee; programs and operation, and conducts (5) Serve as the Designated Agency the Agency’s ethics program and Free- Ethics Officer; dom of Information Act/Privacy Act (6) Make technical corrections to all program. FEMA documents, including rules and (b) Functions. The principal functions regulations submitted to the FEDERAL of the Office of the General Counsel REGISTER; are: (7) Consider, compromise and settle (1) Rendering legal opinions and ad- personnel claims of less than $15,000 vice with respect to the duties, powers, against FEMA; and responsibilities of the Director, (8) Waive claims of the United States FEMA, and other Agency officers and against a person arising out of pay and employees and the applications of stat- allowances to an employee of FEMA in utes, rules and regulations, other ad- amounts of not more than $1,500, and in

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accordance with the requirements of 5 (c) Delegated authorities. The Director U.S.C. 5584, and the implementing reg- of the Office of Emergency Information ulations and standards of the Comp- and Public Affairs is authorized to ex- troller General; and ercise the duties and powers of the Di- (9) Enter into ratification agree- rector in the Director’s capacity as ments at the direction of the Depart- agency head as set forth in paragraph ment of Justice in order to insure that (b) of this section. FEMA’s subrogation interest will be represented. § 2.16 Office of Policy and Assessment. § 2.14 Office of Congressional and Gov- (a) Mission. The Office of Policy and ernmental Affairs. Assessment manages and facilitates (a) Mission. The Office of Congres- policy development, strategic plan- sional and Governmental Affairs co- ning, planning, performance standards ordinates FEMA’s ongoing emergency and assessment, innovation, and orga- management relationships with the nizational development to achieve Congress, public interest groups, and FEMA’s overall mission. State and local organizations. (b) Functions. The principal functions (b) Functions. The principal functions of the Office of Policy and Assessment of the Office of Congressional and Gov- are: ernmental Affairs are: (1) Facilitation of the development (1) Liaison with Congress, the Office and implementation of Agency policy, of Management and Budget, and the including systematic review and eval- White House on legislative matters di- uation of that policy; rectly affecting FEMA; (2) Development and coordination of (2) Advising the Director and other FEMA’s strategic planning process; FEMA officials on actions pending or (3) Development of standards and anticipated in Congress; mechanisms for evaluation of Agency (3) Liaison with Federal Coordinating performance; Officers following declarations of disasters or emergencies under the Stafford (4) Development and implementation Act, on matters requiring coordination of a system for identifying shortfalls in with Congress; and Agency programs and performance and (4) Liaison with FEMA’s constitu- for monitoring progress towards their encies on FEMA legislative matters. remediation; (c) Delegated authorities. The Director (5) Oversight of FEMA’s implementa- of the Office of Congressional and Gov- tion of the Government Performance ernmental Affairs is authorized to ex- and Results Act of 1993, Pub. L. 103–62, ercise the duties and powers of the Di- 107 Stat. 285. rector in the Director’s capacity as (6) Oversight of implementation of agency head in support of the functions FEMA’s environmental responsibil- listed in paragraph (b) of this section. ities; (7) Support of the FEMA Executive § 2.15 Office of Emergency Information and Public Affairs. Board; (8) Oversight of, and provision of (a) Mission. The Office of Emergency guidance for, FEMA’s renewal and par- Information and Public Affairs informs ticipation in the Reinvention Labora- the public about FEMA’s programs and tory process; and activities, both in time of disaster and in other times. (9) Facilitating institutional change (b) Functions. The principal functions and innovation. of the Office of Emergency Information (c) Delegated authorities. The Director and Public Affairs are: of the Office of Policy and Assessment (1) Gathering and dissemination of is authorized to exercise the duties and information about FEMA’s programs powers of the Director in the Director’s and activities; capacity as agency head in support of (2) Liaison with news media; the functions listed in paragraph (b) of (3) Management of Joint Information this section. Centers during disasters.

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§ 2.17 Office of Human Resources Man- (2) Training regarding Equal Rights agement. and Civil Rights and Responsibilities; (a) Mission. The Office of Human Re- (3) Investigation and non-adjudica- sources Management provides and tory resolution of complaints of dis- maintains a workforce capable of car- crimination and referral of unresolved rying out FEMA’s mission. complaints to the Equal Employment (b) Functions. The principal functions Opportunity Commission or the De- of the Office of Human Resources Man- partment of Justice; and agement are: (4) Ensuring compliance with Civil (1) Administration of FEMA’s classi- Rights guidance in FEMA’s programs fication and position management pro- and operations. grams; (c) Delegated authorities. The Director (2) Recruitment and placement of of the Office of Equal Rights is author- employees; ized to exercise the duties and powers (3) Administration of compensation of the Director as set forth in: and leave programs; (1) E.O. 12336, as amended; (4) Management of FEMA’s disaster (2) E.O. 12250; personnel program; (3) E.O. 12067, as amended; (5) Administration of workforce and (4) E.O. 11478, as amended; workplace programs; (5) E.O. 11141; and (6) Management of FEMA’s labor re- (6) E.O. 11063, as amended. lations, employee relations, and employee benefit programs; § 2.19 Office of Financial Management. (7) Administration of performance management and incentive awards pro- (a) Mission. The Office of Financial grams; Management promotes sound financial (8) Establishment and maintenance management and accountability of personnel records; and throughout the Agency by providing fi- (9) Coordination of affirmative em- nancial guidance, information, and ployment programs with the Office of services to FEMA management, its em- Equal Rights and support of FEMA’s ployees, and the Agency’s customers. Offices, Administrations, and Direc- (b) Functions. This office reports di- torates in meeting their affirmative rectly to the Director of FEMA regard- actions goals. ing financial management matters and (c) Delegated authorities. The Director is headed by the Chief Financial Offi- of the Office of Human Resources Man- cer. The principal functions of the Of- agement is authorized to exercise the fice of Financial Management are: duties and powers of the Director in (1) Oversight of all financial manage- the Director’s capacity as agency head ment activities relating to the pro- in support of the functions listed in grams and operations of the Agency, paragraph (b) of this section. including fund manager for all Agency funds; § 2.18 Office of Equal Rights. (2) Development, operation, and (a) Mission. The Office of Equal maintenance of an integrated Agency Rights assists management in fulfilling accounting and financial management its responsibilities to ensure Equal system, including internal and external Rights for all employees and applicants financial reporting; for employment, and to guarantee pro- (3) Oversight of the Agency’s internal tection for the civil rights of every control guidance and review program; American receiving assistance from (4) Direction, management, and pro- FEMA. vision of policy guidance and oversight (b) Functions. The principal functions of Agency financial management per- of the Office of Equal Rights are: sonnel, activities, and operations; (1) Development, in coordination (5) Preparation of the annual report with Agency management, of multi- described in 31 U.S.C. 902(a)(6) to the year Affirmative Employment Plans Director of FEMA and to the Office of and annual updates covering women, Management and Budget; minority group members, and persons (6) Oversight of and responsibility for with disabilities; the formulation and execution of the

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Agency’s budget and accounts for ac- programmatic proposals to provide ad- tual expenditures; vice to the Director on the financial (7) Preparation and submission of implications of such proposals. timely performance reports to the Di- (6) Develop and implement Agency rector of FEMA and operating units; asset management systems, including (8) Review, on a biennial basis, of the systems for cash management, credit fees, royalties, rents, and other charges management, debt collection, and imposed by the Agency for services and property and inventory management things of value it provides, and rec- and control. ommendation of revision of those (7) Review on a biennial basis the charges to reflect costs incurred by the fees, royalties, rents and other charges Agency in providing those services and imposed by the Agency for services and things of value. things of value it provides, and make (c) Authority. The position of Chief recommendations to the Director on Financial Officer was created by stat- revising those charges to reflect actual ute (Agency Chief Financial Officers costs incurred by the Agency in pro- Act, as amended, 31 U.S.C. 901–1114, viding those services and things of 3511–3521). The Chief Financial Officer value. Premiums and other policy hold- is authorized to exercise the duties and er charges that relate to the issuance powers set forth in that statute. The of policies (National Flood Insurance Chief Financial Officer is specifically and Crime Insurance programs) are set authorized to: by the Federal Insurance Adminis- (1) Supervise the activities and func- trator pursuant to Federal law and reg- tions of the Office of the Financial ulation. Management and oversee all financial (8) Develop, operate and maintain an management activities relating to the Administrative Fund Control System programs and operations of the Agen- that provides, for accurate and timely cy. data on the status of each account. (2) Direct, manage, and provide pol- This Administrative Fund Control Sys- icy guidance and oversight of the Agen- tem shall comply with appropriate cy financial management personnel, statutory requirements and regula- activities and operations. tions issued by General Accounting Of- (3) Establish and maintain an inte- fice, Office of Management and Budget, grated Agency accounting and finan- the Department of the Treasury, and cial management system, including fi- other central administrative agencies. nancial reporting and internal con- (9) Establish and maintain the appro- trols, that— priate accounts designated by the De- (i) Complies with applicable account- partment of the Treasury, the General ing principles, standards, and require- Accounting Office, and Office of Man- ments and standards prescribed by the agement and Budget and such sub- Office of Management and Budget, the sidiary records as may be necessary for General Accounting Office, and the De- accounting, audit and management partment of the Treasury; purposes. Establish and maintain con- (ii) Provides for complete, reliable trols for appropriations and other spe- and timely information, that is pre- cial limitations required by law. Main- pared on a uniform basis, and that is tain reliable accounting records that responsive to the financial manage- will be the basis for preparing and sup- ment needs of the Agency; and, porting the budget requests of the (iii) Complies with any other require- Agency, controlling the execution of ments applicable to such systems. the budget and providing financial in- (4) Prepare and submit a financial formation required by law and regula- statement that conforms to the re- tion. quirements of 31 U.S.C. 902 and 3515. (10) Oversee the implementation of Develop and implement the 5-year fi- internal control systems that conform nancial management plan as required with rules, circulars, and other direc- by 31 U.S.C. 902(a)(5). tives issued by General Accounting Of- (5) Develop the Agency’s financial fice, Office of Management and Budget, management plans and budgets, and re- and the Department of the Treasury. view legislative proposals and other Report to the Director, as required by

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law and regulation, whether the Agen- records and documents is subject to the cy’s internal control systems and other limitations in 31 U.S.C. 902(b)(2). financial systems and processes comply with applicable law and regulation. § 2.20 Office of Regional Operations. (11) Develop and implement adminis- (a) Mission. The Office of Regional trative standards and cost principles Operations coordinates FEMA’s poli- for the Agency’s assistance programs cies, programs, and administrative and in conformity with rules, circulars, and management guidance with Regional other directives that are issued by the Directors and ensures that regional im- General Accounting Office, the Office plementation is consistent with the Di- of Management and Budget, and the rector’s goals. Department of the Treasury. (b) Functions. The principal functions (12) Develop and maintain procedures of the Office of Regional Operations for approving requisitions for dis- are: bursing funds, reports of current ac- (1) Liaison between the Regional Di- counts rendered by disbursing officers, rectors and the Director, Associate Di- and other financial and accounting rectors, Administrators, and Office Di- documents involving FEMA, the Gen- rectors; eral Accounting Office, the Department (2) Advising the Director, Associate of the Treasury, and the Office of Man- Directors, Administrators, and Office agement and Budget. Directors on regional matters; and (13) Certify to the General Account- (3) Providing guidance to Regional ing Office any charge against any offi- Directors on policy, programs, oper- cer or agent entrusted with public ations, and administrative matters. property, arising from any loss and accruing by this person’s fault, to the (c) Delegated authorities. The Director Government as to the property so en- of the Office of Regional Operations is trusted to this person. authorized to exercise the duties and (14) Approve all expenditures and re- powers of the Director in the Director’s ceipt all vouchers and other documents capacity as agency head in support of necessary to carry out FEMA’s appro- the functions listed in paragraph (b) of priations and programs. this section. (15) Certify that all required docu- § 2.21 Ombudsman. [Reserved] ments, information and approvals respecting fiscal transactions are § 2.22 Regional Offices. present; verify or cause to be verified the accuracy of the financial computa- (a) Mission. The Regional Offices im- tions, the consistency of the informa- plement FEMA’s policies and programs tion included in the various docu- at the regional level. ments; and determine, or cause to be (b) Functions. The principal functions determined, that the financial trans- of the Regional Offices are: actions of the Agency are in strict ac- (1) Liaison, within the regions, with cordance with the law, regulations and other Federal agencies, State and local decisions. governments, voluntary and other pri- (16) Authorize officers and employees vate organizations, and the public; to certify vouchers. (2) Recommendations to the Director (17) Receive and credit amounts re- on implementation of policy and im- ceived to the applicable appropriation provement of the administration of of FEMA or to the miscellaneous re- FEMA’s programs; ceipts account. (3) Administration of Comprehensive (18) Request cashier designation and Cooperative Agreements, grants, and resolution from the Department of the other financial assistance to State and Treasury, and designate cashiers to local governments; serve in FEMA. (4) Response to disasters and emer- (19) Approve invitational travel for gencies declared under the Stafford the Office of Financial Management. Act, through Regional Response (20) Have access to records and docu- Teams; ments as required by 31 U.S.C. 902(b) (5) Recovery activities under the (1)(A), (1)(B), and (1)(C). Access to Stafford Act;

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(6) Implementation of floodplain ance programs for other natural haz- management aspects of the National ards; and Flood Insurance Program; (5) Administration of the National (7) Management of training and field Flood Insurance Fund and National In- exercises; and surance Development Fund. (8) Technical assistance to Federal (c) Delegated authorities. The Federal agencies, State and local governments, Insurance Administrator is authorized and voluntary and other private orga- to exercise the duties and powers of the nizations regarding emergency re- Director as set forth in section 1–104 of sponse planning, preparedness, mitiga- E.O. 12127 insofar as it pertains to the tion, response, and recovery. marketing, issuance, and servicing of (c) Delegated authorities. In general, insurance under the NFIP and FCIP. Regional Directors are authorized, within their respective regions, to ex- § 2.32 United States Fire Administra- ercise the duties and powers of the Ad- tion. ministrators and Associate Directors (a) Mission. The United States Fire as set forth in §§ 2.32 through 2.44. How- Administration works to reduce ever, the authorities of the Earthquake deaths, injuries, and property loss Hazards Reduction Act of 1977, as caused by fires in the United States. amended, 42 U.S.C. 7701 et seq., are not (b) Functions. The principal functions delegated to Regional Directors (except of the United States Fire Administra- for the authority of 42 U.S.C. tion are: 7704(b)(2)(A)(i), which is delegated). In (1) Education of the public about fire addition, the authorities of the Federal problems and high fire risk behaviors; Insurance Administrator as set forth in (2) Providing training and technical § 2.31 are not delegated to the Regional assistance to fire and emergency serv- Directors. ices providers in incident response, ADMINISTRATIONS mitigation and management; (3) Collection and analysis of fire in- § 2.31 Federal Insurance Administra- cident information; tion. (4) Investigation of technologies, (a) Mission. The Federal Insurance equipment, and strategies for fire and Administration markets, issues, and emergency services providers; services insurance policies under the (5) Coordination with State and local National Flood Insurance Program fire and emergency agencies con- (NFIP) and the Federal Crime Insur- cerning arson investigation and miti- ance Program (FCIP), with assistance gation, use of building and fire codes, from private insurance companies and fire protection and multi-agency co- servicing contractors. operation; and (b) Functions. The principal functions (6) Management and operation of the of the Federal Insurance Administra- National Emergency Training Center, tion are: Emmitsburg, Maryland. (1) Establishment of regulations, pol- (c) Delegated authorities. The United icy guidelines, standard contracts of States Fire Administrator is author- insurance, and insurance rates for the ized to exercise the duties and powers NFIP and FCIP; of the Director as set forth in section (2) Establishment of policy, plans, 1–103 of E.O. 12127. and procedures for evaluation, payment, and review of insurance claims; DIRECTORATES (3) Oversight of servicing contracts for the NFIP and FCIP and the § 2.41 Mitigation Directorate. issuance and servicing of flood insur- (a) Mission. The Mitigation Direc- ance policies by Write-Your-Own torate administers programs to reduce (WYO) carriers; or eliminate loss of life and property (4) Studies of the costs and feasibility from natural and technological haz- of proposed extensions of the National ards. Flood Insurance Program or of the pro- (b) Functions. The principal functions posed establishment of Federal insur- of the Mitigation Directorate are:

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(1) Identifying and assessing the risks ized to exercise the duties and powers posed by natural and technological of the Director as set forth in: hazards, except that, on issues of tech- (1) 33 U.S.C. 467h, 709b, insofar as it nological risk assessment, FEMA will pertains to the Dam Inspection Pro- defer to the Agency having primary re- gram; sponsibility in the specific area, nota- (2) Section 1–104 of E.O. 12127 insofar bly the Nuclear Regulatory Commis- as it pertains to: sion (NRC) regarding accidents at com- (i) Determining the eligibility of mercial nuclear power plants, and the communities to participate in the Na- United States Army regarding chem- tional Flood Insurance Program; ical weapons; (ii) Identification of flood-prone (2) Developing mitigation policies areas; and strategies for implementing pro- (iii) Determination of inclusion or grams designed to reduce or eliminate non-inclusion of properties within the loss of life and property from natural Coastal Barrier Resources System es- and technological hazards; tablished by 16 U.S.C. 3503 or within an (3) Coordinating with other Federal otherwise protected area; agencies and the scientific community (iv) Determination of projected flood on matters that will enhance FEMA’S elevations for State and local govern- ability to reduce or eliminate loss of ments to use in adopting flood plain life and property from natural and management laws, regulations or ordi- technological hazards; nances; (4) Transferring information on the (v) Establishment of criteria for land risks posed by natural and techno- management and use, flood control, logical hazards to other Federal agen- flood zoning, and flood damage protec- cies and State and local government tion; and officials, and the public; (vi) Purchase of properties insured (5) Promoting a multi-hazard ap- under the National Flood Insurance proach to mitigation at State and local Program that have been damaged sub- levels; stantially beyond repair by flood; (6) Coordinating with national associations whose membership, expertise, (3) E.O. 11988; and standard-setting capabilities en- (4) The following sections of E.O. hance the reduction of risks associated 12148, as amended: with natural and technological haz- (i) Section 4–203, insofar as it per- ards; tains to hurricane preparedness, as set (7) Providing for the dissemination of forth in section 201 of the Robert T. information and delivery of technical Stafford Disaster Relief and Emer- assistance to build mitigation capabili- gency Assistance Act, 42 U.S.C. 5131; ties and promote mitigation activities; (ii) Section 4–203, insofar as it per- (8) Carrying out hazard mitigation tains to hazard mitigation set forth in activities of the Stafford Act, includ- sections 404, 406, 409, and 411 of the ing the processing of applications for Robert T. Stafford Disaster Relief and hazard mitigation grants, disburse- Emergency Assistance Act, 42 U.S.C. ment of funds under section 404 of the 5170, 5172, 5176, and 5178; Stafford Act, and administrative re- (iii) Section 4–204, pertaining to sponsibilities in support of these ac- earthquake hazards reduction as set tivities; forth in the Earthquake Hazards Re- (9) Management of Comprehensive duction Act of 1977, as amended, 42 Cooperative Agreements with the U.S.C. 7701–7706; and States, through which the Mitigation (5) E.O. 12699. programs are implemented in the regions; and § 2.42 Preparedness, Training, and Ex- (10) Establishment of Agency Geo- ercises Directorate. graphic Information Systems (GIS) re- (a) Mission. The Preparedness, Train- quirements and an Agency-wide GIS ing, and Exercises Directorate supports policy. the emergency preparedness, training, (c) Delegated authorities. The Asso- and exercises capabilities of Federal, ciate Director for Mitigation is author- State and local governments.

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(b) Functions. The principal functions ernments, volunteer organizations, and of the Preparedness, Training, and Ex- the private sector. ercises Directorate are: (b) Functions. The principal functions (1) Management of programs to es- of the Response and Recovery Direc- tablish, maintain, and enhance the ca- torate are: pabilities of Federal, State, and local (1) Management of Disaster Assist- governments to prepare for, respond to, ance, including damage assessment, recover from a broad range of emer- recommendations to the President on gencies, including such programs as declaration of disasters or emergencies the Radiological Emergency Prepared- under the Robert T. Stafford Disaster ness (REP) Program, Chemical Stock- Relief and Emergency Assistance (Staf- pile Emergency Preparedness Program ford) Act, 42 U.S.C. 5121–5201, proc- (CSEPP), and the delegated respon- essing of applications for disaster as- sibilities under the Federal Civil De- sistance and disbursement of Federal fense Act of 1950, as amended (50 U.S.C. disaster assistance funds, except for App. 2251–2303); hazard mitigation assistance provided (2) Management of Comprehensive under section 404 of the Stafford Act, 42 Cooperative Agreements with the U.S.C. 5170c. States, through which agreements the (2) Coordination among Federal agen- above programs are implemented in cies, State and local governments, and the regions; the American Red Cross of the ongoing (3) Training of Federal, State, and development and the implementation local government employees to prepare of the Federal Response Plan (for im- for, respond to, recover from a broad plementation of Pub. L. 93–288, as range of emergencies; amended) and associated plans for re- (4) Testing of Federal, State, and sponse to and recovery from a broad local emergency preparedness and re- range of disasters; sponse procedures through a com- (3) Support of communications and prehensive exercise, evaluation and Automated Data Processing (ADP) ca- corrective action program; and pabilities for interagency operations (5) Recommendation of policy for all- during a wide range of emergencies; hazard emergency preparedness and and provision of implementation guidance, (4) Maintaining the continuity of es- as required by statute, international sential functions of the Federal Gov- agreement, or executive order. ernment during a wide range of emer- (c) Delegated authorities. The Asso- gencies. ciate Director for Preparedness, Train- (c) Delegated authorities. The Asso- ing, and Exercises Directorate is au- ciate Director for Response and Recov- thorized to exercise the duties and ery is authorized to exercise the duties powers of the Director as set forth in: and powers of the Director as set forth (1) E.O. 10480, as amended; in: (2) E.O. 11179, as amended; (1) Sections 2–102 and 4–203, Executive (3) Sections 1–103(b) and 1–105, E.O. Order 12148, as amended, except insofar 12127; as they pertain to hazard mitigation (4) Section 1–101, E.O. 12148; assistance; and (5) E.O. 12241; (2) Section 202, Executive Order 12656. (6) E.O. 12656, other than section 202; (7) E.O. 12657; and § 2.44 Operations Support Directorate. (8) E.O. 12742. (a) Mission. The Operations Support Directorate provides direct support and § 2.43 Response and Recovery Direc- services to FEMA’s all-hazards emer- torate. gency management program of mitiga- (a) Mission. The Response and Recov- tion, preparedness, response and recovery Directorate maintains an inte- ery. grated operational capability to re- (b) Functions. The principal functions spond to and recover from the con- of the Operations Support Directorate sequences of a disaster, regardless of are: its cause, in cooperation with other (1) Services primarily for the support Federal agencies, State and local gov- of internal functions, including:

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(i) Management and oversight of the tual actions under paragraph 21 of Ex- Agency’s procurement system, includ- ecutive Order 10789. ing acquisition of supplies and services; (iii) Exercise authority delegated to (ii) Printing and publications; the Director by Executive Order 12352 (iii) Telecommunications operations; and act as procurement executive. (iv) Automated data processing; (2)(i) Make purchases and contracts (v) Software design and engineering; by advertising for equipment and sup- (vi) Records management; plies, administrative equipment, office (vii) Agency-wide logistics and prop- supplies, professional services, trans- erty management; portation of persons and property, and (viii) Protection of personnel, facili- nonpersonal services, and determine ties, and equipment; that the rejection of any bid is in the (ix) Management of transit subsidies; public interest; (x) Preparation of visual presen- (ii) Negotiate purchases and con- tations materials; tracts for equipment and supplies, pro- (xi) Placement of advertisements in fessional services, transportation of general circulation newspapers; and persons and property, and non-personal (2) Services that support organiza- services without advertising; and make tions outside of FEMA as well as the and issue determinations related there- agency itself, including: to pursuant to section 302(c) (1)– (i) Telecommunications design and (b)(10)(10), (14) and (15) of the Federal engineering; Property and Administrative Services (ii) Resource and economic modeling; Act of 1949 (41 U.S.C. 252(c) (1)–(10), (14) (iii) Management of data storage and and (15)) and 40 U.S.C. 541–544 with reproduction associated with Geographic spect to contracting for services of Ar- Information Systems (GIS) and other chitects Engineers; analytic systems; (iv) Security of classified records; (iii) Enter into and administer inter- (v) Security of classified communica- agency agreements under the Economy tions; Act or any other such agreement in- (vi) Background investigations for volving obligation of funds; the granting of security clearances; (3) Notwithstanding any general dele- (vii) Determination of suitability for gation of statutory authority in this employment under 5 CFR part 731; and part to another officer of FEMA, if the (viii) Control of public information authority delegated in the general collections. statutory delegation contains procure- (c) Delegated authorities. Subject to ment authority that authority is dele- the qualifications of paragraph (d) of gated solely to the Director, Acquisi- this section, the Associate Director for tion Services Division, with authority Operations Support is authorized to ex- to redelegate to any employee of ercise the duties and powers of the Di- FEMA. As used in this paragraph (d) rector as set forth in: the term ‘‘procurement’’ includes ac- (1) E.O. 10450, as amended; quisition from a recipient including a (2) E.O. 12046, as amended; State or local government, of property (3) E.O. 12356; and or services for the direct benefit or use (4) E.O. 12472. of the Federal Government. This in- (d) Authorities delegated directly to the cludes authority under section 201(h) of Director, Acquisition Services Division. the Federal Civil Defense Act but ex- The Director, Acquisition Services Di- cludes authority under section 1362 of vision, Operations Support Directorate, the National Flood Insurance Act. is authorized to: (4) Notwithstanding any general dele- (1)(i) Exercise authority under sec- gation of authority in this part to an- tion 104(h) of the Comprehensive Envi- other officer of FEMA, other than the ronmental Response, Compensation delegation to Regional Directors under and Liability Act of 1980 delegated to § 2.22, if the authority delegated con- the Director by section 2(f) of Execu- tains authority to award discretionary tive Order 12316; grants that authority is delegated to (ii) Exercise authority of the Direc- the Director, Acquisition Services Di- tor concerning extraordinary contrac- vision, who is authorized to exercise

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the authority of the Director with re- Current spect thereto. The Director, Acquisi- OMB control No. tion Services Division, may redelegate this authority to any employee of 11.36 ...... 3067–0122 FEMA. Discretionary grants include 11.54 ...... 3067–0122 those instruments that are awarded to 11 subpart D ...... 3067–0167 59.22(a) ...... 3067–0020 a selected or limited number of recipi- 59.22(b)(2) ...... 3067–0018 ents deemed best qualified based upon 60.3, 60.4, 60.5 ...... 3067–0022 criteria designed for the conduct of a 61, 61 app. A(1), 61 app. B ...... 3067–0022 specific project. This can include gov- 62 subpart C, 62 app. A, 62 app. B ...... 3067–0169 ernments. Discretionary grants do not 63 subpart B ...... 3067–0196 include those awarded to recipients for 64.3(c) ...... 3067–0020 65 ...... 3067–0147 which: 66, 67 ...... 3067–0148 (i) The recipient or class of recipient 70 ...... 3067–0147 is mandated by legislation or regula- 71 ...... 3067–0120 tion; 75 subpart B ...... 3067–0127 (ii) The amount of the instrument or 80, 81, 83 ...... 3067–0031 the amount of the program is estab- 151 subpart B ...... 3067–0141 204 ...... 3067–0290 lished by legislation and discretion in 205.33 ...... 3067–0113 the award process is limited; or 205.34 ...... 3067–0113 (iii) There is no choice in the purpose 205.52(e) ...... 3067–0009 of the award or whether to make the 205.54(e) ...... 3067–0146 award. The delegation to the Regional 205.54(f), 205.54(j) ...... 3067–0163 Directors under § 2.22 to implement 205.59 ...... 3067–0166 205.94 ...... 3067–0034 various programs is not affected by 205.96 ...... 3067–0026 this delegation to the Director, Acqui- 205 subpart G ...... 3067–0066 sition Services Division. 205.116 ...... 3067–0151 205.200(b) ...... 3067–0048 205.207 ...... 3067–0048 Subpart B [Reserved] 205.208 ...... 3067–0048 206.35 ...... 3067–0113 Subpart C—OMB Control Numbers 206.36 ...... 3067–0113 206.101(e) ...... 3067–0009 § 2.80 Purpose. 206.131(e) ...... 3067–0146 206.131(f), 206.131(j) ...... 3067–0163 The purpose of this subpart is to dis- 206.171 ...... 3067–0166 play OMB control numbers assigned to 206.202(c) ...... 3067–0033 FEMA’s information collection re- 206.204 ...... 3067–0151 quirements. 206.364 ...... 3067–0034 206.366 ...... 3067–0026 § 2.81 OMB control numbers assigned 206 subpart L ...... 3067–0066 206.436 ...... 3067–0207 to information collections. 206.437 ...... 3067–0208 This section collects and displays the 206.405 ...... 3067–0212 control numbers assigned to informa- 220.6 ...... 3067–0168 tion collection requirements of FEMA 220.19 ...... 3067–0156 221.8 ...... 3067–0156 by OMB pursuant to the Paperwork Re- 222.5, 222.6 ...... 3067–0184 duction Act of 1980. FEMA intends that 302.3(a), 302.3(d) ...... 3067–0138 this section comply with the require- 302.3(b) ...... 3067–0123 ments of section 3507(f) of the Paper- 302.3(c)(1) ...... 3067–0096 work Reduction Act, which requires 302.3(c)(3) ...... 3067–0090 308.7 ...... 3067–0074 that agencies display a current control 352.4 ...... 3067–0201 number assigned by the Director of the 352.24 ...... 3067–0201 Office of Management and Budget for 360.4(c) ...... 3067–0100 each agency information collection re- 48 CFR part or section where identified or de- quirement. scribed: 4452.226–01(a) ...... 3067–0213 Current OMB control No. [59 FR 26133, May 19, 1994, as amended at 66 FR 57347, Nov. 14, 2001] 44 CFR part or section where identified or described: 7 subpart E ...... 3067–0177 PART 3 [RESERVED] 26

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PART 4—INTERGOVERNMENTAL RE- of the Demonstration Cities and Metro- VIEW OF FEDERAL EMERGENCY politan Development Act of 1966. MANAGEMENT AGENCY (FEMA) (b) These regulations are intended to PROGRAMS AND ACTIVITIES foster an intergovernmental partnership and a strengthened Federalism by Sec. relying on state processes and on 4.1 What is the purpose of these regula- State, areawide, regional and local co- tions? ordination for review of proposed Fed- 4.2 What definitions apply to these regula- eral financial assistance and direct tions? Federal development. 4.3 What programs and activities of FEMA (c) These regulations are intended to are subject to these regulations? 4.4 [Reserved] aid the internal management of FEMA, 4.5 What is the Director’s obligation with and are not intended to create any respect to Federal interagency coordina- right or benefit enforceable at law by a tion? party against FEMA or its officers. 4.6 What procedures apply to the selection of programs and activities under these § 4.2 What definitions apply to these regulations? regulations? 4.7 How does the Director communicate with State and local officials concerning FEMA means the Federal Emergency FEMA’s programs and activities? Management Agency. 4.8 How does the Director provide an oppor- Order means Executive Order 12372, tunity to comment on proposed Federal issued July 14, 1982, and amended April financial assistance and direct Federal 8, 1983 and titled ‘‘Intergovernmental development? 4.9 How does the Director receive and re- Review of Federal Programs.’’ spond to comments? Director means the Director of FEMA 4.10 How does the Director make efforts to or an official or employee of FEMA accommodate intergovernmental con- acting for the Director under a delega- cerns? tion of authority. 4.11 What are the Director’s obligations in interstate situations? State means any of the 50 states, the 4.12 How may a State simplify, consolidate, District of Columbia, the Common- or substitute federally required State wealth of Puerto Rico, the Common- plans? wealth of Northern Mariana Islands, 4.13 May the Director waive any provision Guam, American Samoa, the U.S. Vir- of these regulations? gin Islands, or the Trust Territory of AUTHORITY: E.O. 12372, July 14, 1982 (47 FR the Pacific Islands. 30959), as amended April 8, 1983 (48 FR 15887); sec. 401, Intergovernmental Cooperation Act § 4.3 What programs and activities of of 1968, as amended (31 U.S.C. 6506); sec. 204, FEMA are subject to these regula- Demonstration Cities and Metropolitan De- tions? velopment Act of 1966, as amended (42 U.S.C. 3334). The Director publishes in the FED- ERAL REGISTER a list of FEMA’s pro- SOURCE: 48 FR 29316, June 24, 1983, unless otherwise noted. grams and activities that are subject to these regulations and identifies EDITORIAL NOTE: For additional informa- which of these are subject to the re- tion, see related documents published at 47 FR 57369, Dec. 23, 1982; 48 FR 17101, Apr. 21, quirements of section 204 of the Dem- 1983; and 48 FR 29096, June 24, 1983. onstration Cities and Metropolitan De- velopment Act. § 4.1 What is the purpose of these regulations? § 4.4 [Reserved] (a) The regulations in this part implement Executive Order 12372, ‘‘Inter- § 4.5 What is the Director’s obligation governmental Review of Federal Pro- with respect to Federal interagency coordination? grams,’’ issued July 14, 1982 and amended on April 8, 1983. These regulations The Director, to the extent prac- also implement applicable provisions of ticable, consults with and seeks advice section 401 of the Intergovernmental from all other substantially affected Cooperation Act of 1968 and section 204 Federal departments and agencies in

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an effort to assure full coordination be- (2) The assistance or development in- tween such agencies and FEMA regard- volves a program or activity not se- ing programs and activities covered lected for the State process. under these regulations. This notice may be made by publication in the FEDERAL REGISTER or other § 4.6 What procedures apply to the se- appropriate means, which FEMA in its lection of programs and activities under these regulations? discretion deems appropriate. (a) A State may select any program § 4.8 How does the Director provide an or activity published in the FEDERAL opportunity to comment on pro- REGISTER in accordance with § 4.3 of posed Federal financial assistance this part for intergovernmental review and direct Federal development? under these regulations. Each State, (a) Except in unusual circumstances, before selecting programs and activi- the Director gives state processes or di- ties, shall consult with local elected of- rectly affected State, areawide, re- ficials. gional and local officials and entities (b) Each State that adopts a process at least 60 days from the date estab- shall notify the Director of FEMA’s lished by the Director to comment on programs and activities selected for proposed direct Federal development or that process. Federal financial assistance. (c) A State may notify the Director (b) This section also applies to com- of changes in its selections at any ments in cases in which the review, co- time. For each change, the State shall ordination, and communication with submit to the Director an assurance FEMA have been delegated. that the State has consulted with local (c) Applicants for programs and ac- elected officials regarding the change. tivities subject to section 204 of the FEMA may establish deadlines by Demonstration Cities and Metropolitan which States are required to inform Act shall allow areawide agencies a 60- the Director of changes in their pro- day opportunity for review and com- gram selections. ment. (d) The Director uses a State’s process as soon as feasible, depending on in- § 4.9 How does the Director receive dividual programs and activities, after and respond to comments? the Director is notified of its selec- (a) The Director follows the proce- tions. dures in § 4.10 if: (1) A State office or official is des- § 4.7 How does the Director commu- ignated to act as a single point of con- nicate with State and local officials tact between a state process and all concerning FEMA’s programs and Federal agencies, and activities? (2) That office or official transmits a (a) For those programs and activities state process recommendation for a covered by a state process under § 4.6, program selected under § 4.6. the Director, to the extent permitted (b)(1) The single point of contact is by law: not obligated to transmit comments (1) Uses the state process to deter- from State, areawide, regional or local mine views of State and local elected officials and entities where there is no officials; and, state process recommendation. (2) Communicates with State and (2) If a state process recommendation local elected officials, through the is transmitted by a single point of con- state process, as early in a program tact, all comments from state, planning cycle as is reasonably feasible areawide, regional, and local officials to explain specific plans and actions. and entities that differ from it must (b) The Director provides notice to also be transmitted. directly affected State, areawide, re- (c) If a State has not established a gional, and local entities in a State of process, or is unable to submit a state proposed Federal financial assistance process recommendation, State, or direct Federal development if: areawide, regional and local officials (1) The State has not adopted a proc- and entities may submit comments to ess under the Order; or FEMA.

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(d) If a program or activity is not se- § 4.11 What are the Director’s obliga- lected for a state process, State, tions in interstate situations? areawide, regional and local officials (a) The Director is responsible for: and entities may submit comments to (1) Identifying proposed Federal fi- FEMA. In addition, if a state process nancial assistance and direct Federal recommendation for a nonselected pro- development that have an impact on gram or activity is transmitted to interstate areas; FEMA by the single point of contact, (2) Notifying appropriate officials the Director follows the procedures of and entities in states which have § 4.10 of this part. adopted a process and which select (e) The Director considers comments FEMA’s program or activity; which do not constitute a state process (3) Making efforts to identify and no- recommendation submitted under tify the affected State, areawide, re- these regulations and for which the Di- gional, and local officials and entities rector is not required to apply the pro- in those States that have not adopted a cedures of § 4.10 of this part, when such process under the Order or do not se- comments are provided by a single lect FEMA’s progam or activity; point of contact, by the applicant or di- (4) Responding pursuant to § 4.10 of rectly to FEMA by a commenting this part if the Director receives a rec- party. ommendation from a designated areawide agency transmitted by a sin- § 4.10 How does the Director make efforts to accommodate intergovern- gle point of contact, in cases in which mental concerns? the review, coordination, and communication with FEMA have been dele- (a) If a state process provides a state gated. process recommendation to FEMA (b) The Director uses the procedures through its single point of contact, the in § 4.10 if a state process provides a Director either: state process recommendation to (1) Accepts the recommendation; FEMA through a single point of con- (2) Reaches a mutually agreeable so- tact. lution with the state process; or (3) Provides the single point of con- § 4.12 How may a State simplify, contact with such written explanation of solidate, or substitute federally re- the decision, as the Director in his or quired State plans? her discretion deems appropriate. The (a) As used in this section: Director may also supplement the writ- (1) Simplify means that a State may ten explanation by providing the expla- develop its own format, choose its own nation to the single point of contact by submission date, and select the plan- telephone, other telecommunication, ning period for a State plan. or other means. (2) Consolidate means that a State (b) In any explanation under para- may meet statutory and regulatory re- graph (a)(3) of this section, the Direc- quirements by combining two or more tor informs the single point of contact plans into one document and that the that: State can select the format, submis- (1) FEMA will not implement its de- sion date, and planning period for the cision for at least ten days after the consolidated plan. single point of contact receives the ex- (3) Substitute means that a State may planation; or use a plan or other document that it (2) The Director has reviewed the de- has developed for its own purposes to cision and determined that, because of meet Federal requirements. unusual circumstances, the waiting pe- (b) If not inconsistent with law, a riod of at least ten days is not feasible. State may decide to try to simplify, (c) For purposes of computing the consolidate, or substitute federally re- waiting period under paragraph (b)(1) quired state plans without prior ap- of this section, a single point of con- proval by the Director. tact is presumed to have received writ- (c) The Director reviews each state ten notification 5 days after the date of plan that a State has simplified, con- mailing of such notification. solidated, or substituted and accepts

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the plan only if its contents meet Fed- 5.53 Approval of request. eral requirements. 5.54 Denial of request of records. 5.55 Appeal within FEMA of denial of re- § 4.13 May the Director waive any pro- quest. vision of these regulations? 5.56 Extension of time limits. 5.57 Predisclosure notification procedures In an emergency, the Director may for confidential commercial information. waive any provision of these regula- 5.58 Exhaustion of administrative remedies. tions. 5.59 Judicial relief available to the public. 5.60 Disciplinary action against employees PART 5—PRODUCTION OR for ‘‘arbitrary or capricious’’ denial. DISCLOSURE OF INFORMATION 5.61 Contempt for noncompliance. Subpart E—Exemptions Subpart A—General Provisions 5.70 General. Sec. 5.71 Categories of records exempt from dis- 5.1 Scope and purposes of part. closure under 5 U.S.C. 552. 5.2 Application. 5.72 Executive privilege exemption. 5.3 Definitions. 5.4 Availability of records. 5.5 Exemptions. Subpart F—Subpoenas or Other Legal De- 5.6 Congressional information. mands for Testimony or the Production 5.7 Records of other agencies. or Disclosure of Records or Other Infor- 5.8 Records involved in litigation or other mation judicial process. 5.9 Inconsistent issuances of FEMA and its 5.80 Scope and applicability. predecessor agencies superseded. 5.81 Statement of policy. 5.82 Definitions. Subpart B—Publication of or Availability of 5.83 Authority to accept service of sub- General Agency Information, Rules, poenas. Orders, Policies, and Similar Material 5.84 Production of documents in private litigation. 5.20 Publication of rules and general poli- 5.85 Authentication and attestation of cop- cies. ies. 5.21 Effect of failure to publish. 5.86 Production of documents in litigation 5.22 Coordination of publication. or other adjudicatory proceeding in 5.23 Incorporation by reference. which the United States is a party. 5.24 Availability of opinions, orders, poli- 5.87 Testimony of FEMA employees in pri- cies, interpretations, manuals, and in- vate litigation. structions. 5.88 Testimony in litigation in which the 5.25 Available materials. United States is a party. 5.26 Rules for public inspection and copy- 5.89 Waiver. ing. 5.27 Deletion of identifying details. AUTHORITY: 5 U.S.C. 552 as amended by sec- 5.28 Indexes. tions 1801–1804 of the Omnibus Anti-Drug 5.29 Effect of failure to make information Abuse Act of 1986 which contains the Free- materials available. dom of Information Reform Act of 1986 (Pub. L. 99–570); 5 U.S.C. 301 (Pub. L. 85–619); Reor- Subpart C—Fees ganization Plan No. 3 of 1978; E.O. 12127; and E.O. 12148. 5.40 Copies of FEMA records available at a fee. SOURCE: 44 FR 50287, Aug. 27, 1979, unless 5.41 FEMA publications. otherwise noted. 5.42 Fees to be charged—categories of requesters. Subpart A—General Provisions 5.43 Waiver or reduction of fees. 5.44 Prepayment of fees. § 5.1 Scope and purposes of part. 5.45 Form of payment. 5.46 Fee schedule. This part sets forth policies and pro- 5.47 Appeals regarding fees. cedures concerning the availability of and disclosure of records and informa- Subpart D—Described Records tion held by the Federal Emergency 5.50 General. Management Agency (FEMA) in ac- 5.51 Submission of requests for described cordance with 5 U.S.C. 552, popularly records. known as the ‘‘Freedom of Information 5.52 Review of requests. Act,’’ (FOIA).

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§ 5.2 Application. (b) Reasonably Described. Reasonably This part applies to all records and described, when applied to a request information materials generated, de- record, means identifying it to the ex- veloped, or held by FEMA at Head- tent that it will permit the location of quarters, in Regions, or in the field, or the particular document with a reason- any component thereof. able effort. (c) Agency. Agency, as defined in sec- § 5.3 Definitions. tion 552(e) of title 5 U.S.C., includes For purposes of this part, the fol- any executive department, military de- lowing terms have the meanings as- partment, government corporation, or cribed to them in this section: other establishment in the executive (a) Records. Records means all books, branch of the Government (including papers, maps, photographs, or other the Executive Office of the President), documentary materials, regardless of or any independent regulatory agency. physical form or characteristics made (d) Headquarters FOIA Officer. The or received by FEMA in pursuance of FOIA/Privacy Act Specialist or his/her Federal Law or in connection with the designee. transaction of public business and pre- (e) Regional FOIA Officer. The Re- served, or appropriate for preservation, gional Director, or his/her designee. as evidence of the organization, func- [44 FR 50287, Aug. 27, 1979, as amended at 45 tions, policies, decisions, procedures, FR 1421, Jan. 7, 1980; 51 FR 34604, Sept. 30, operations, or other activities of FEMA 1986] or because of the information value of data contained therein. The term does § 5.4 Availability of records. not include: (a) FEMA records are available to the (1) Material made or acquired and greatest extent possible in keeping preserved solely for reference or exhi- with the spirit and intent of FOIA and bition purposes, extra copies of docu- will be furnished promptly to any ments preserved only for convenience member of the public upon request ad- of reference, and stocks of publications dressed to the office designated in and of processed documents; or § 5.26. The person making the request (2) Objects or articles, such as struc- need not have a particular interest in tures, furniture, paintings, sculpture, the subject matter, nor must he pro- models, vehicles or equipment; or vide justification for the request. (3) Formulae, designs, drawings, re- (b) The requirement of 5 U.S.C. 552 search data, computer programs, tech- that records be available to the public nical data packages, and the like, which are not considered records within refers only to records in being at the the Congressional intent of reference time the request for them is made. because of development costs, utiliza- FOIA imposes no obligation to compile tion, or value. These items are consid- a record in response to a request. ered exploitable resources to be uti- § 5.5 Exemptions. lized in the best interest of all the public and are not preserved for informa- Requests for FEMA records may be tional value nor as evidence of agency denied if disclosure is exempted under functions. Requests for copies of such the provisions of 5 U.S.C. 552, as out- material shall be evaluated in accord- lined in subpart E. Usually, except ance with policies expressly directed to when a record is classified, or when dis- the appropriate dissemination or use of closure would violate any other Fed- these resources. Requests to inspect eral statute, the authority to withhold this material to determine its content a record from disclosure is permissive for informational purposes shall nor- rather than mandatory. The authority mally be granted, unless inspection is for nondisclosure will not be invoked inconsistent with the obligation to pro- unless there is compelling reason to do tect the property value of the material, so. as, for example, may be true for patent information and certain formulae, or is § 5.6 Congressional information. inconsistent with another significant Nothing in this part authorizes with- and legitimate governmental purpose. holding information from the Congress

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except when executive privilege is in- ing the nature and requirements of all voked by the President. formal and informal procedures available. § 5.7 Records of other agencies. (c) Rules of procedure, descriptions of If a request is submitted to FEMA to forms available or the places at which make available current records which forms may be obtained, and instruc- are the primary responsibility of an- tions as to the scope and contents of other agency, FEMA will refer the re- all papers, reports, or examinations. quest to the agency concerned for ap- (d) Substantive rules of general appropriate action. FEMA will advise the plicability adopted as authorized by requester that the request has been for- law, and statements of general policy warded to the responsible agency. or interpretations of general applicability formulated and adopted by § 5.8 Records involved in litigation or FEMA. other judicial process. (e) Each amendment, revision, or re- Where there is reason to believe that peal of the materials described in this any records requested may be involved section. Much of this information will in litigation or other judicial process also be codified in this subchapter A. in which the United States is a party, including discovery procedures pursu- § 5.21 Effect of failure to publish. ant to the Federal Rules of Civil Proce- 5 U.S.C. 552(a)(1) provides that, ex- dure or Federal Rules of Criminal Pro- cept to the extent that a person has ac- cedure, the request shall be referred to tual and timely notice of the terms the General Counsel. thereof, a person may not in any manner be required to resort to, or to be § 5.9 Inconsistent issuances of FEMA adversely affected by, a matter re- and its predecessor agencies superseded. quired to be published in the FEDERAL REGISTER and not so published. Policies and procedures of any of FEMA’s predecessor agencies incon- § 5.22 Coordination of publication. sistent with this regulation are super- The General Counsel, FEMA, is re- seded to the extent of that inconsist- sponsible for coordination of FEMA ency. materials required to be published in the FEDERAL REGISTER. Subpart B—Publication of or Avail- ability of General Agency In- § 5.23 Incorporation by reference. formation, Rules, Orders, Poli- When deemed appropriate, matter cies, and Similar Material covered by this subpart, which is reasonably available to the class of per- § 5.20 Publication of rules and general sons affected thereby may be incor- policies. porated by reference in the FEDERAL In accordance with 5 U.S.C. 552(a)(1), REGISTER in accordance with standards there are separately stated and cur- prescribed from time to time by the Di- rently published, or from time to time rector of the Federal Register (see 1 there will be published, in the FEDERAL CFR part 51). REGISTER for the guidance of the public, the following general information § 5.24 Availability of opinions, orders, concerning FEMA: policies, interpretations, manuals, (a) Description of the organization of and instructions. the Headquarters Office and regional FEMA will make available for public and other offices and the established inspection and copying the material places at which, the employees from described in 5 U.S.C. 552(a)(2) as enu- whom, and the methods whereby the merated in § 5.25 and an index of those public may obtain information, make materials as described in § 5.28, at con- submittals or requests, or obtain deci- venient places and times. sions. (b) Statement of the general course § 5.25 Available materials. and method by which FEMA functions FEMA materials which are available are channeled and determined, includ- under this subpart are as follows:

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(a) Final opinions and orders made in returned in the same condition as pro- the adjudication of cases. vided. (b) Those statements of policy and [44 FR 50287, Aug. 27, 1979, as amended at 47 interpretations which have been adopt- FR 13149, Mar. 29, 1982; 48 FR 44542, Sept. 29, ed by FEMA and are not published in 1983; 50 FR 40006, Oct. 1, 1985] the FEDERAL REGISTER. (c) Administrative staff manuals and § 5.27 Deletion of identifying details. instructions to staff that affect a mem- To the extent required to prevent a ber of the public, unless such materials clearly unwarranted invasion of per- are promptly published and copies of- sonal privacy, FEMA may delete iden- fered for sale. tifying details when making available or publishing an opinion, statement of § 5.26 Rules for public inspection and policy, interpretation, or staff manual copying. or instruction. However, the justifica- (a) Location. Materials are available tion for each deletion will be explained for public inspection and copying at fully in writing, and will require the the following locations: concurrence of the General Counsel. A (1) Headquarters: copy of the justification will be at- Federal Center Plaza, 500 C Street, SW, tached to the material containing the Washington, DC 20472 deletion and a copy will also be furnished to the Headquarters FOIA Offi- (2) Regional Offices cer or appropriate Regional Director. Region I, Room 442, J. W. McCormack Post Office & Court House, Boston, MA 02109; § 5.28 Indexes. Region II, 26 Federal Plaza, New York, NY FEMA will maintain and make avail- 10278; able for public inspection and copying Region III, Liberty Square Bldg. (Second Floor), 105 South Seventh Street, current indexes arranged by subject Philadephia, PA 19106; matter providing identifying informa- Region IV, 1371 Peachtree Street, N.E., 7th tion for the public regarding any mat- Floor, Atlanta, GA 30309; ter issued, adopted, or promulgated Region V, 300 South Wacker Drive, 24th after July 4, 1967, and described in Floor, Chicago, IL 60606; § 5.25. FEMA will publish quarterly and Region VI, Federal Regional Center, Denton, make available copies of each index or TX 76201; supplements thereto. The indexes will Region VII, 911 Walnut Street, Room 300, Kansas City, MO 64106; be maintained for public inspection at Region VIII, Denver Federal Center, Bldg. the location described in § 5.26. 710, Denver, CO 80225–0267; Region XI, Building 105, Presidio of San § 5.29 Effect of failure to make infor- Francisco, CA 94129; mation materials available. Region X, Federal Regional Center, 130–228th Materials requested to be made avail- Street, SW., Bothell, WA 98021–9796. able pursuant to § 5.24 that affect a (b) Time. Materials will be made member of the public may be relied available for public inspection and upon, used, or cited as precedent by copying during the normal hours of FEMA against any private party only business. if (a) they have been indexed and either (c) FEMA will furnish reasonable made available or published as required copying services at fees specified in by 5 U.S.C. 552(a)(2), or (b) the private subpart C. Such reproduction services party has actual and timely notice of as are required will be arranged by the their terms. Office of Administrative Support in the headquarters or by regional offices as Subpart C—Fees appropriate. (d) Handling of materials. The unlaw- § 5.40 Copies of FEMA records avail- ful removal or mutilation of materials able at a fee. is forbidden by law and is punishable One copy of FEMA records not avail- by fine or imprisonment or both. able free of charge will be provided at FEMA personnel making materials a fee as provided in § 5.46. A reasonable available will ensure that all materials number of additional copies will be provided for inspection and copying are provided for the applicable fee where

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reproduction services are not readily it interests of the requester or person obtainable from private commercial on whose behalf the request is made. In sources. determining whether a requester falls within the commercial use category, § 5.41 FEMA publications. FEMA will look to the use to which a Anyone may obtain FEMA publica- requester will put the documents re- tions without charge from the FEMA quested. Where a requester does not ex- Headquarters, Regional Offices and plain his/her use, or where his/her ex- from FEMA, P.O. Box 8181, Wash- planation is insufficient to permit a de- ington, DC 20024 in accordance with termination of the nature of the use, standard operating procedures, includ- FEMA shall require the requester to ing limitation on numbers of specific provide information regarding the use individual publications. FEMA Films to be made of the information and if may be obtained on loan or certain of the request does not include an agree- these films may be purchased, in which ment to pay all appropriate fees, case fees will be charged as set out in FEMA will process such request only a FEMA catalogue. Non-exempt FEMA up to the $30.00 threshold which is the research reports are available from the estimated cost to FEMA to collect fees National Technical Information Serv- which we are prohibited from charging ice, United States Department of Com- by law. Requesters must reasonably de- merce, which establishes its own fee schedule. Charges, if any, for these scribe the records sought. items and similar user charges are es- (2) When records are being requested tablished in accordance with other pro- by representatives of the news media, visions of law as, for example, 31 U.S.C. the fee policy of FEMA is to levy repro- 9701 and are not deemed search and du- duction charges only, excluding plication charges hereunder. charges for the first 100 pages. Rep- resentatives of the news media refers [44 FR 50287, Aug. 27, 1979, as amended at 48 to any person actively gathering news FR 44542, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985] for an entity that is organized and operated to publish or broadcast news to § 5.42 Fees to be charged—categories the public. The term news means infor- of requesters. mation that is about current events or (a) There are four categories of FOIA that would be of current interest to the requesters: Commercial use requesters; public. Examples of news media enti- representatives of news media; edu- ties include television or radio stations cational and noncommercial scientific broadcasting to the public at large, and institutions; and all other requesters. publishers of periodicals (but only in The time limits for processing requests those instances where they can qualify shall only begin upon receipt of a prop- as disseminators of ‘‘news’’) who make er request which reasonably identifies their products available for purchase or records being sought. The Freedom of subscription by the general public. Information Reform Act of 1986 pre- These examples are not intended to be scribes specific levels of fees for each of all-inclusive. As traditional methods of these categories: news delivery evolve (i.e., electronic (1) When records are being requested dissemination of newspapers through for commercial use, the fee policy of telecommunications services), such al- FEMA is to levy full allowable direct ternative media would be included in cost of searching for, reviewing for re- this category. In the case of ‘‘free- lease, and duplicating the records lance’’ journalists, they may be re- sought. Commercial users are not enti- garded as working for a news organiza- tled to two hours of free search time tion if they can demonstrate a solid nor 100 free pages of reproduction of basis for expecting publication through documents. The full allowable direct that organization, even though not ac- cost of searching for and reviewing tually employed by it. For example, a records will be charged even if there is publication contract would be the ultimately no disclosure of records. clearest proof, but FEMA may also Commercial use is defined as a use that look to the past publication record, furthers the commercial, trade or prof- press accreditation, guild membership,

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business registration, Federal Commu- pages of reproduction and the first two nications Commission licensing, or hours of search time shall be furnished similar credentials of a requester in without charge. The first two hours of making this determination. To be eli- computer search time is based on the gible for inclusion in this category, re- hourly cost of operating the central questers must meet the criteria speci- processing unit and the operator’s fied in this section and his or her re- hourly salary plus 16 percent. When the quest must not be made for a commer- cost of the computer search, including cial use basis as that term is defined the operator time and the cost of oper- under paragraph (a)(1) of this section. ating the computer to process the re- A request for records supporting the quest, equals the equivalent dollar news dissemination function of the re- amount of two hours of the salary of quester shall not be considered to be a the person performing the search, i.e., request that is for a commercial use. the operator, FEMA shall begin assess- Requesters must reasonably describe ing charges for computer search. Re- the records sought. quests from individuals requesting (3) When records are being requested records about themselves filed in by an educational or noncommercial FEMA’s systems of records shall con- scientific institution whose purpose is tinue to be treated under the fee provi- scholarly or scientific research, the fee sions of the Privacy Act of 1974 which policy of FEMA is to levy reproduction permit fees only for reproduction. Re- charges only, excluding charges for the questers must reasonably describe the first 100 pages. Educational institution records sought. refers to a preschool, a public or pri- (b) Except for requests that are for a vate elementary or secondary school, commercial use, FEMA may not charge an institution of graduate higher education, an institution of undergraduate for the first two hours of search time higher education, an institution of pro- or for the first 100 pages of reproduc- fessional education and an institution tion. However, a requester may not file of vocational education, which oper- multiple requests at the same time, ates a program or programs of schol- each seeking portions of a document or arly research. Noncommercial sci- documents, solely in order to avoid entific institution refers to an institu- payment of fees. When FEMA believes tion that is not operated on a commer- that a requester or, on rare occasions, cial basis as that term is defined under a group of requesters acting in concert, paragraph (a)(1) of this section and is attempting to break a request down which is operated solely for the pur- into a series of requests for the purpose pose of conducting scientific research, of evading the assessment of fees, the results of which are not intended to FEMA may aggregate any such re- promote any particular product or in- quests and charge accordingly. For ex- dustry. To be eligible for inclusion in ample, it would be reasonable to pre- this category, requesters must show sume that multiple requests of this that the request is being made under type made within a 30-day period had the auspices of a qualifying institution been made to avoid fees. For requests and that the records are not sought for made over a longer period, however, a commercial use, but are sought in FEMA must have a solid basis for de- furtherance of scholarly (if the request termining that aggregation is war- is from an educational institution) or ranted in such cases. Before aggre- scientific (if the request is from a non- gating requests from more than one re- commercial scientific institution) requester, FEMA must have a concrete search. Requesters must reasonably de- basis on which to conclude that the re- scribe the records sought. questers are acting in concert and are (4) For any other request which does acting specifically to avoid payment of not meet the criteria contained in fees. In no case may FEMA aggregate paragraphs (a)(1) through (3) of this multiple requests on unrelated subjects section, the fee policy of FEMA is to from one requester. levy full reasonable direct cost of (c) In accordance with the prohibi- searching for and duplicating the tion of section (4)(A)(iv) of the Free- records sought, except that the first 100 dom of Information Act, as amended,

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FEMA shall not charge fees to any re- § 5.44 Prepayment of fees. quester, including commercial use re- (a) When FEMA estimates or deter- questers, if the cost of collecting a fee mines that allowable charges that a re- would be equal to or greater than the quester may be required to pay are fee itself. likely to exceed $250.00, FEMA may re- (1) For commercial use requesters, if quire a requester to make an advance the direct cost of searching for, review- payment of the entire fee before con- ing for release, and duplicating the tinuing to process the request. records sought would not exceed $30.00, FEMA shall not charge the requester (b) When a requester has previously any costs. failed to pay a fee charged in a timely (2) For requests from representatives fashion (i.e., within 30 days of the date of news media or educational and non- of the billing), FEMA may require the commercial scientific institutions, ex- requester to pay the full amount owed cluding the first 100 pages which are plus any applicable interest as provided provided at no charge, if the duplica- in § 5.46(d), and to make an advance tion cost would not exceed $30.00, payment of the full amount of the esti- FEMA shall not charge the requester mated fee before the agency begins to any costs. process a new request or a pending re- (3) For all other requests not falling quest from that requester. within the category of commercial use (c) When FEMA acts under para- requests, representatives of news graphs (a) or (b) of this section, the ad- media, or educational and noncommer- ministrative time limits prescribed in cial scientific institutions, if the direct subsection (a)(6) of the FOIA (i.e., 10 cost of searching for and duplicating working days from the receipt of ini- the records sought, excluding the first tial requests and 20 working days from two hours of search time and first 100 receipt of appeals from initial denial, pages which are free of charge, would plus permissible extensions of these not exceed $30.00, FEMA shall not time limits) will begin only after charge the requester any costs. FEMA has received fee payments described under paragraphs (a) or (b) of [52 FR 13677, Apr. 24, 1987] this section. § 5.43 Waiver or reduction of fees. [52 FR 13678, Apr. 24, 1987] (a) FEMA may waive all fees or levy § 5.45 Form of payment. a reduced fee when disclosure of the information requested is deemed to be in Payment shall be by check or money the public interest because it is likely order payable to the Federal Emer- to contribute significantly to public gency Management Agency and shall understanding of the operations or ac- be addressed to the official designated tivities of the Federal Government and by FEMA in correspondence with the is not primarily in the commercial in- requestor or to the Headquarters FOIA terest of the requester. Officer or Regional FOIA Officer, as ap- (b) A fee waiver request shall indi- propriate. cate how the information will be used, [44 FR 50287, Aug. 27, 1979, as amended at 48 to whom it will be provided, whether FR 44542, Sept. 29, 1983] the requester intends to use the information for resale at a fee above actual § 5.46 Fee schedule. cost, any personal or commercial bene- (a) Manual searches for records. FEMA fits that the requester reasonably ex- will charge at the salary rate(s), (i.e., pects to receive by the disclosure, pro- basic hourly pay rate plus 16 percent) vide justification to support how re- of the employee(s) conducting the lease would benefit the general public, search. FEMA may assess charges for the requester’s and/or intended user’s time spent searching, even if the agen- identity and qualifications, expertise cy fails to locate the records or if in the subject area and ability and in- records located are determined to be tention to disseminate the information exempt from disclosure. FEMA may as- to the public. sess charges for time spent searching, [52 FR 13678, Apr. 24, 1987] even if FEMA fails to locate the

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records or if records located are deter- the allowable duplication charges are mined to be exempt from disclosure. likely to exceed $25, it shall notify the (b) Computer searches for records. requester of the estimated amount of FEMA will charge the actual direct fees, unless the requester has indicated cost of providing the service. This will in advance his/her willingness to pay include the cost of operating the cen- fees as high as those anticipated. Such tral processing unit (CPU) for that por- a notice shall offer a requester the option of operating time that is directly portunity to confer with agency per- attributable to searching for records sonnel with the objective of reformu- responsive to a FOIA request and oper- lating the request to meet his/her ator/programmer salary apportionable needs at a lower cost. to the search. FEMA may assess (d) Interest may be charged to those charges for time spent searching, even if FEMA fails to locate the records or requesters who fail to pay fees charged. if records located are determined to be FEMA may begin assessing interest exempt from disclosure. charges on the amount billed starting (c) Duplication costs. (1) For copies of on the 31st day following the day on documents reproduced on a standard which the billing was sent. Interest office copying machine in sizes up to will be at the rate prescribed in section 81⁄2 x 14 inches, the charge will be $.15 3717 of Title 31 U.S.C. and will accrue per page. from the date of the billing. (2) The fee for reproducing copies of (e) FEMA shall use the most efficient records over 81⁄2 x 14 inches or whose and least costly methods to comply physical characteristics do not permit with requests for documents made reproduction by routine electrostatic under the FOIA. FEMA may choose to copying shall be the direct cost of re- contract with private sector services to producing the records through govern- locate, reproduce and disseminate ment or commercial sources. If FEMA records in response to FOIA requests estimates that the allowable duplica- when that is the most efficient and tion charges are likely to exceed $25, it least costly method. When documents shall notify the requester of the esti- responsive to a request are maintained mated amount of fees, unless the re- for distribution by agencies operating quester has indicated in advance his/ statutory-based fee schedule programs, her willingness to pay fees as high as such as but not limited to the Govern- those anticipated. Such a notice shall ment Printing Office or the National offer a requester the opportunity to confer with agency personnel with the Technical Information Service, FEMA objective of reformulating the request will inform requesters of the steps nec- to meet his/her needs at a lower cost. essary to obtain records from those (3) For copies prepared by computer, sources. such as tapes or printouts, FEMA shall [52 FR 13678, Apr.24, 1987, as amended at 52 charge the actual cost, including oper- FR 33410, Sept. 3, 1987] ator time, of production of the tape or printout. If FEMA estimates that the § 5.47 Appeals regarding fees. allowable duplication charges are like- A requestor whose application for a ly to exceed $25, it shall notify the re- fee waiver or a fee reduction is denied quester of the estimated amount of fees, unless the requester has indicated may appeal that decision to the Deputy in advance his/her willingness to pay Director in the manner prescribed in fees as high as those anticipated. Such subpart D. a notice shall offer a requester the opportunity to confer with agency per- Subpart D—Described Records sonnel with the objective of reformulating the request to meet his/her § 5.50 General. needs at a lower cost. (a) Except for records made available (4) For other methods of reproduction pursuant to subpart B, FEMA shall or duplication, FEMA shall charge the promptly make records available to a actual direct costs of producing the requestor pursuant to a request which document(s). If FEMA estimates that

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reasonably described such records un- after receipt of any such request in the less FEMA invokes an exemption pur- office of the appropriate official identi- suant to subpart E. Although the bur- fied in § 5.51 whether to comply with den of reasonable description of the the request. If the request is approved, records rests with the requestor, FEMA the office having custody of the record will assist in identification to the ex- shall notify the requestor and the tent practicable. Where requested Headquarters FOIA Officer whether re- records may be involved in litigation quest originated in Headquarters, Re- or other judicial proceedings in which gion or field. the United States is a party, the proce- [44 FR 50287, Aug. 27, 1979, as amended at 50 dures set forth under § 5.8 shall be fol- FR 40006, Oct. 1, 1985; 53 FR 2740, Feb. 1, 1988] lowed. (b) Upon receipt of a request which § 5.53 Approval of request. does not reasonably describe the rec- When a request is approved, records ords requested, FEMA may contact the will be made available promptly in ac- requestor to seek a more specific de- cordance with the terms of the regula- scription. The 10-day time limit set tion. Copies may be furnished or the forth in § 5.52 will not start until a re- records may be inspected and copied as quest reasonably describing the records provided in § 5.26. is received in the office of the appropriate official identified in § 5.51. § 5.54 Denial of request of records. (a) Each of the following officials § 5.51 Submission of requests for described records. within FEMA, any official designated to act for the official, or any official (a) For records located in the FEMA redelegated authority by such officials Headquarters, requests shall be sub- shall have the authority to make ini- mitted in writing, to the Headquarters tial denials of requests for disclosure of FOIA Officer, Federal Emergency Man- records in his or her custody, and shall, agement Agency, Washington, DC in accordance with 5 U.S.C. 552(a)(6)(C) 20472. For records located in the FEMA be the responsible official for denial of Regional Offices, requests shall be sub- records under this part. mitted to the appropriate Regional (1) Deputy Director FOIA Officer, at the address listed in (2) [Reserved] § 5.26. Requests should bear the legend (3) Federal Insurance Administrator ‘‘Freedom of Information Request’’ (4) Associate Directors prominently marked on both the face (5) United States Fire Administrator of the request letter and the envelope. (6) Chief of Staff The 10-day time limit for agency deter- (7) Office Directors minations set forth in § 5.52 shall not (8) General Counsel start until a request is received in the (9) Inspector General office of the appropriate official identi- (10) Comptroller fied in this paragraph. (11) Regional Directors (b) The Headquarters FOIA Officer (b) If a request is denied, the appro- shall respond to questions concerning priate official listed in paragraph (a) of the proper office to which Freedom of this section shall except as provided in Information requests should be ad- § 5.56 advise the requestor within 10 dressed. workdays of receipt of the request by the official specified in § 5.51 and fur- § 5.52 Review of requests. nish written reasons for the denial. The (a) Upon receipt of a request for in- denial will (1) describe the record or formation, the Headquarters FOIA Offi- records requested, (2) state the reasons cer, or the Regional FOIA Officer for a for nondisclosure pursuant to subpart regional office, will forward the re- E, (3) state the name and title or posi- quest to the FEMA office which has tion of the official responsible for the custody of the record. denial of such request, and (4) state the (b) Upon any request for records requestor’s appeal rights. made pursuant to § 5.20, § 5.24, or § 5.51, (c) In the event FEMA cannot locate the office having custody of the records requested records the appropriate offi- shall determine within 10 workdays, cial specified in paragraph (a) of this

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section will inform the requestor (1) uty Director made the initial denial, that the agency has determined at the the Director will be the deciding offi- present time to deny the request be- cial on any appeal from that denial. In cause the records have not yet been the absence of the Deputy Director, or found or examined, but (2) that the in case of a vacancy in that office, the agency will review the request within a Director may designate another FEMA specified number of days, when the official to perform the Deputy’s func- search or examination is expected to be tions. complete. The denial letter will state (f) If an appeal is filed in response to the name and title or position of the a tentative denial pending locating official responsible for the denial of and/or examination of records, as de- such request. In such event, the re- scribed in § 5.53(c), FEMA will continue questor may file an agency appeal im- to search for and/or examine the re- mediately, pursuant to § 5.55. quested records and will issue a response immediately upon completion [44 FR 50287, Aug. 27, 1979, as amended at 48 of the search and/or examination. Such FR 44542, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985; 51 FR 34604, Sept. 30, 1986] action in no way suspends the time for FEMA’s response to the requestor’s ap- § 5.55 Appeal within FEMA of denial of peal which FEMA will continue to request. process regardless of the response (a) A requestor denied access, in under this paragraph. whole or in part, to FEMA records may (g) If a requestor files suit pending an appeal that decision within FEMA. All agency appeal, FEMA nonetheless will appeals should be addressed to the continue to process the appeal, and will Headquarters FOIA Officer, Federal furnish a response within the twenty Emergency Management Agency, day time limit set out in paragraph (c) Washington, DC, 20472 regardless of of this section. whether the denial being appealed was (h) If, on appeal, the denial of the re- made at Headquarters, in a field office, quest for records is in whole or in part or by a Regional Director. upheld, the Deputy Director will (b) An appeal must be received in the promptly furnish the requestor a copy Headquarters FOIA Office no later than of the ruling in writing within the thirty calendar days after receipt by twenty day time limit set out in para- the requestor of the initial denial. graph (c) of this section except as pro- (c) An appeal must be in writing and vided in § 5.55. The notification letter should contain a brief statement of the shall contain: reasons why the records should be re- (1) A brief description of the record leased and enclose copies of the initial or records requested; request and denial. The appeal letter (2) A statement of the legal basis for should bear the legend, ‘‘FREEDOM OF nondisclosure; INFORMATION APPEAL,’’ conspicu- (3) A statement of the name and title ously marked on both the face of the or position of the official or officials appeal letter and on the envelope. responsible for the denial of the initial FEMA has twenty workdays after the request as described in § 5.54 and the de- receipt of an appeal to make a deter- nial of the appeal as described in para- mination with respect to such appeal. graph (f) of this section, and The twenty day time limit shall not (4) A statement of the requestor’s begin to run until the appeal is re- rights of judicial review. ceived by the Headquarters FOIA Offi- [44 FR 50287, Aug. 27, 1979, as amended at 45 cer. Misdirected appeals should be FR 1422, Jan. 7, 1980; 50 FR 40006, Oct. 1, 1985] promptly forwarded to that office. (d) The Headquarters FOIA Officer § 5.56 Extension of time limits. will submit the appeal to the Deputy In unusual circumstances as specified Director for final administrative deter- in this section, the time limits pre- mination. scribed in §§ 5.52 and 5.55 may be ex- (e) The Deputy Director shall be the tended by an official named in § 5.54(a) deciding official on all appeals except who will provide written notice to the in those cases in which the initial de- requestor setting forth the reasons for nial was made by him/her. If the Dep- such extension and the date on which a

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determination is expected. Such notice limited to, corporations, State govern- will specify no date that would result ments, and foreign governments. in an extension of more than ten work (b) Notice to business submitters. FEMA days. In unusual circumstances, the shall provide a submitter with prompt Headquarters FOIA Officer may au- notice of receipt of a Freedom of Infor- thorize more than one extension, di- mation Act request encompassing its vided between the initial request stage business information whenever re- and the appeals stage, but in no event quired in accordance with paragraph will the combined periods of extension (c) of this section, and except as pro- exceed ten work days. As used in this vided in paragraph (g) of this section. section, ‘‘unusual circumstances’’ in- The written notice shall either describe clude only those circumstances where the exact nature of the business infor- extension of time is reasonably nec- mation requested or provide copies of essary to the proper processing of the the records or portions of records con- particular request. Examples include: taining the business information. (a) The need to search for and collect (c) When notice is required. (1) For the requested records from field facili- confidential commercial information ties or other establishments that are submitted prior to January 1, 1988, separate from the office processing the FEMA shall provide a submitter with request; or notice of receipt of a FOIA request (b) The need to search for, collect, whenever: and appropriately examine a volumi- (i) The records are less than 10 years nous amount of separate and distinct old and the information has been des- records which are demanded in a single ignated by the submitter as confiden- request; or tial commercial information; (c) The need for consultation, which (ii) FEMA has reason to believe that shall be conducted with all practicable disclosure of the information could speed, with another agency or with a reasonably result in commercial or fi- non-Federal source having a substan- nancial injury to the submitter; or tial interest in the determination of (iii) The information is subject to the request or among two or more com- prior express commitment of confiden- ponents of FEMA having substantial tiality given by FEMA to the sub- subject matter interest therein. mitter. § 5.57 Predisclosure notification proce- (2) For confidential commercial in- dures for confidential commercial formation submitted to FEMA on or information. after January 1, 1988, FEMA shall pro- (a) In general. Business information vide a submitter with notice of receipt provided to FEMA by a business sub- of a FOIA request whenever: mitter shall not be disclosed pursuant (i) The submitter has in good faith to a Freedom of Information Act designated the information as commer- (FOIA) request except in accordance cially or financially sensitive informa- with this section. For purposes of this tion; or section, the following definitions (ii) FEMA has reason to believe that apply: disclosure of the information could (1) Confidential commercial information reasonably result in commercial or fi- means records provided to the govern- nancial injury to the submitter. ment by a submitter that arguably (3) Notice of a request for confiden- contain material exempt from release tial commercial information falling under Exemption 4 of the Freedom of within paragraph (c)(2)(i) of this sec- Information Act, 5 U.S.C 552(b)(4), be- tion shall be required for a period of cause disclosure could reasonably be not more than 10 years after the date expected to cause substantial competi- of submission unless the submitter re- tive harm. quests, and provides acceptable jus- (2) Submitter means any person or en- tification for, a specific notice period tity who provides confidential commer- of greater duration. cial information to the government. (4) Whenever possible, the submit- The term submitter includes, but is not ter’s claim of confidentiality shall be

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supported by a statement or certifi- quested information has been mailed to cation by an officer or authorized rep- the submitter. FEMA shall inform the resentative of the company that the in- submitter that disclosure will be made formation in question is in fact con- by the specified disclosure date, unless fidential commercial or financial infor- the submitter seeks a court injunction mation and has not been disclosed to to prevent its release by the date. the public. When notice is given to a submitter (d) Opportunity to object to disclosure. under this section, FEMA shall notify (1) Through the notice described in the requester that such notice has been paragraph (b) of this section, FEMA given to the submitter and the pro- shall afford a submitter 7 working days posed date for disclosure. within which to provide FEMA with a (f) Notice of lawsuit. (1) Whenever a re- detailed statement of any objection to quester brings legal action seeking to disclosure. Such statement shall speci- compel disclosure of business informa- fy all grounds for withholding any of tion covered by paragraph (c) of this the information under any exemptions section, FEMA shall promptly notify of the Freedom of Information Act and, the submitter. in the case of Exemption 4, shall dem- (2) Whenever a submitter brings legal onstrate why the information is con- action seeking to prevent disclosure of tended to be a trade secret or commer- business information covered by para- cial or financial information which is graph (c) of this section, FEMA shall considered privileged or confidential. promptly notify the requester. Information provided by a submitter (g) Exception to notice requirement. pursuant to this paragraph may itself The notice requirements of this section be subject to disclosure under the shall not apply if: FOIA. (1) FEMA determines that the infor- (2) When notice is given to a sub- mation shall not be disclosed; mitter under this section, FEMA shall (2) The information has been pub- notify the requester that such notice lished or otherwise officially made has been given to the submitter. The available to the public; requester will be further advised that a (3) Disclosure of the information is delay in responding to the request, i.e., required by law (other than 5 U.S.C. 10 working days after receipt of the re- 552); or quest by FEMA or 20 working days (4) The information was required in after receipt of the request by FEMA if the course of a lawful investigation of the time limits are extended under un- a possible violation of criminal law. usual circumstances permitted by the FOIA, may be considered a denial of ac- [53 FR 2740, Feb. 1, 1988] cess to records and the requester may § 5.58 Exhaustion of administrative proceed with an adminstrative appeal remedies. or seek judicial review, if appropriate. (e) Notice of intent to disclose. FEMA Any person making a request to shall consider carefully a submitter’s FEMA for records under this part shall objections and specific grounds for non- be deemed to have exhausted his ad- disclosure prior to determining wheth- ministrative remedies with respect to er to disclose business information. the request if the agency fails to com- Whenever FEMA decides to disclose ply with the applicable time limit pro- business information over the objec- visions set forth in §§ 5.52 and 5.55. tion of a submitter, FEMA shall for- [44 FR 50287, Aug. 27, 1979. Redesignated at 53 ward to the submitter a written notice FR 2740, Feb. 1, 1988] which shall include: (1) A statement of the reasons for § 5.59 Judicial relief available to the which the submitter’s disclosure objec- public. tions were not sustained; Upon denial of a requestor’s appeal (2) A description of the business in- by the Deputy Director the requester formation to be disclosed; and may file a complaint in a district court (3) A specified disclosure date, which of the United States in the district in is 7 working days after the notice of which the complainant resides, or has the final decision to release the re- his principal place of business, or in

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which the agency records are situated, Subpart E—Exemptions or in the District of Columbia, pursuant to 5 U.S.C. 552(a)(4)(B). § 5.70 General. [44 FR 50287, Aug. 27, 1979. Redesignated at 53 The exemptions enumerated in 5 FR 2740, Feb. 1, 1988] U.S.C. 552(b), under which the provisions for availability of records and in- § 5.60 Disciplinary action against em- formational materials will not apply, ployees for ‘‘arbitrary or capri- are general in nature. FEMA will de- cious’’ denial. cide each case on its merits in accord- Pursuant to 5 U.S.C. 552(a)(4)(F), ance with the FEMA policy expressed whenever the district court, described in subpart A. in § 5.59 orders the production of any § 5.71 Categories of records exempt FEMA records improperly withheld from disclosure under 5 U.S.C. 552. from the complainant and assesses against the United States reasonable 5 U.S.C. 552(b) provides that the re- attorney fees and other litigation quirements of the statute do not apply to matters that are: costs, and the court additionally issues (a) Specifically authorized under cri- a written finding that the cir- teria established by an Executive Order cumstances surrounding the with- to be kept secret in the interest of na- holding raise questions whether FEMA tional defense or foreign policy and personnel acted arbitrarily or capri- are, in fact, properly classified pursu- ciously with respect to the with- ant to such Executive Order. holding, the Special Counsel in the (b) Related solely to the internal per- Merit Systems Protection Board is re- sonnel rules and practices of an agen- quired to initiate a proceeding to de- cy. termine whether disciplinary action is (c) Specifically exempted from dis- warranted against the officer or em- closure by statute other than section ployee who primarily was responsible 552(b) of title 5, provided that such for the withholding. The Special Coun- statute (1) requires that the matters be sel after investigation and consider- withheld from the public in such a ation of the evidence submitted, sub- manner as to leave no discretion on the mits findings and recommendations to issue or (2) establishes particular cri- the Director of FEMA and sends copies teria for withholding or refers to par- of the findings and recommendations ticular types of matter to be withheld. to the officer or employee or his or her (d) Trade secrets and commercial or representative. The law requires the financial information obtained from a Director to take any corrective action person and privileged or confidential. which the Special Counsel rec- (e) Inter-agency or intra-agency ommends. memoranda or letters which would not be available by law to a party other [44 FR 50287, Aug. 27, 1979, as amended at 45 than an agency in litigation with the FR 1422, Jan. 7, 1980. Redesignated and agency. amended at 53 FR 2740, Feb. 1, 1988] (f) Personnel and medical files and similar files the disclosure of which § 5.61 Contempt for noncompliance. would constitute a clearly unwarranted In the event of noncompliance by invasion of personal privacy. FEMA with an order of a district court (g) Records or information compiled pursuant to § 5.60, the district court for law enforcment purposes, but only may punish for contempt the FEMA to the extent that the production of employee responsible for the non- such law enforcement records or infor- compliance, pursuant to 5 U.S.C. mation: 552(a)(4)(G). (1) Could reasonably be expected to interfere with enforcement pro- [44 FR 50287, Aug. 27, 1979, as amended at 45 ceedings; FR 1422, Jan. 7, 1980; 50 FR 40006, Oct. 1, 1985. Redesignated and amended at 53 FR 2740, (2) Would deprive a person of a right Feb. 1, 1988] to a fair trial or an impartial adjudication;

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(3) Could reasonably be expected to § 5.72 Executive privilege exemption. constitute an unwarranted invasion of Where application of the executive personal privacy; privilege exemption is desired, the (4) Could reasonably be expected to matter shall be forwarded to the Direc- disclose the identity of a confidential tor for consideration. If the request for source, including a State, local, or for- information is Congressional, only the eign agency or authority or any pri- President may invoke the exemption. vate institution which furnished infor- Presidential approval is not necessarily mation on a confidential basis, and, in required if the request for information the case of a record or information is in connection with judicial or adju- compiled by a criminal law enforce- dicatory proceedings or otherwise. In ment authority in the course of a connection with judicial proceedings, criminal investigation, or by an agency the response shall be coordinated with conducting a lawful national security the Department of Justice. intelligence investigation, information furnished by a confidential source; Subpart F—Subpoenas or Other (5) Would disclose techniques and Legal Demands for Testimony procedures for law enforcement inves- or the Production or Disclo- tigations or prosecutions, or would dis- sure of Records or Other Infor- close guidelines for law enforcement mation investigations or prosecutions if such disclosure could reasonably be ex- SOURCE: 54 FR 11715, Mar. 22, 1989, unless pected to risk circumvention of the otherwise noted. law; or (6) Could reasonably be expected to § 5.80 Scope and applicability. endanger the life or physical safety of (a) This subpart sets forth policies any individual. and procedures with respect to the dis- (h) Contained in or related to exam- closure or production by FEMA em- ination, operating, or condition reports ployees, in response to a subpoena, prepared by, on behalf of, or for the use order or other demand of a court or of any agency responsible for the regu- other authority, of any material con- lation or supervision of financial insti- tained in the files of the Agency or any tutions. information relating to material con- (i) Geological and geophysical infor- tained in the files of the Agency or any mation and data, including maps, con- information acquired by an employee cerning wells. Any reasonably seg- as part of the performance of that per- regable portion of a record shall be pro- son’s official duties or because of that vided to any person requesting the person’s official status. record after deletion of the portions (b) This subpart applies to State and which are exempt under this section. local judicial, administrative and legis- (j) Whenever a request is made which lative proceedings, and Federal judicial involves access to records described in and administrative proceedings. paragraph (g)(1) of this section and the (c) This subpart does not apply to investigation or proceeding involves a Congressional requests or subpoenas for testimony or documents, or to an possible violation of criminal law; and employee making an appearance solely there is reason to believe that the sub- in his or her private capacity in judi- ject of the investigation or proceeding cial or administrative proceedings that is not aware of its pendency, and dis- do not relate to the Agency (such as closure of the existence of the records cases arising out of traffic accidents, could reasonably be expected to inter- domestic relations, etc.). fere with enforcement proceedings, FEMA may, during only such time as § 5.81 Statement of policy. that circumstance continues, treat the (a) It is the policy of FEMA to make records as not subject to the require- its records available to private liti- ments of 5 U.S.C. 552 and this subpart. gants to the same extent and in the [44 FR 50287, Aug. 27, 1979, as amended at 52 same manner as such records are made FR 13679, Apr. 24, 1987] available to members of the general

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public, except where protected from addressed to the General Counsel, disclosure by litigation procedural au- FEMA, Washington, DC 20472. No other thority (e.g., Federal Rules of Civil official or employee of FEMA is au- Procedure) or other applicable law. thorized to accept service of subpoenas (b) It is FEMA’s policy and responsi- on behalf of the Agency. bility to preserve its human resources for performance of the official func- § 5.84 Production of documents in pri- tions of the Agency and to maintain vate litigation. strict impartiality with respect to pri- (a) The production of records held by vate litigants. Participation by FEMA FEMA in response to a subpoena duces employees in private litigation in their tecum or other demand issued pursuant official capacities is generally contrary to private litigation, whether or not to this policy. served in accordance with the provisions of § 5.83 of this subpart, is prohib- § 5.82 Definitions. ited absent authorization by the Gen- For purposes of this subpart, the fol- eral Counsel or, as to records of the Of- lowing terms have the meanings as- fice of the Inspector General, by the In- cribed to them in this section: spector General. (a) Demand refers to a subpoena, (b) Whenever an official or employee order, or other demand of a court of of FEMA, including any Regional Di- competent jurisdiction, or other spe- rector, receives a subpoena or other de- cific authority (e.g., an administrative mand for the production of Agency doc- or State legislative body), signed by uments or material, he or she shall im- the presiding officer, for the produc- mediately notify and provide a copy of tion, disclosure, or release of FEMA the demand to the General Counsel, un- records or information or for the ap- less the subpoena or demand seeks the pearance and testimony of FEMA per- production of documents or material sonnel as witnesses in their official ca- maintained by the Office of Inspector pacities. General, in which case a copy of the de- (b) Employee of the Agency includes all mand shall be provided to the Inspector officers and employees of the United General. States appointed by or subject to the (c) The General Counsel (or Inspector supervision, jurisdiction or control of General), after consultation with other the Director of FEMA. appropriate officials as deemed nec- (c) Private litigation refers to any essary, shall promptly determine legal proceeding which does not in- whether to disclose the material or volve as a named party the United documents identified in the subpoena States Government, or the Federal or other demand. Generally, authoriza- Emergency Management Agency, or tion to furnish the requested material any official thereof in his or her offi- or documents shall not be withheld un- cial capacity. less their disclosure is prohibited by relevant law or for other compelling § 5.83 Authority to accept service of reasons. subpoenas. (d) Whenever a subpoena or demand In all legal proceedings between pri- commanding the production of any vate litigants, a subpoena duces tecum record is served upon any Agency em- or subpoena ad testificandum or other ployee other than as provided in § 5.83 demand by a court or other authority of this subpart, or the response to a de- for the production of records held by mand is required before the receipt of FEMA Regional offices or for the oral instructions from the General Counsel or written testimony of FEMA Re- (or Inspector General), such employee gional employees should be addressed shall appear in response thereto, re- to the appropriate Regional Director spectfully decline to produce the listed in § 5.26. For records or testi- record(s) on the ground that it is pro- mony of the Office of Inspector Gen- hibited by this section and state that eral, the subpoena should be addressed the demand has been referred for the to the Inspector General, FEMA, Wash- prompt consideration of the General ington, DC 20472. For all other records Counsel (or, where appropriate, the In- or testimony, the subpoena should be spector General).

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(e) Where the release of documents in notify the Office of General Counsel. response to a subpoena duces tecum is Employees of the Office of Inspector authorized by the General Counsel (or, General shall notify the Inspector Gen- as to documents maintained by the Of- eral of such demands. The General fice of Inspector General, the Inspector Counsel (or Inspector General through General), the official having custody of designated legal counsel), upon receipt the requested records will furnish, of such notice and absent waiver of the upon the request of the party seeking general prohibition against employee disclosure, authenticated copies of the testimony at his or her discretion, documents. No official or employee of shall arrange with the appropriate FEMA shall respond in strict compli- United States Attorney the taking of ance with the terms of a subpoena such steps as are necessary to quash duces tecum unless specifically author- the subpoena or seek a protective ized by the General Counsel (or Inspec- order. tor General). (c) In the event that an immediate demand for testimony or disclosure is § 5.85 Authentication and attestation made in circumstances which would of copies. preclude prior notice to and consulta- The Director, Deputy Director, Asso- tion with the General Counsel (or In- ciate Directors, Administrators, the spector General), the employee shall General Counsel, the Docket Clerk, In- respectfully request from the demand- spector General, Regional Directors, ing authority a stay in the proceedings and their designees, and other heads of to allow sufficient time to obtain ad- offices having possession of records are vice of counsel. authorized in the name of the Director (d) If the court or other authority de- to authenticate and attest for copies or clines to stay the effect of the demand reproductions of records. Appropriate in response to a request made in ac- fees will be charged for such copies or cordance with paragraph (c) of this sec- reproductions based on the fee schedule tion pending consultation with coun- set forth in section 5.46 of this part. sel, or if the court or other authority § 5.86 Production of documents in liti- rules that the demand must be com- gation or other adjudicatory pro- plied with irrespective of instructions ceeding in which the United States not to testify or disclose the informa- is a party. tion sought, the employee upon whom Subpoenas duces tecum issued pursu- the demand has been made shall re- ant to litigation or any other adjudica- spectfully decline to comply with the tory proceeding in which the United demand, citing these regulations and States is a party shall be handled as United States ex rel. Touhy v. Ragen, 340 provided at § 5.8. U.S. 462 (1951).

§ 5.87 Testimony of FEMA employees § 5.88 Testimony in litigation in which in private litigation. the United States is a party. (a) No FEMA employee shall testify (a) Whenever, in any legal proceeding in response to a subpoena or other de- in which the United States is a party, mand in private litigation as to any in- the attorney in charge of presenting formation relating to material con- the case for the United States requests tained in the files of the Agency, or it, the General Counsel shall arrange any information acquired as part of the for an employee of the Agency to tes- performance of that person’s official tify as a witness for the United States. duties or because of that person’s offi- (b) The attendance and testimony of cial status, including the meaning of named employees of the Agency may Agency documents. not be required in any legal proceeding (b) Whenever a demand is made upon by the judge or other presiding officer, a FEMA employee, other than an em- by subpoena or otherwise. However, the ployee of the Office of Inspector Gen- judge or other presiding officer may, eral, for the disclosure of information upon a showing of exceptional cir- described in paragraph (a) of this sec- cumstances (such as a case in which a tion, that employee shall immediately particular named FEMA employee has

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direct personal knowledge of a mate- 6.34 Appeal of denial of access within rial fact not known to the witness FEMA. made available by the Agency) require the attendance and testimony of Subpart D—Requests To Amend Records named FEMA personnel. 6.50 Submission of requests to amend records. § 5.89 Waiver. 6.51 Review of requests to amend records. The General Counsel (or, as to em- 6.52 Approval of requests to amend records. ployees of the Office of Inspector Gen- 6.53 Denial of requests to amend records. eral, the Inspector General) may grant, 6.54 Agreement to alternative amendments. 6.55 Appeal of denial of request to amend a in writing, a waiver of any policy or record. procedure prescribed by this subpart, 6.56 Statement of disagreement. where waiver is considered necessary 6.57 Judicial review. to promote a significant interest of the Agency or for other good cause. In Subpart E—Report on New Systems and granting such waiver, the General Alterations of Existing Systems Counsel (or Inspector General) shall attach to the waiver such reasonable con- 6.70 Reporting requirement. 6.71 Federal Register notice of establish- ditions and limitations as are deemed ment of new system or alteration of ex- appropriate in order that a response in isting system. strict compliance with the terms of a 6.72 Effective date of new system of records subpoena duces tecum or the providing or alteration of an existing system of of testimony will not interfere with the records. duties of the employee and will otherwise conform to the policies of this Subpart F—Fees part. The Director may, in his or her 6.80 Records available at fee. discretion, review any decision to au- 6.81 Additional copies. thorize a waiver of any policy or proce- 6.82 Waiver of fee. dure prescribed by this subpart. 6.83 Prepayment of fees. 6.84 Form of payment. PART 6—IMPLEMENTATION OF THE 6.85 Reproduction fees. PRIVACY ACT OF 1974 Subpart G—Exempt Systems of Records

Subpart A—General 6.86 General exemptions. 6.87 Specific exemptions. Sec. AUTHORITY: 5 U.S.C. 552a; Reorganization 6.1 Purpose and scope of part. Plan No. 3 of 1978; and E.O. 12127. 6.2 Definitions. 6.3 Collection and use of information (Pri- SOURCE: 44 FR 50293, Aug. 27, 1979, unless vacy Act statements). otherwise noted. 6.4 Standards of accuracy. 6.5 Rules of conduct. Subpart A—General 6.6 Safeguarding systems of records. 6.7 Records of other agencies. § 6.1 Purpose and scope of part. 6.8 Subpoena and other legal demands. 6.9 Inconsistent issuances of FEMA and/or This part sets forth policies and pro- its predecessor agencies superseded. cedures concerning the collection, use 6.10 Assistance and referrals. and dissemination of records maintained by the Federal Emergency Man- Subpart B—Disclosure of Records agement Agency (FEMA) which are 6.20 Conditions of disclosure. subject to the provision of 5 U.S.C. 6.21 Procedures for disclosure. 552a, popularly known as the ‘‘Privacy 6.22 Accounting of disclosures. Act of 1974’’ (hereinafter referred to as the Act). These policies and procedures Subpart C—Individual Access to Records govern only those records as defined in § 6.2. Policies and procedures governing 6.30 Form of requests. 6.31 Special requirements for medical rec- the disclosure and availability of ords. records in general are in part 5 of this 6.32 Granting access. chapter. This part also covers: (a) Pro- 6.33 Denials of access. cedures for notification to individuals

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of a FEMA system of records per- and for the collection, use, and dis- taining to them; (b) guidance to indi- semination of information therein. viduals in obtaining information, in- (i) Subject individual means the indi- cluding inspections of, and disagree- vidual named or discussed in a record ment with, the content of records; (c) of the individual to whom a record oth- accounting of disclosure; (d) special re- erwise pertains. quirements for medical records; and (e) (j) Disclosure means a transfer of a fees. record, a copy of a record, or any or all of the information contained in a § 6.2 Definitions. record to a recipient other than the For the purpose of this part: subject individual, or the review of a (a) Agency includes any executive de- record by someone other than the sub- partment, military department, Gov- ject individual. ernment corporation, Government con- (k) Access means a transfer of a trolled corporation, or other establish- record, a copy of a record, or the infor- ment in the executive branch of the mation in a record to the subject indi- Government (including the Executive vidual, or the review of a record by the Office of the President), or any inde- subject individual. (l) Solicitation means a request by an pendent regulatory agency (see 5 U.S.C. officer or employee of FEMA that an 552(e)). individual provide information about (b) means a citizen of the Individual himself or herself. United States or an alien lawfully ad- (m) Director means the Director, mitted for permanent residence. FEMA. (c) Maintain includes maintain, col- (n) Deputy Director means the Deputy lect, use, and disseminate. Director, FEMA, or, in the case of the (d) Record means any item, collec- absence of the Deputy Director, or a tion, or grouping of information about vacancy in that office, a person des- an individual that is maintained by an ignated by the Director to perform the agency, including, but not limited to functions under this regulation of the those concerning education, financial Deputy Director. transactions, medical history, and (o) Privacy Appeals Officer means the criminal or employment history, and FOIA/Privacy Act Specialist or his/her that contains the name or other identi- designee. fying particular assigned to the individual, such as a fingerprint, [44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980; 51 FR 34604, Sept. 30, voiceprint, or photograph. 1986] (e) System of records means a group of any records under the control of an § 6.3 Collection and use of information agency from which information is re- (Privacy Act statements). trieved by the name of the individual (a) General. Any information used in or by some identifying number, sym- whole or in part in making a deter- bol, or other identification assigned to mination about an individual’s rights, that individual. benefits, or privileges under FEMA pro- (f) Statistical record means a record in grams will be collected directly from a system of records maintained for sta- the subject individual to the extent tistical research or reporting purposes practicable. The system manager also only and not used in whole or in part in shall ensure that information collected making any determination about an is used only in conformance with the identifiable individual, except as pro- provisions of the Act and these regula- vided by 13 U.S.C. 8. tions. (g) Routine use means, with respect to (b) Solicitation of information. System the disclosure of a record, the use of managers shall ensure that at the time that record for a purpose which is com- information is solicited the solicited patible with the purpose for which it individual is informed of the authority was collected. for collecting that information, wheth- (h) System manager means the emer providing the information is manda- ployee of FEMA who is responsible for tory or voluntary, the purpose for the maintenance of a system of records which the information will be used, the

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routine uses to be made of the informa- § 6.5 Rules of conduct. tion, and the effects on the individual, Employees of FEMA involved in the if any, of not providing the informa- design, development, operation, or tion. The Director, Office of Adminis- maintenance of any system of records trative Support and Regional Directors or in maintaining any record, shall shall ensure that forms used to solicit conduct themselves in accordance with information are in compliance with the the rules of conduct concerning the Act and these regulations. protection of personal information in (c) Solicitation of Social Security num- § 3.25 of this chapter. bers. Before an employee of FEMA can deny to any individual a right, benefit, § 6.6 Safeguarding systems of records. or privilege provided by law because such individual refuses to disclose his/ (a) Systems managers shall ensure her social security account number, that appropriate administrative, tech- the employee of FEMA shall ensure nical, and physical safeguards are es- that either: tablished to ensure the security and confidentiality of records and to pro- (1) The disclosure is required by Fed- tect against any anticipated threats or eral statute; or hazards to their security or integrity (2) The disclosure of a social security which could result in substantial harm, number was required under a statute or embarrassment, inconvenience, or un- regulation adopted before January 1, fairness to any individual on whom in- 1975, to verify the identity of an indi- formation is maintained. vidual, and the social security number (b) Personnel information contained will become a part of a system of in both manual and automated systems records in existence and operating be- of records shall be protected by imple- fore January 1, 1975. menting the following safeguards: If solicitation of the social security (1) Official personnel folders, author- number is authorized under paragraph ized personnel operating or work fold- (c) (1) or (2) of this section, the FEMA ers and other records of personnel ac- employee who requests an individual to tions effected during an employee’s disclose the social security account Federal service or affecting the em- number shall first inform that indi- ployee’s status and service, including vidual whether that disclosure is man- information on experience, education, datory or voluntary, by what statutory training, special qualification, and or other authority the number is solic- skills, performance appraisals, and ited, and the use that will be made of conduct, shall be stored in a lockable it. metal filing cabinet when not in use by (d) Soliciting information from third an authorized person. A system man- parties. An employee of FEMA shall in- ager may employ an alternative stor- form third parties who are requested to age system providing that it furnished provide information about another in- an equivalent degree of physical secu- dividual of the purposes for which the rity as storage in a lockable metal fil- information will be used. ing cabinet. [44 FR 50293, Aug. 27, 1979, as amended at 47 (2) System managers, at their discre- FR 13149, Mar. 29, 1982; 48 FR 12091, Mar. 23, tion, may designate additional records 1983; 50 FR 40006, Oct. 1, 1985] of unusual sensitivity which require safeguards similar to those described in § 6.4 Standards of accuracy. paragraph (a) of this section. The system manager shall ensure (3) A system manager shall permit that all records which are used by access to and use of automated or man- FEMA to make determinations about ual personnel records only to persons any individual are maintained with whose official duties require such ac- such accuracy, relevance, timeliness, cess, or to a subject individual or his or and completeness as is reasonably nec- her representative as provided by this essary to ensure fairness to the indi- part. vidual.

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§ 6.7 Records of other agencies. (d) To the Bureau of the Census for If FEMA receives a request for access use pursuant to title 13, United States to records which are the primary re- Code; sponsibility of another agency, but (e) To a recipient who has provided which are maintained by or in the tem- FEMA with advance adequate written porary possession of FEMA on behalf of assurance that the record will be used that agency, FEMA will advise the re- solely as a statistical research or requestor that the request has been for- porting record subject to the following: warded to the responsible agency. The record shall be transferred in a Records in the custody of FEMA which form that is not individually identifi- are the primary responsibility of the able. The written statement should in- Office of Personnel Management are clude as a minimum (1) a statement of governed by the rules promulgated by the purpose for requesting the records; it pursuant to the Privacy Act. and (2) certification that the records will be used only for statistical pur- § 6.8 Subpoena and other legal de- poses. These written statements should mands. be maintained as accounting records. Access to records in systems of In addition to deleting personal identi- records by subpoena or other legal fying information from records re- process shall be in accordance with the leased for statistical purposes, the sys- provisions of part 5 of this chapter. tem manager shall ensure that the identity of the individual cannot rea- § 6.9 Inconsistent issuances of FEMA sonably be deduced by combining var- and/or its predecessor agencies su- ious statistical records; perseded. (f) To the National Archives of the Any policies and procedures in any United States as a record which has issuances of FEMA or any of its prede- sufficient historical or other value to cessor agencies which are inconsistent warrant its continued preservation by with the policies and procedures in this the United States Government, or for part are superseded to the extent of evaluation by the Administrator of The that inconsistency. National Archives and Records Admin- istration or his designee to determine § 6.10 Assistance and referrals. whether the record has such value; Requests for assistance and referral (g) To another agency or instrumen- to the responsible system manager or tality of any governmental jurisdiction other FEMA employee charged with within or under the control of the implementing these regulations should United States for civil or criminal law be made to the Privacy Appeals Offi- enforcement activity, if the activity is cer, Federal Emergency Management authorized by law, and if the head of Agency, Washington, DC 20472. the agency or instrumentality or his designated representative has made a [45 FR 17152, Mar. 18, 1980] written request to the Director specifying the particular portion desired Subpart B—Disclosure of Records and the law enforcement activity for which the record is sought; § 6.20 Conditions of disclosure. (h) To a person showing compelling No employee of FEMA shall disclose circumstances affecting the health and any record to any person or to another safety of an individual to whom the agency without the express written record pertains. (Upon such disclosure, consent of the subject individual unless a notification must be sent to the last the disclosure is: known address of the subject indi- (a) To officers or employees of FEMA vidual.) who have a need for the information in (i) To either House of Congress or to the official performance of their duties; a subcommittee or committee (joint or (b) Required by the provisions of the of either House, to the extent that the Freedom of Information Act, 5 U.S.C. subject matter falls within their juris- 552. diction; (c) For a routine use as published in (j) To the Comptroller General or any the notices in the FEDERAL REGISTER; duly authorized representatives of the

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Comptroller General in the course of the accounting of disclosures shall be the performance of the duties of the made available to the individual upon General Accounting Office; or request. Procedures for requesting ac- (k) Pursuant to the order of a court cess to the accounting are in subpart C of competent jurisdiction. of this part. (l) To consumer reporting agencies as defined in the Fair Credit Reporting Subpart C—Individual Access to Act (35 U.S.C. 1681a(f) or the Debt Col- Records lection Act of 1982 (31 U.S.C. 3711(d)(4)). [44 FR 50293, Aug. 27, 1979, as amended at 48 § 6.30 Form of requests. FR 44543, Sept. 29, 1983; 50 FR 40006, Oct. 1, (a) An individual who seeks access to 1985] his or her record or to any information pertaining to the individual which is § 6.21 Procedures for disclosure. contained in a system of records should (a) Upon receipt of a request for dis- notify the system manager at the ad- closure, the system manager shall dress indicated in the FEDERAL REG- verify the right of the requestor to ob- ISTER notice describing the pertinent tain disclosure pursuant to § 6.20. Upon system. The notice should bear the leg- that verification and subject to other end ‘‘Privacy Act Request’’ both on the requirements of this part, the system request letter and on the envelope. It manager shall make the requested will help in the processing of a request records available. if the request letter contains the com- (b) If the system manager determines plete name and identifying number of that the disclosure is not permitted the system as published in the FED- under the provisions of § 6.20 or other ERAL REGISTER; the full name and ad- provisions of this part, the system dress of the subject individual; a brief manager shall deny the request in writ- description of the nature, time, place, ing and shall inform the requestor of and circumstances of the individual’s the right to submit a request for re- association with FEMA; and any other view and final determination to the Di- information which the individual be- rector or designee. lieves would help the system manager to determine whether the information § 6.22 Accounting of disclosures. about the individual is included in the (a) Except for disclosures made pur- system of records. The system manager suant to § 6.20 (a) and (b), an accurate shall answer or acknowledge the re- accounting of each disclosure shall be quest within 10 workdays of its receipt made and retained for 5 years after the by FEMA. disclosure or for the life of the record, (b) The system manager, at his dis- whichever is longer. The accounting cretion, may accept oral requests for shall include the date, nature, and pur- access subject to verification of iden- pose of each disclosure, and the name tity. and address of the person or agency to whom the disclosure is made; § 6.31 Special requirements for med- (b) The system manager also shall ical records. maintain in conjunction with the ac- (a) A system manager who receives a counting of disclosures; request from an individual for access to (1) A full statement of the justifica- those official medical records which be- tion for the disclosure. long to the U.S. Office of Personnel (2) All documentation surrounding Management and are described in disclosure of a record for statistical or Chapter 339, Federal Personnel Manual law enforcement purposes; and (medical records about entrance quali- (3) Evidence of written consent to a fications or fitness for duty, or medical disclosure given by the subject indi- records which are otherwise filed in the vidual. Official Personnel Folder), shall refer (c) Except for the accounting of dis- the pertinent system of records to a closures made to agencies or instru- Federal Medical Officer for review and mentalities in law enforcement activi- determination in accordance with this ties in accordance with § 6.20 (g) or of section. If no Federal Medical Officer is disclosures made from exempt systems available to make the determination

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required by this section, the system (d) Records will be available for au- manager shall refer the request and the thorized access during normal business medical reports concerned to the Office hours at the offices where the records of Personnel Management for deter- are located. A requestor should be pre- mination. pared to identify himself or herself by (b) If, in the opinion of a Federal signature; i.e., to note by signature the Medical Officer, medical records re- date of access and/or produce other quested by the subject individual indi- identification verifying the signature. cate a condition about which a prudent (e) Upon request, a system manager physician would hesitate to inform a shall permit an individual to examine person suffering from such a condition the original of a non-exempt record, of its exact nature and probable out- shall provide the individual with a come, the system manager shall not re- copy of the record, or both. Fees shall lease the medical information to the be charged in accordance with subpart subject individual nor to any person F. other than a physician designated in (f) An individual may request to pick writing by the subject individual, or up a record in person or to receive it by the guardian or conservator of the indi- mail, directed to the name and address vidual. provided by the individual in the re- (c) If, in the opinion of a Federal quest. A system manager shall not Medical Officer, the medical informa- make a record available to a third tion does not indicate the presence of party for delivery to the subject indi- any condition which would cause a pru- vidual except for medical records as dent physician to hesitate to inform a outlined in § 6.31. person suffering from such a condition (g) An individual who selects another of its exact nature and probable out- person to review, or to accompany the come, the system manager shall re- individual in reviewing or obtaining a lease it to the subject individual or to copy of the record must, prior to the any person, firm, or organization which disclosure, sign a statement author- the individual authorizes in writing to izing the disclosure of the record. The receive it. system manager shall maintain this statement with the record. § 6.32 Granting access. (h) The procedure for access to an ac- (a) Upon receipt of a request for accounting of disclosure is identical to cess to non-exempt records, the system the procedure for access to a record as manager shall make these records set forth in this section. available to the subject individual or shall acknowledge the request within § 6.33 Denials of access. 10 workdays of its receipt by FEMA. (a) A system manager may deny an The acknowledgment shall indicate individual access to that individual’s when the system manager will make record only upon the grounds that the records available. FEMA has published the rules in the (b) If the system manager anticipates FEDERAL REGISTER exempting the per- more than a 10 day delay in making a tinent system of records from the ac- record available, he or she also shall cess requirement. These exempt sys- include in the acknowledgment specific tems of records are described in sub- reasons for the delay. part G of this part. (c) If a subject individual’s request (b) Upon receipt of a request for ac- for access does not contain sufficient cess to a record which the system man- information to permit the system manager believes is contained within an ex- ager to locate the records, the system empt system of records he or she shall manager shall request additional infor- forward the request to the appropriate mation from the individual and shall official listed below or to his or her have 10 workdays following receipt of delegate through normal supervisory the additional information in which to channels. make the records available or to ac- (1) Deputy Director knowledge receipt of the request and (2) [Reserved] indicate when the records will be avail- (3) Federal Insurance Administrator able. (4) Associate Directors

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(5) United States Fire Administrator access will be processed in the same (6) Chief of Staff manner as processing for appeals from (7) Office Directors a denial of a request to amend a record (8) General Counsel set out in § 6.55, regardless whether the (9) Inspector General denial being appealed is made at head- (10) Comptroller quarters or by a regional official. (11) Regional Directors The system manager shall append to Subpart D—Requests To Amend the request an explanation of the determination that the requested record Records is contained within an exempt system of records and a recommendation that § 6.50 Submission of requests to amend records. the request be denied or granted. (c) In the event that the system man- An individual who desires to amend ager serves in one of the positions list- any record containing personal infor- ed in paragraph (b) of this section, he mation about the individual should di- or she shall retain the responsibility rect a written request to the system for denying or granting the request. manager specified in the pertinent (d) The appropriate official listed in FEDERAL REGISTER notice concerning paragraph (b) of this section shall, in FEMA’s systems of records. A current consultation with the Office of General FEMA employee who desires to amend Counsel and such other officials as personnel records should submit a writ- deemed appropriate, determine if the ten request to the FEMA Director of request record is contained within an Personnel, Washington, DC 20472. Each exempt system of records and: request should include evidence of and (1) If the record is not contained justification for the need to amend the within an exempt system of records, pertinent record. Each request should the above official shall notify the system manager to grant the request in bear the legend ‘‘Privacy Act—Request accordance with § 6.32, or to Amend Record’’ prominently (2) If the record is contained within marked on both the face of the request an exempt system said official shall; letter and the envelope. (i) Notify the requestor that the request is denied, including a statement § 6.51 Review of requests to amend justifying the denial and advising the records. requestor of a right to judicial review (a) The system manager shall ac- of that decision as provided in § 6.57, or knowledge the receipt of a request to (ii) Notify the system manager to amend a record within 10 workdays. If make record available to the requestor possible, the acknowledgment shall in- in accordance with § 6.31, notwith- clude the system manager’s determina- standing the record’s inclusion within tion either to amend the record or to an exempt system. deny the request to amend as provided (e) The appropriate official listed in in § 6.53. paragraph (b) of this section shall pro- (b) When reviewing a record in re- vide the Privacy Appeals Office with a sponse to a request to amend, the sys- copy of any denial of a requested ac- tem manager shall assess the accuracy, cess. relevance, timeliness, and complete- [44 FR 50293, Aug. 27, 1979, as amended at 48 ness of the existing record in light of FR 44543, Sept. 29, 1983; 50 FR 40006, Oct. 1, the proposed amendment and shall de- 1985; 51 FR 34604, Sept. 30, 1986] termine whether the request for the § 6.34 Appeal of denial of access within amendment is justified. With respect FEMA. to a request to delete information, the A requestor denied access in whole or system manager also shall review the in part, to records pertaining to that request and the existing record to de- individual, exclusive of those records termine whether the information is rel- for which the system manager is the evant and necessary to accomplish an Director, may file an administrative agency purpose required to be accom- appeal of that denial. Appeals of denied plished by statute or Executive Order.

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§ 6.52 Approval of requests to amend Officer a copy of each initial denial of records. a request to amend a record. If the system manager determines [44 FR 50293, Aug. 27, 1979, as amended at 45 that amendment of a record is proper FR 17152, Mar. 18, 1980] in accordance with the request to § 6.54 Agreement to alternative amend- amend, he or she promptly shall make ments. the necessary corrections to the record and shall send a copy of the corrected If the denial of a request to amend a record to the individual. Where an ac- record includes proposed alternative counting of disclosure has been main- amendments, and if the requestor agrees to accept them, he or she must tained, the system manager shall ad- notify the official who signed the devise all previous recipients of the nial. That official immediately shall record of the fact that a correction has instruct the system manager to make been made and the substance of the the necessary amendments in accord- correction. Where practicable, the sys- ance with § 6.52. tem manager shall advise the Privacy Appeals Officer that a request to § 6.55 Appeal of denial of request to amend has been approved. amend a record. (a) A requestor who disagrees with a § 6.53 Denial of requests to amend rec- denial of a request to amend a record ords. may file an administrative appeal of (a) If the system manager determines that denial. The requestor should ad- that an amendment of a record is im- dress the appeal to the FEMA Privacy proper or that the record should be Appeals Officer, Washington, DC 20472. amended in a manner other than that If the requestor is an employee of requested by an individual, he shall FEMA and the denial to amend in- refer the request to amend and his de- volves a record maintained in the em- terminations and recommendations to ployee’s Official Personnel Folder cov- the appropriate official listed in ered by an Office of Personnel Manage- § 6.33(b) through normal supervisory ment Government-wide system notice, channels. the appeal should be addressed to the (b) If the official listed in § 6.33, after Assistant Director, Information Sys- reviewing the request to amend a tems, Agency Compliance and Evalua- record, determines to amend the record tion Group, Office of Personnel Man- in accordance with the request, said of- agement, Washington, DC 20415. ficial promptly shall return the request (b) Each appeal to the Privacy Act to the system manager with instruc- Appeals Officer shall be in writing and tions to make the requested amend- must be received by FEMA no later ments in accordance with § 6.52. than 30 calendar days from the requestor’s receipt of a denial of a request to (c) If the appropriate official listed in amend a record. The appeal should bear § 6.33, after reviewing the request to the legend ‘‘Privacy Act—Appeal,’’ amend a record, determines not to both on the face of the letter and the amend the record in accordance with envelope. the request, the requestor shall be (c) Upon receipt of an appeal, the Pri- promptly advised in writing of the de- vacy Act Appeals Officer shall consult termination. The refusal letter (1) shall with the system manager, the official state the reasons for the denial of the who made the denial, the General request to amend; (2) shall include pro- Counsel or a member of that office, and posed alternative amendments, if ap- such other officials as may be appro- propriate; (3) shall state the reques- priate. If the Privacy Act Appeals Offi- tor’s right to appeal the denial of the cer in consultation with these officials, request to amend; and (4) shall state determines that the record should be the procedures for appealing and the amended, as requested, the system name and title of the official to whom manager shall be instructed imme- the appeal is to be addressed. diately to amend the record in accord- (d) The appropriate official listed in ance with § 6.52 and shall notify the re- § 6.33 shall furnish the Privacy Appeals questor of that action.

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(d) If the Privacy Act Appeals Offi- the appropriate system manager. The cer, in consultation with the officials Statement of Disagreement should in- specified in paragraph (c) of this sec- clude an explanation of why the re- tion, determines that the appeal should questor believes the record to be inac- be rejected, the Privacy Act Appeals curate, irrelevant, untimely, or incom- Officer shall submit the file on the re- plete. The system manager shall main- quest and appeal, including findings tain the Statement of Disagreement in and recommendations, to the Deputy conjunction with the pertinent record, Director for a final administrative de- and shall include a copy of the State- termination. ment of Disagreement in any disclo- (e) If the Deputy Director determines sure of the pertinent record. The sys- that the record should be amended as tem manager shall provide a copy of requested, he or she immediately shall the Statement of Disagreement to any instruct the system manager in writing person or agency to whom the record to amend the record in accordance with has been disclosed only if the disclo- § 6.52. The Deputy Director shall send a sure was subject to the accounting re- copy of those instructions to the Pri- quirements of § 6.22. vacy Act Appeals Officer, who shall notify the requester of that action. § 6.57 Judicial review. (f) If the Deputy Director determines Within 2 years of receipt of a final to reject the appeal, the requestor shall administrative determination as pro- immediately be notified in writing of vided in § 6.34 or § 6.55, a requestor may that determination. This action shall seek judicial review of that determina- constitute the final administrative de- tion. A civil action must be filed in the termination on the request to amend Federal District Court in which the re- the record and shall include: questor resides or has his or her prin- (1) The reasons for the rejection of cipal place of business or in which the the appeal. agency records are situated, or in the (2) Proposed alternative amend- District of Columbia. ments, if appropriate, which the requestor subsequently may accept in ac- Subpart E—Report on New Sys- cordance with § 6.54. tems and Alterations of Exist- (3) Notice of the requestor’s right to file a Statement of Disagreement for ing Systems distribution in accordance with § 6.56. § 6.70 Reporting requirement. (4) Notice of the requestor’s right to seek judicial review of the final admin- (a) No later than 90 calendar days istrative determination, as provided in prior to the establishment of a new § 6.57. system of records, the prospective sys- (g) The final agency determination tem manager shall notify the Privacy must be made no later than 30 work- Appeals Officer of the proposed new system. The prospective system man- days from the date on which the appeal ager shall include with the notification is received by the Privacy Act Appeals a completed FEMA Form 11–2, System Officer. of Records Covered by the Privacy Act (h) In extraordinary circumstances, of 1974, and a justification for each sys- the Director may extend this time tem of records proposed to be estab- limit by notifying the requestor in lished. If the Privacy Appeals Officer writing before the expiration of the 30 determines that the establishment of workdays. The Director’s notification the proposed system is in the best in- will include a justification for the ex- terest of the Government, then no later tension. than 60 calendar days prior to the es- [44 FR 50293, Aug. 27, 1979, as amended at 45 tablishment of that system of records, FR 17152, Mar. 18, 1980] a report of the proposal shall be submitted by the Director or a designee § 6.56 Statement of disagreement. thereof, to the President of the Senate, Upon receipt of a final administra- the Speaker of the House of Represent- tive determination denying a request atives, and the Administrator, Office of to amend a record, the requestor may Information and Regulatory Affairs, file a Statement of Disagreement with Office of Management and Budget for

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their evaluation of the probable or po- the Office of Management and Budget tential effect of that proposal on the do not object to the establishment of a privacy and other personal or property new system or records or to the alter- rights of individuals. ation of an existing system of records, (b) No later than 90 calendar days or prior to the alteration of a system of (b) No fewer than 30 calendar days records, the system manager respon- elapse from the date of submission of sible for the maintenance of that sys- the proposal to the Senate, the House tem of records shall notify the Privacy of Representatives, and the Office of Appeals Officer of the proposed alter- Management and Budget without re- ation. The system manager shall in- ceipt of an objection to the proposal. clude with the notification a completed The notice shall include all of the in- FEMA Form 11–2. System of Records Covered by the Privacy Act of 1974, and formation required to be provided in a justification for each system of FEMA Form 11–2, System of Records records he proposes to alter. If it is de- Covered by the Privacy Act of 1974, and termined that the proposed alteration such other information as the Director is in the best interest of the Govern- deems necessary. ment, then, the Director, or a designee thereof, shall submit, no later than 60 § 6.72 Effective date of new system of calendar days prior to the establish- records or alteration of an existing ment of that alteration, a report of the system of records. proposal to the President of the Sen- Systems of records proposed to be es- ate, the Speaker of the House of Rep- tablished or altered in accordance with resentatives, and the Administrator, the provisions of this subpart shall be Office of Information and Regulatory effective no sooner than 30 calendar Affairs, Office of Management and days from the publication of the notice Budget for their evaluation of the prob- required by § 6.71. able or potential effect of that proposal on the privacy and other personal or Subpart F—Fees property rights of individuals. (c) The reports required by this regu- § 6.80 Records available at fee. lation are exempt from reports control. (d) The Administrator, Office of In- The system manager shall provide a formation and Regulatory Affairs, Of- copy of a record to a requestor at a fee fice of Management and Budget may prescribed in § 6.85 unless the fee is waive the time requirements set out in waived under § 6.82. this section upon a finding that a delay [44 FR 50293, Aug. 27, 1979, as amended at 45 in the establishing or amending the FR 17152, Mar. 18, 1980] system would not be in the public interest and showing how the public in- § 6.81 Additional copies. terest would be adversely affected if the waiver were not granted and other- A reasonable number of additional wise complying with OMB Circular A– copies shall be provided for the applica- 130. ble fee to a requestor who indicates that he has no access to commercial re- [44 FR 50293, Aug. 27, 1979, as amended at 45 production services. FR 17152, Mar. 18, 1980; 51 FR 34604, Sept. 30, 1986] § 6.82 Waiver of fee. § 6.71 Federal Register notice of estab- The system manager shall make one lishment of new system or alter- copy of a record, up to 300 pages, avail- ation of existing system. able without charge to a requestor who Notice of the proposed establishment is an employee of FEMA. The system or alteration of a system of records manager may waive the fee require- shall be published in the FEDERAL REG- ment for any other requestor if the ISTER, in accordance with FEMA proce- cost of collecting the fee is an unduly dures when: large part of, or greater than, the fee, (a) Notice is received that the Sen- or when furnishing the record without ate, the House of Representatives, and

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charge conforms to generally estab- shall notify the requester of the esti- lished business custom or is in the pub- mated amount of fees, unless the re- lic interest. quester has indicated in advance his/ her willingness to pay fees as high as [44 FR 50287, Aug. 27, 1979, as amended at 52 FR 13679, Apr. 24, 1987] those anticipated. Such a notice shall offer a requester the opportunity to § 6.83 Prepayment of fees. confer with agency personnel with the (a) When FEMA estimates or deter- objective of reformulating the request mines that allowable charges that a re- to meet his/her needs at a lower cost. quester may be required to pay are (3) For other methods of reproduction likely to exceed $250.00, FEMA may re- or duplication, FEMA shall charge the quire a requester to make an advance actual direct costs of producing the payment of the entire fee before con- document(s). If FEMA estimates that tinuing to process the request. the allowable duplication charges are (b) When a requester has previously likely to exceed $25, it shall notify the failed to pay a fee charged in a timely requester of the estimated amount of fashion (i.e., within 30 days of the date fees, unless the requester has indicated of the billing), FEMA may require the in advance his/her willingness to pay requester to pay the full amount owed fees as high as those anticipated. Such plus any applicable interest as provided a notice shall offer a requester the opin § 6.85(d), and to make an advance portunity to confer with agency per- payment of the full amount of the esti- sonnel with the objective of reformu- mated fee before the agency begins to lating the request to meet his/her process a new request or a pending re- needs at a lower cost. quest from that requester. (b) Interest may be charge to those (c) When FEMA acts under § 5.44 (a) requesters who fail to pay fees charged. or (b), the administrative time limits FEMA may begin assessing interest prescribed in subsection (a)(6) of the charges on the amount billed starting FOIA (i.e., 10 working days from the re- on the 31st day following the day on ceipt of initial requests and 20 working which the billing was sent. Interest days from receipt of appeals from ini- will be at the rate prescribed in section tial denial, plus permissible extensions 3717 of title 31 U.S.C. of these time limits) will begin only [52 FR 13679, Apr. 24, 1987] after FEMA has received fee payments described under § 5.44 (a) or (b). Subpart G—Exempt Systems of [52 FR 13679, Apr. 24, 1987] Records § 6.84 Form of payment. § 6.86 General exemptions. Payment shall be by check or money (a) Whenever the Director, Federal order payable to The Federal Emer- Emergency Management Agency, de- gency Management Agency and shall termines it to be necessary and proper, be addressed to the system manager. with respect to any system of records maintained by the Federal Emergency § 6.85 Reproduction fees. Management Agency, to exercise the (a) Duplication costs. (1) For copies of right to promulgate rules to exempt documents reproduced on a standard such systems in accordance with the office copying machine in sizes up to provisions of 5 U.S.C. 552a (j) and (k), 81⁄2 x 14 inches, the charge will be $.15 each specific exemption, including the per page. parts of each system to be exempted, (2) The fee for reproducing copies of the provisions of the Act from which records over 81⁄2 x 14 inches or whose they are exempted, and the justifica- physical characteristics do not permit tion for each exemption shall be pub- reproduction by routine electrostatic lished in the FEDERAL REGISTER as part copying shall be the direct cost of re- of FEMA’s Notice of Systems of Rec- producing the records through Govern- ords. ment or commercial sources. If FEMA (b) Exempt under 5 U.S.C. 552a(j)(2) estimates that the allowable duplica- from the requirements of 5 U.S.C. tion charges are likely to exceed $25, it 552a(c) (3) and (4), (d), (e) (1), (2), (3),

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(e)(4) (G), (H), and (I), (e) (5) and (8) (f) nature of the investigation, and this and (g) of the Privacy Act. could enable them to avoid detection (1) Exempt systems. The following sys- or apprehension in the following ways: tems of records, which contain infor- (A) By discovering the collection of mation of the type described in 5 U.S.C. facts which would form the basis for 552(j)(2), shall be exempt from the pro- their arrest, (B) by enabling them to visions of 5 U.S.C. 552a listed in para- destroy evidence of criminal conduct graph (b) of this section. which would form the basis for their arrest, and (C) by learning that the General Investigative Files (FEMA/IG–2)— criminal investigators had reason to Limited Access believe that a crime was about to be (2) Reasons for exemptions. (i) 5 U.S.C. committed, they could delay the com- 552a (e)(4)(G) and (f)(1) enable individ- mission of the crime or change the uals to be notified whether a system of scene of the crime to a location which records contains records pertaining to might not be under surveillance. them. The Federal Emergency Manage- Granting access to ongoing or closed ment Agency believes that application investigative files would also reveal in- of these provisions to the above-listed vestigative techniques and procedures, system of records would give individ- the knowledge of which could enable uals an opportunity to learn whether individuals planning criminal activity they are of record either as suspects or to structure their future operations in as subjects of a criminal investigation; such a way as to avoid detection or ap- this would compromise the ability of prehension, thereby neutralizing law the Federal Emergency Management enforcement officers’ established inves- Agency to complete investigations and tigative tools and procedures. Further, identify or detect violators of laws ad- granting access to investigative files ministered by the Federal Emergency and records could disclose the identity Management Agency or other Federal of confidential sources and other in- agencies. Individuals would be able (A) formers and the nature of the informa- to take steps to avoid detection, (B) to tion which they supplied, thereby en- inform co-conspirators of the fact that dangering the life or physical safety of an investigation is being conducted, (C) those sources of information by expos- to learn the nature of the investigation ing them to possible reprisals for hav- to which they are being subjected, (D) ing provided information relating to to learn the type of surveillance being the criminal activities of those individ- utilized, (E) to learn whether they are uals who are the subjects of the inves- only suspects or identified law viola- tigative files and records; confidential tors, (F) to continue to resume their il- sources and other informers might legal conduct without fear of detection refuse to provide criminal investiga- upon learning that they are not in a tors with valuable information if they particular system of records, and (G) to could not be secure in the knowledge destroy evidence needed to prove the that their identities would not be re- violation. vealed through disclosure of either (ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and their names or the nature of the infor- (f)(2), (3) and (5) enable individuals to mation they supplied, and this would gain access to records pertaining to seriously impair the ability of the Fed- them. The Federal Emergency Manage- eral Emergency Management Agency ment Agency believes that application to carry out its mandate to enforce of these provisions to the above-listed criminal and related laws. Addition- system of records would compromise ally, providing access to records con- its ability to complete or continue tained in the above-listed system of criminal investigations and to detect records could reveal the identities of or identify violators of laws adminis- undercover law enforcement personnel tered by the Federal Emergency Man- who compiled information regarding agement Agency or other Federal agen- individual’s criminal activities, there- cies. Permitting access to records con- by endangering the life or physical tained in the above-listed system of safety of those undercover personnel or records would provide individuals with their families by exposing them to pos- significant information concerning the sible reprisals.

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(iii) 5 U.S.C. 552a(d) (2), (3) and (4), accountings of disclosure would alert (e)(4)(H) and (f)(4), which are dependent those individuals to the fact that the upon access having been granted to Federal Emergency Management Agen- records pursuant to the provisions cy has information regarding their cited in paragraph (b)(2)(ii) of this sec- criminal activities and could inform tion, enable individuals to contest those individuals of the general nature (seek amendment to) the content of of that information; this, in turn, records contained in a system of rec- would afford those individuals a better ords and require an agency to note an opportunity to take appropriate steps amended record and to provide a copy to avoid detection or apprehension for of an individual’s statement (of dis- violations of criminal and related laws. agreement with the agency’s refusal to (v) 5 U.S.C. 552a(c)(4) requires that an amend a record) to persons or other agency inform any person or other agencies to whom the record has been agency about any correction or nota- disclosed. The Federal Emergency tion of dispute made by the agency in Management Agency believes that the reasons set forth in paragraph (b)(2)(ii) accordance with 5 U.S.C. 552a(d) of any of this section are equally applicable to record that has been disclosed to the this paragraph and, accordingly, those person or agency if an accounting of reasons are hereby incorporated herein the disclosure was made. Since this by reference. provision is dependent on an individ- (iv) 5 U.S.C. 552a(c)(3) requires that ual’s having been provided an oppor- an agency make accountings of disclo- tunity to contest (seek amendment to) sures of records available to individ- records pertaining to him/her, and uals named in the records at their re- since the above-listed system of quest; such accountings must state the records is proposed to be exempt from date, nature and purpose of each disclo- those provisions of 5 U.S.C. 552a relat- sure of a record and the name and ad- ing to amendments of records as indi- dress of the recipient. The Federal cated in paragraph (b)(2)(iii) of this Emergency Management Agency be- section, the Federal Emergency Man- lieves that application of this provision agement Agency believes that this pro- to the above-listed system of records vision should not be applicable to the would impair the ability of other law above system of records. enforcement agencies to make effective (vi) 5 U.S.C. 552a(e)(4)(I) requires that use of information provided by the Fed- an agency publish a public notice list- eral Emergency Management Agency ing the categories of sources for infor- in connection with the investigation, mation contained in a system of rec- detection and apprehension of violators ords. The categories of sources of this of the criminal laws enforced by those system of records have been published other law enforcement agencies. Mak- in the FEDERAL REGISTER in broad ge- ing accountings of disclosure available neric terms in the belief that this is all to violators or possible violators would that subsection (e)(4)(I) of the Act re- alert those individuals to the fact that quires. In the event, however, that this another agency is conducting an inves- subsection should be interpreted to re- tigation into their criminal activities, quire more detail as to the identity of and this could reveal the geographic location of the other agency’s investiga- sources of the records in this system, tion, the nature and purpose of that in- exemption from this provision is nec- vestigation, and the dates on which essary in order to protect the confiden- that investigation was active. Viola- tiality of the sources of criminal and tors possessing such knowledge would other law enforcement information. thereby be able to take appropriate Such exemption is further necessary to measures to avoid detection or appre- protect the privacy and physical safety hension by altering their operations, of witnesses and informants. by transferring their criminal activi- (vii) 5 U.S.C. 552a(e)(1) requires that ties to other geographic areas or by de- an agency maintain in its records only stroying or concealing evidence which such information about an individual would form the basis for their arrest. as is relevant and necessary to accom- In addition, providing violators with plish a purpose of the agency required

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to be accomplished by statute or execu- would impair the ability of the Federal tive order. The term maintain as de- Emergency Management Agency to fined in 5 U.S.C. 552a(a)(3) includes conduct investigations and to identify ‘‘collect’’ and ‘‘disseminate.’’ At the or detect violators of criminal or re- time that information is collected by lated laws for the following reasons: the Federal Emergency Management (A) Most information collected about Agency, there is often insufficient time an individual under criminal investiga- to determine whether the information tions is obtained from third parties is relevant and necessary to accom- such as witnesses and informers, and it plish a purpose of the Federal Emer- is usually not feasible to rely upon the gency Management Agency; in many subject of the investigation as a source cases information collected may not be for information regarding his/her immediately susceptible to a deter- criminal activities, (B) an attempt to mination of whether the information is obtain information from the subject of relevant and necessary, particularly in a criminal investigation will often the early stages of an investigation, alert that individual to the existence of and in many cases, information which an investigation, thereby affording the initially appears to be irrelevant or un- individual an opportunity to attempt necessary may, upon further evalua- to conceal his/her criminal activities tion or upon continuation of the inves- so as to avoid apprehension, (C) in cer- tigation, prove to have particular rel- tain instances, the subject of a crimi- evance to an enforcement program of nal investigation is not required to the Federal Emergency Management supply information to criminal inves- Agency. Further, not all violations of tigators as a matter of legal duty, and law discovered during a criminal inves- (D) during criminal investigations it is tigation fall within the investigative jurisdiction of the Federal Emergency often a matter of sound investigative Management Agency; in order to pro- procedures to obtain information from mote effective law enforcement, it a variety of sources in order to verify often becomes necessary and desirable information already obtained. to disseminate information pertaining (ix) 5 U.S.C. 552a(e)(3) requires that to such violations to other law enforce- an agency inform each individual ment agencies which have jurisdiction whom it asks to supply information, ei- over the offense to which the informa- ther on the form which the agency uses tion relates. The Federal Emergency to collect the information or on a sepa- Management Agency should not be rate form which can be retained by the placed in a position of having to ignore individual, with the following informa- information relating to violations of tion: The authority which authorizes law not within its jurisdiction when the solicitation of the information and that information comes to the atten- whether disclosure of such information tion of the Federal Emergency Man- is mandatory or voluntary; the prin- agement Agency through the conduct cipal purposes for which the informa- of a lawful FEMA investigation. The tion is intended to be used; the routine Federal Emergency Management Agen- uses which may be made of the infor- cy, therefore, believes that it is appro- mation; and the effects on the indi- priate to exempt the above-listed sys- vidual of not providing all or part of tem of records from the provisions of 5 the requested information. The Federal U.S.C. 552a(e)(1). Emergency Management Agency be- (viii) 5 U.S.C. 552a(e)(2) requires that lieves that the above-listed system of an agency collect information to the records should be exempted from this greatest extent practicable directly provision in order to avoid adverse ef- from the subject individual when the fects on its ability to identify or detect information may result in adverse de- violators of criminal or related laws. In terminations about an individual’s many cases, information is obtained by rights, benefits, and privileges under confidential sources, other informers Federal programs. The Federal Emer- or undercover law enforcement officers gency Management Agency believes under circumstances where it is nec- that application of this provision to essary that the true purpose of their the above-listed system of records actions be kept secret so as to avoid

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alerting the subject of the investiga- termine accuracy, relevance, timeli- tion or his/her associates that a crimi- ness or completeness prior to collec- nal investigation is in process. Fur- tion of the information; in dissemi- ther, if it became known that the un- nating information to other law en- dercover officer was assisting in a forcement agencies it is often not pos- criminal investigation, that officer’s sible to determine accuracy, relevance, life or physical safety could be endan- timeliness or completeness prior to dis- gered through reprisal, and, under such semination because the disseminating circumstances it may not be possible agency may not have the expertise to continue to utilize that officer in with which to make such determina- the investigation. In many cases, indi- tions. Further, information which may viduals, for personal reasons, would initially appear to be inaccurate, irrel- feel inhibited in talking to a person evant, untimely or incomplete may, representing a criminal law enforce- when gathered, grouped, and evaluated ment agency but would be willing to with other available information, be- talk to a confidential source or under- come more pertinent as an investiga- cover officer who they believe is not in- tion progresses. In addition, applica- volved in law enforcement activities. tion of this provision could seriously In addition, providing a source of infor- impede criminal investigators and in- mation with written evidence that he telligence analysts in the exercise of was a source, as required by this provi- their judgment in reporting on results sion, could increase the likelihood that obtained during criminal investiga- the source of information would be the tions. The Federal Emergency Manage- subject of retaliatory action by the ment Agency believes that it is appro- subject of the investigation. Further, priate to exempt the above-listed sys- application of this provision could re- tem of records from the provisions of 5 sult in an unwarranted invasion of the U.S.C. 552a(e)(5). personal privacy of the subject of the (xi) 5 U.S.C. 552a(e)(8) requires that criminal investigation, particularly an agency make reasonable effort to where further investigation would reserve notice on an individual when any sult in a finding that the subject was record on the individual is made avail- not involved in any criminal activity. able to any person under compulsory (x) 5 U.S.C. 552a(e)(5) requires that an legal process when such process be- agency maintain all records used by comes a matter of public record. The the agency in making any determina- Federal Emergency Management Agen- tion about any individual with such ac- cy believes that the above-listed sys- curacy, relevance, timeliness and com- tem of records should be exempt from pleteness as is reasonably necessary to this provision in order to avoid reveal- assure fairness to the individual in the ing investigative techniques and proce- determination. Since 5 U.S.C. 552a(a)(3) dures outlined in those records and in defines ‘‘maintain’’ to include ‘‘col- order to prevent revelation of the ex- lect’’ and ‘‘disseminate,’’ application of istence on an on-going investigation this provision to the above-listed sys- where there is a need to keep the exist- tem of records would hinder the initial ence of the investigation secret. collection of any information which (xii) 5 U.S.C. 552a(g) provides civil could not, at the moment of collection, remedies to an individual for an agen- be determined to be accurate, relevant, cy’s refusal to amend a record or to timely and complete. Similarly, appli- make a review of a request for amend- cation of this provision would seriously ment; for an agency’s refusal to grant restrict the necessary flow of informa- access to a record; for an agency’s fail- tion from the Federal Emergency Man- ure to maintain accurate, relevant, agement Agency to other law enforce- timely and complete records which are ment agencies when a FEMA investiga- used to make a determination which is tion revealed information pertaining to adverse to the individual; and for an a violation of law which was under in- agency’s failure to comply with any vestigative jurisdiction of another other provision of 5 U.S.C. 552a in such agency. In collecting information dur- a way as to have an adverse effect on ing the course of a criminal investiga- an individual. The Federal Emergency tion, it is not possible or feasible to de- Management Agency believes that the

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above-listed system of records should such records in the following systems be exempted from this provision to the would be exempt: extent that the civil remedies provided Claims (litigation) (FEMA/GC–1)—Limited therein may relate to provisions of 5 Access U.S.C. 552a from which the above-listed FEMA Enforcement (Compliance) (FEMA/ system of records is proposed to be ex- GC–2)—Limited Access empt. Since the provisions of 5 U.S.C. General Investigative Files (FEMA/IG–1)— 552a enumerated in paragraphs (b)(2)(i) Limited Access through (xi) of this section are pro- Security Management Information System posed to be inapplicable to the above- (FEMA/SEC–1)—Limited Access listed systems of records for the rea- (b) Exempt under 5 U.S.C. 552a(k)(2) sons stated therein, there should be no from the requirements of 5 U.S.C. 552a corresponding civil remedies for failure (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), to comply with the requirements of and (f). The Federal Emergency Man- those provisions to which the exemp- agement Agency will not deny individ- tion is proposed to apply. Further, the uals access to information which has Federal Emergency Management Agen- been used to deny them a right, privi- cy believes that application of this pro- lege, or benefit to which they would vision to the above-listed system of otherwise be entitled. records would adversely affect its abil- (1) Exempt systems. The following sys- ity to conduct criminal investigations tems of records, which contain infor- by exposing to civil court action every mation of the type described in 5 U.S.C. stage of the criminal investigative 552a(k)(2), shall be exempt from the process in which information is com- provisions of 5 U.S.C. 552a(k)(2) listed piled or used in order to identify, de- in paragraph (b) of this section. tect, or otherwise investigate persons suspected or known to be engaged in Claims (litigation) (FEMA/GC–1)—Limited criminal conduct. Access (xiii) Individuals may not have ac- FEMA Enforcement (Compliance) (FEMA/ GC–2)—Limited Access cess to another agency’s records, which General Investigative Files (FEMA/IG–1)— are contained in files maintained by Limited Access the Federal Emergency Management Equal Employment Opportunity Complaints Agency, when that other agency’s reg- of Discrimination Files (FEMA/PER–2)— ulations provide that such records are Limited Access subject to general exemption under 5 (2) Reasons for exemptions. (i) 5 U.S.C. U.S.C. 552a(j). If such exempt records 552a (e)(4)(G) and (f)(1) enable individ- are within a request for access, FEMA uals to be notified whether a system of will advise the individual of their ex- records contains records pertaining to istence and of the name and address of them. The Federal Emergency Manage- the source agency. For any further in- ment Agency believes that application formation concerning the record and of these provisions to the above-listed the exemption, the individual must systems of records would impair the contact that source agency. ability of FEMA to successfully com- [45 FR 64580, Sept. 30, 1980] plete investigations and inquiries of suspected violators of civil and crimi- § 6.87 Specific exemptions. nal laws and regulations under its ju- (a) Exempt under 5 U.S.C. 552a(k)(1). risdiction. In many cases investiga- The Director, Federal Emergency Man- tions and inquiries into violations of agement Agency has determined that civil and criminal laws and regulations certain systems of records may be ex- involve complex and continuing pat- empt from the requirements of (c)(3) terns of behavior. Individuals, if in- and (d) pursuant to 5 U.S.C. 552a(k)(1) formed, that they have been identified to the extent that the system contains as suspected violators of civil or crimi- any information properly classified nal laws and regulations, would have under Executive Order 12356 or any sub- an opportunity to take measures to sequent Executive order and which are prevent detection of illegal action so as required to be kept secret in the inter- to avoid prosecution or the imposition est of national defense or foreign pol- of civil sanctions. They would also be icy. To the extent that this occurs, able to learn the nature and location of

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the investigation or inquiry, the type would reveal the identity of the in- of surveillance being utilized, and they former either through the process of would be able to transmit this knowl- elimination or by virtue of the nature edge to co-conspirators. Finally, viola- of the information supplied. If inform- tors might be given the opportunity to ers cannot be assured that their identi- destroy evidence needed to prove the ties (as sources for information) will violation under investigation or in- remain confidential, they would be quiry. very reluctant in the future to provide (ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and information pertaining to violations of (f)(2), (3) and (5) enable individuals to criminal and civil laws and regula- gain access to records pertaining to tions, and this would seriously com- them. The Federal Emergency Manage- promise the ability of the Federal ment Agency believes that application Emergency Management Agency to of these provisions to the above-listed carry out its mission. Further, applica- systems of records would impair its tion of 5 U.S.C. 552a (d)(1), (e)(4)(H) and ability to complete or continue civil or (f)(2), (3) and (5) to the above-listed sys- criminal investigations and inquiries tems of records would make available and to detect violators of civil or attorney’s work product and other doc- criminal laws. Permitting access to uments which contain evaluations, rec- records contained in the above-listed ommendations, and discussions of on- systems of records would provide viola- going civil and criminal legal pro- tors with significant information con- ceedings; the availability of such docu- cerning the nature of the civil or crimi- ments could have a chilling effect on nal investigation or inquiry. Knowl- the free flow of information and ideas edge of the facts developed during an within the Federal Emergency Manage- investigation or inquiry would enable ment Agency which is vital to the violators of criminal and civil laws and agency’s predecisional deliberative regulations to learn the extent to process, could seriously prejudice the which the investigation or inquiry has agency’s or the Government’s position progressed, and this could provide in a civil or criminal litigation, and them with an opportunity to destroy could result in the disclosure of inves- evidence that would form the basis for tigatory material which should not be prosecution or the imposition of civil disclosed for the reasons stated above. sanctions. In addition, knowledge It is the belief of the Federal Emer- gained through access to investigatory gency Management Agency that, in material could alert a violator to the both civil actions and criminal pros- need to temporarily postpone commis- ecutions, due process will assure that sion of the violation or to change the individuals have a reasonable oppor- intended point where the violation is tunity to learn of the existence of, and to be committed so as to avoid detec- to challenge, investigatory records and tion or apprehension. Further, access related materials which are to be used to investigatory material would dis- in legal proceedings. close investigative techniques and pro- (iii) 5 U.S.C. 552a (d)(2), (3) and (4), cedures which, if known, could enable (e)(4)(H) and (f)(4) which are dependent violators to structure their future op- upon access having been granted to erations in such a way as to avoid de- records pursuant to the provisions tection or apprehension, thereby neu- cited in paragraph (b)(2)(ii) of this sec- tralizing investigators’ established and tion, enable individuals to contest effective investigative tools and proce- (seek amendment to) the content of dures. In addition, investigatory mate- records contained in a system of rec- rial may contain the identity of a con- ords and require an agency to note an fidential source of information or other amended record and to provide a copy informer who would not want his/her of an individual’s statement (of dis- identity to be disclosed for reasons of agreement with the agency’s refusal to personal privacy or for fear of reprisal amend a record) to persons or other at the hands of the individual about agencies to whom the record has been whom he/she supplied information. In disclosed. The Federal Emergency some cases mere disclosure of the in- Management Agency believes that the formation provided by an informer reasons set forth in paragraphs (b)(2)(i)

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of this section are equally applicable to cases information collected may not be this paragraph, and, accordingly, those immediately susceptible to a deter- reasons are hereby incorporated herein mination of whether the information is by reference. relevant and necessary, particularly in (iv) 5 U.S.C. 552a(c)(3) requires that the early stages of investigation or in- an agency make accountings of disclo- quiry, and in many cases information sures of records available to individ- which initially appears to be irrelevant uals named in the records at their re- or unnecessary may, upon further eval- quest; such accountings must state the uation or upon continuation of the in- date, nature, and purpose of each dis- vestigation or inquiry, prove to have closure of a record and the name and particular relevance to an enforcement address of the recipient. The Federal program of the Federal Emergency Emergency Management Agency be- Management Agency. Further, not all lieves that application of this provision violations of law uncovered during a to the above-listed systems of records Federal Emergency Management Agen- would impair the ability of the Federal cy inquiry fall within the civil or Emergency Management Agency and criminal jurisdiction of the Federal other law enforcement agencies to con- Emergency Management Agency; in duct investigations and inquiries into order to promote effective law enforce- civil and criminal violations under ment, it often becomes necessary and their respective jurisdictions. Making desirable to disseminate information accountings available to violators pertaining to such violations to other would alert those individuals to the law enforcement agencies which have fact that the Federal Emergency Man- jurisdiction over the offense to which agement Agency or another law en- the information relates. The Federal forcement authority is conducting an Emergency Management Agency investigation or inquiry into their ac- should not be placed in a position of tivities, and such accountings could re- having to ignore information relating veal the geographic location of the in- to violations of law not within its ju- vestigation or inquiry, the nature and risdiction when that information purpose of the investigation or inquiry comes to the attention of the Federal and the nature of the information dis- Emergency Management Agency closed, and the date on which that in- through the conduct of a lawful FEMAs vestigation or inquiry was active. Vio- civil or criminal investigation or in- lators possessing such knowledge quiry. The Federal Emergency Manage- would thereby be able to take appro- ment Agency therefore believes that it priate measures to avoid detection or is appropriate to exempt the above- apprehension by altering their oper- listed systems of records from the pro- ations, transferring their activities to visions of 5 U.S.C. 552a(e)(1). other locations or destroying or con- (c) Exempt under 5 U.S.C. 552a(k)(5). cealing evidence which would form the The Director, Federal Emergency Man- basis for prosecution or the imposition agement Agency has determined that of civil sanctions. certain systems of records are exempt (v) 5 U.S.C. 552a(e)(1) requires that an from the requirements of (c)(3) and (d) agency maintain in its records only of 5 U.S.C. 552a. such information about an individual (1) Exempt systems. The following sys- as is relevant and necessary to accom- tems of records, which contain infor- plish a purpose of the agency required mation of the type described in 5 U.S.C. to be accomplished by statute or execu- 552a(k)(5), shall be exempted from the tive order. The term maintain as de- provisions of 5 U.S.C. 552a listed in fined in 5 U.S.C. 552a(a)(3) includes paragraph (c) of this section. ‘‘collect’’ and ‘‘disseminate.’’ At the time that information is collected by Claims (litigation) (FEMA/GC–1)—Limited Access the Federal Emergency Management FEMA Enforcement (Compliance) (FEMA/ Agency there is often insufficient time GC–2)—Limited Access to determine whether the information General Investigative Files (FEMA/IG–2)— is relevant and necessary to accom- Limited Access plish a purpose of the Federal Emer- Security Management Information Systems gency Management Agency; in many (FEMA/SEC–1)—Limited Access

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(2) Reasons for exemptions. All infor- PART 7—NONDISCRIMINATION IN mation about individuals in these FEDERALLY-ASSISTED PROGRAMS records that meet the criteria stated in (FEMA REG. 5) 5 U.S.C. 552a(k)(5) is exempt from the requirements of 5 U.S.C. 552a (c)(3) and Subpart A—Nondiscrimination in FEMA (d). These provisions of the Privacy Act Programs—General relate to making accountings of disclosure available to the subject and access Sec. to and amendment of records. These 7.1 Purpose. 7.2 Definitions. exemptions are claimed because the 7.3 Application of this regulation. system of records entitled, FEMA/SEC– 7.4 Further application of this regulation. 1, Security Management Information 7.5 Specific discriminatory actions prohib- System, contains investigatory mate- ited. rial compiled solely for the purpose of 7.6 Life, health, and safety. determining suitability, eligibility, or 7.7 Assurances required. qualifications for access to classified 7.8 Elementary and secondary schools. 7.9 Assurances from institutions. information or classified Federal con- 7.10 Compliance information. tracts, but only to the extent that the 7.11 Conduct of investigations. disclosure would reveal the identity of 7.12 Procedure for effecting compliance. a source who furnished information to 7.13 Hearings. the Government under an express 7.14 Decisions and notices. promise or, prior to September 27, 1975, 7.15 Judicial review. 7.16 Effect on other regulations; forms and under an implied promise that the instructions. identity of the source would be held in confidence. During the litigation proc- Subparts B–D [Reserved] ess and investigations, it is possible that certain records from the system of Subpart E—Nondiscrimination on the Basis records entitled, FEMA/SEC–1, Secu- of Age in FEMA Program Activities Re- rity Management System may be nec- ceiving Federal Financial Assistance essary and relevant to the litigation or GENERAL investigation and included in these sys- 7.910 What is the purpose of the Age Dis- tems of records. To the extent that this crimination Act of 1975? occurs, the Director, FEMA, has deter- 7.911 What is the purpose of FEMA’s age mined that the records would also be discrimination regulation? exempted from subsections (c)(3) and 7.912 To what programs does this regulation (d) pursuant to 5 U.S.C. 552a(k)(5) to apply? protect such records. A determination 7.913 Definition of terms used in this regulation. will be made at the time of the request for a record concerning whether spe- STANDARDS FOR DETERMINING AGE cific information would reveal the DISCRIMINATION identity of a source. This exemption is 7.920 Rules against age discrimination. required in order to protect the con- 7.921 Exceptions to the rules against age fidentiality of the sources of informa- discrimination: Normal operation or tion compiled for the purpose of deter- statutory objective of any program or ac- mining access to classified informa- tivity. 7.922 Exceptions to the rules against age tion. This confidentiality helps main- discrimination: Reasonable factors other tain the Government’s continued ac- than age. cess to information from persons who 7.923 Burden of proof for exceptions. would otherwise refuse to give it. 7.924 Affirmative action by recipient. 7.925 Special benefits for children and the [45 FR 64580, Sept. 30, 1980, as amended at 47 elderly. FR 54816, Dec. 6, 1982; 52 FR 5114, Feb. 19, 7.926 Age distinctions contained in FEMA 1987] regulations.

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DUTIES OF FEMA RECIPIENTS tion has the principal responsibility 7.930 General responsibilities. within the agency for the administra- 7.931 Notice to subrecipients and bene- tion of the law extending such assist- ficiaries. ance. 7.932 Assurance of compliance and recipient (b) The term United States means the assessment of age distinctions. 7.933 Information requirement. States of the United States, the Dis- trict of Columbia, Puerto Rico, the INVESTIGATION, CONCILIATION, AND Virgin Islands, American Samoa, ENFORCEMENT PROCEDURES Guam, Wake Island, the Canal Zone, 7.940 Compliance reviews. and the territories and possessions of 7.941 Complaints. the United States, and the term State 7.942 Mediation. means any one of the foregoing. 7.943 Investigation. 7.944 Prohibition against intimidation or (c) The term Federal financial assist- retaliation. ance includes (1) grants and loans of 7.945 Compliance procedure. Federal funds, (2) the grant or donation 7.946 Hearings, decisions, post-termination of Federal property and interests in proceedings. property, (3) the detail of Federal per- 7.947 Remedial action by recipient. sonnel, (4) the sale and lease of, and the 7.948 Alternate funds disbursal procedure. 7.949 Exhaustion of administrative rem- permission to use (on other than a cas- edies. ual or transient basis), Federal property or any interest in such property SOURCE: 30 FR 321, Jan. 9, 1965, unless otherwise noted. Redesignated at 45 FR 44575, without consideration or at a nominal July 1, 1980. consideration, or at a consideration which is reduced for the purpose of as- Subpart A—Nondiscrimination in sisting the recipient, or in recognition of the public interest to be served by FEMA Programs—General such sale or lease to the recipient, and (5) any Federal agreement, arrange- AUTHORITY: FEMA Reg. 5 issued under sec. ment, or other contract which has as 602, 78 Stat. 252; 42 U.S.C. 2000 d–1; 42 U.S.C. one of its purposes the provision of as- 1855–1885g; 50 U.S.C. 404. sistance. SOURCE: 30 FR 321, Jan. 9, 1965, unless oth- (d) The term program includes any erwise noted. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 program, project, or activity for the FR 23078, June 6, 1990. provision of services, financial aid, or other benefits to individuals (including § 7.1 Purpose. education or training, health, welfare, The purpose of this regulation is to rehabilitation, housing, or other serv- effectuate the provisions of title VI of ices, whether provided through employ- the Civil Rights Act of 1964 (hereafter ees of the recipient of Federal financial referred to as the ‘‘Act’’) to the end assistance or provided by others that no person in the United States through contracts or other arrange- shall, on the ground of race, color, or ments with the recipient, and including national origin, be excluded from par- work opportunities and cash or loan or ticipation in, be denied the benefits of, other assistance to individuals), or for or be otherwise subjected to discrimi- the provision of facilities for fur- nation under any program or activity nishing services, financial aid or other receiving Federal financial assistance benefits to individuals. The services, fi- from the Federal Emergency Manage- nancial aid, or other benefits provided ment Agency. under a program receiving Federal financial assistance shall be deemed to § 7.2 Definitions. include any services, financial aid, or As used in this regulation: other benefits provided with the aid of (a) The term responsible agency official Federal financial assistance or with with respect to any program receiving the aid of any non-Federal funds, prop- Federal financial assistance means the erty, or other resources required to be Director of the Federal Emergency expended or made available for the pro- Management Agency or other official gram to meet matching requirements of the agency who by law or by delega- or other conditions which must be met

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in order to receive the Federal finan- § 7.4 Further application of this regu- cial assistance, and to include any lation. services, financial aid, or other bene- This regulation applies to any profits provided in or through a facility gram for which Federal financial as- provided with the aid of Federal finan- sistance is authorized under a law ad- cial assistance or such non-Federal re- ministered by the Federal Emergency sources. Management Agency. It applies to (e) The term facility includes all or money paid, property transferred, or any portion of structure, equipment, or other Federal financial assistance ex- other real or personal property or intended under any such program after terests therein, and the provision of fa- the effective date of the regulation cilities includes the construction, ex- pursuant to an application approved pansion, renovation, remodeling, alter- prior to such effective date. This regu- ation or acquisition of facilities. lation does not apply to (a) any Federal (f) The term recipient means any financial assistance by way of insur- State, political subdivision of any ance or guaranty contracts, (b) money State, or instrumentality of any State paid, property transferred, or other as- or political subdivision, any public or sistance extended under any such pro- private agency, institution, or organi- gram before the effective date of this zation, or other entity, or any indi- regulation, (c) any assistance to any vidual, in any State, to whom Federal individual who is the ultimate beneficiary under any such program, or (d) financial assistance is extended, di- any employment practice, under such rectly or through another recipient, for program, of any employer, employment any program, including any successor, agency, or labor organization. assign, or transferee thereof, but such term does not include any ultimate (Reorganization Plan No. 3 of 1978, E.O. 12127 beneficiary under any such program. and E.O. 12148) (g) The term primary recipient means [30 FR 321, Jan. 9, 1965. Redesignated at 45 any recipient which is authorized or re- FR 44575, July 1, 1980, as amended at 48 FR quired to extend Federal financial as- 44543, Sept. 29, 1983] sistance to another recipient for the purpose of carrying out a program. § 7.5 Specific discriminatory actions prohibited. (h) The term applicant means one who submits an application, request, or (a) A recipient under any program to plan required to be approved by a re- which this regulation applies may not, sponsible agency official, or by a pri- directly or through contractual or mary recipient, as a condition to eligi- other arrangements, on ground of race, bility for Federal financial assistance, color, or national origin: and the term application means such an (1) Deny any individual any service, application, request, or plan. financial aid, or other benefit provided under the program; § 7.3 Application of this regulation. (2) Provide any service, financial aid, or other benefit to an individual which No person in the United States shall, is different, or is provided in a different on the ground of race, color, or na- manner, from that provided to others tional origin, be excluded from partici- under the program; pation in, be denied the benefits of, or (3) Subject an individual to segrega- be otherwise subjected to discrimination or separate treatment in any mat- tion by those receiving assistance ter related to his receipt of any service, under the ‘‘Federal Disaster Assist- financial aid, or other benefit under ance’’ program (Pub. L. 81–875; 42 the program; U.S.C. 1855–1855g), or under the ‘‘In- (4) Restrict an individual in any way terim Emergency Management of Re- in the enjoyment of any advantage or sources’’ program (section 103 of the privilege enjoyed by others receiving National Security Act of 1947; Pub. L. any service, financial aid, or other ben- 80–253, as amended; 50 U.S.C. 404). efit under the program;

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(5) Treat an individual differently § 7.7 Assurances required. from others in determining whether he Every application for Federal finan- satisfies any admission, enrollment, cial assistance to carry out a program quota, eligibility, membership or other to which this regulation applies, and requirement or condition which indi- every application for Federal financial viduals must meet in order to be pro- assistance to provide a facility shall, as vided any service, financial aid, or a condition to its approval and the ex- other benefit provided under the pro- tension of any Federal financial assist- gram; ance pursuant to the application, con- (6) Deny an individual an opportunity tain or be accompanied by an assur- to participate in the program through ance that the program will be con- the provision of services or otherwise ducted or the facility operated in com- or afford him an opportunity to do so pliance with all requirements imposed which is different from that afforded by or pursuant to this regulation. In others under the program. the case of an application for Federal (b) A recipient, in determining the financial assistance to provide real types of services, financial aid, or other property or structures thereon, the as- benefits, or facilities which will be pro- surance shall obligate the recipient, or, vided under any such program, or the in the case of a subsequent transfer, class of individuals to whom, or the sit- the transferee, for the period during uations in which, such services, finan- which the real property or structures cial aid, other benefits, or facilities are used for a purpose for which the will be provided under any such pro- Federal financial assistance is ex- gram, or the class of individuals to be tended or for another purpose involving afforded an opportunity to participate the provision of similar services or in any such program, may not, directly benefits. In the case of personal prop- or through contractual or other ar- erty the assurance shall obligate the rangements, utilize criteria or methods recipient for the period during which of administration which have the effect he retains ownership or possession of of subjecting individuals to discrimina- the property. In all other cases the as- tion because of their race, color, or na- surance shall obligate the recipient for tional origin, or have the effect of de- the period during which Federal finan- feating or substantially impairing ac- cial assistance is extended pursuant to the application. The responsible agen- complishment of the objectives of the cy official shall specify the form of the program as respect individuals of a par- foregoing assurances for each program, ticular race, color, or national origin. and the extent to which like assur- (c) As used in this section the serv- ances will be required of subgrantee, ices, financial aid, or other benefits contractors and subcontractors, trans- provided under a program receiving ferees, successors in interest, and other Federal financial assistance shall be participants in the program. Any such deemed to include any service, finan- assurance shall include provisions cial aid, or other benefit provided in or which give the United States a right to through a facility provided with the seek its judicial enforcement. aid of Federal financial assistance. (d) The enumeration of specific forms § 7.8 Elementary and secondary of prohibited discrimination in this schools. section does not limit the generality of The requirements of section 7 with the prohibition in section 4. respect to any elementary or secondary school or school system shall be § 7.6 Life, health, and safety. deemed to be satisfied if such school or Notwithstanding the provisions of school system (a) is subject to a final section 5, a recipient of Federal finan- order of a court of the United States cial assistance shall not be deemed to for the desegregation of such school or have failed to comply with section 3, if school system, and provides an assur- immediate provision of a service or ance that it will comply with such other benefit to an individual is nec- order, including any future modifica- essary to prevent his death or serious tion of such order, or (b) submits a plan impairment of his health or safety. for the desegregation of such school or

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school system which the United States § 7.10 Compliance information. Commissioner of Education determines (a) Cooperation and assistance. The re- is adequate to accomplish the purpose sponsible official in the Federal Emer- of the Act and this regulation, and pro- gency Management Agency shall to the vides reasonable assurance that it will fullest extent practicable seek the co- carry out such plans; in any case of operation of recipients in obtaining continuing Federal financial assistance compliance with this regulation and the responsible agency official may re- shall provide assistance and guidance serve the right to redetermine, after to recipients to help them comply vol- such period as may be specified by him, untarily with this regulation. the adequacy of the plan to accomplish (b) Compliance reports. Each recipient the purposes of the Act and this regula- shall keep such records and submit to tion. In any case to which a final order the responsible agency official or his of a court of the United States for the designee timely, complete, and accu- desegregation of such school or school rate compliance reports at such times, system is entered after submission of and in such form and containing such information, as the responsible agency such a plan, such plan shall be revised official or his designee may determine to conform to such final order, includ- to be necessary to enable him to ascer- ing any future modification of such tain whether the recipient has com- order. plied or is complying with this regulation. In the case of any program under § 7.9 Assurances from institutions. which a primary recipient extends Fed- (a) In the case of any application for eral financial assistance to any other Federal financial assistance to an in- recipient, such other recipient shall stitution of higher education, the as- also submit such compliance reports to surance required by section 7 shall ex- the primary recipient as may be nec- tend to admission practices and to all essary to enable the primary recipient other practices relating to the treat- to carry out its obligations under this ment of students. regulation. (b) The assurances required with re- (c) Access to sources of information. Each recipient shall permit access by spect to an institution of higher edu- the responsible agency official or his cation, hospital, or any other institu- designee during normal business hours tion, insofar as the assurance relates to to such of its books, records, accounts, the institution’s practices with respect and other sources of information, and to admission or other treatment of in- its facilities as may be pertinent to as- dividuals as students, patients, or cli- certain compliance with this regula- ents of the institutions or to the oppor- tion. Where any information required tunity to participate in the provision of a recipient is in the exclusive posses- of services or other benefits to such in- sion of any other agency, institution or dividuals, shall be applicable to the en- person and this agency, institution or tire institution unless the applicant es- person shall fail or refuse to furnish tablishes, to the satisfaction of the Di- this information, the recipient shall so rector of the Federal Emergency Man- certify in its report and shall set forth agement Agency that the institution’s what efforts it has made to obtain the practices in designated parts or pro- information. grams of the institution will in no way (d) Information to beneficiaries and affect its practices in the program of participants. Each recipient shall make the institution for which Federal finan- available to participants, beneficiaries, cial assistance is sought, or the bene- and other interested persons such in- ficiaries of or participants in such pro- formation regarding the provisions of gram. If in any such case the assist- this regulation and its applicability to the program under which the recipient ance sought is for the construction of a receives Federal financial assistance, facility or part of a facility, the assur- and make such information available ance shall in any event extend to the to them in such manner, as the respon- entire facility and to facilities oper- sible agency official finds necessary to ated in connection therewith. apprise such persons of the protection

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against discrimination assured them shall intimidate, threaten, coerce, or by the Act and this regulation. discriminate against any individual for the purpose of interfering with any § 7.11 Conduct of investigations. right or privilege secured by section 601 (a) Periodic compliance reviews. The re- of the Act or this regulation, or be- sponsible agency official or his des- cause he has made a complaint, testi- ignee shall from time to time review fied, assisted, or participated in any the practices of recipients to determine manner in an investigation, pro- whether they are complying with this ceeding, or hearing under this regula- regulation. tion. The identity of complainants (b) Complaints. Any person who be- shall be kept confidential except to the lieves himself or any specific class of extent necessary to carry out the pur- individuals to be subjected to discrimi- poses of this regulation, including the nation prohibited by this regulation conduct of any investigation, hearing, may by himself or by a representative or judicial proceeding arising there- file a written complaint with the Na- under. tional Headquarters or any Regional [30 FR 321, Jan. 9, 1965. Redesignated at 45 Office of the Federal Emergency Man- FR 44575, July 1, 1980, and further redesig- agement Agency. A complaint must be nated at 55 FR 23078, June 6, 1990, as amended filed not later than 180 days from the at 64 FR 38309, July 16, 1999] date of the alleged discrimination, unless the time for filing is extended by § 7.12 Procedure for effecting compli- the responsible agency official or his ance. designee. (a) General. If there appears to be a (c) Investigations. The responsible failure or threatened failure to comply agency official or his designee will with this regulation, and if the non- make a prompt investigation whenever compliance or threatened noncompli- a compliance review, report, com- ance cannot be corrected by informal plaint, or any other information indi- means, compliance with this regulation cates a possible failure to comply with may be effected by the suspension or this regulation. The investigation termination of or refusal to grant or to should include, where appropriate, a re- continue Federal financial assistance view of the pertinent practices and or by any other means authorized by policies of the recipient, the cir- law. Such other means may include, cumstances under which the possible but are not limited to, (1) a reference noncompliance with this regulation oc- to the Department of Justice with a curred, and other factors relevant to a recommendation that appropriate pro- determination as to whether the recipi- ceedings be brought to enforce any ent has failed to comply with this regu- rights of the United States under any lation. law of the United States (including (d) Resolution of matters. (1) If an in- other titles of the Act), or any assur- vestigation pursuant to paragraph (c) ance or other contractual undertaking, of this section indicates a failure to and (2) any applicable proceeding under comply with this regulation, the restate or local law. sponsible agency official or his des- (b) Noncompliance with section 7. If an ignee will so inform the recipient and applicant fails or refuses to furnish an the matter will be resolved by informal assurance required under section 7 or means whenever possible. If it has been otherwise fails or refuses to comply determined that the matter cannot be with a requirement imposed by or pur- resolved by informal means, action will suant to that section Federal financial be taken as provided for in section 12. assistance may be refused in accord- (2) If an investigation does not war- ance with the procedures of paragraph rant action pursuant to paragraph (c) of this section. The agency shall not (d)(1) of this section the responsible be required to provide assistance in agency official or his designee will so such a case during the pendency of the inform the recipient and the complain- administrative proceedings under such ant, if any, in writing. paragraph except that the agency shall (e) Intimidatory or retaliatory acts pro- continue assistance during the pend- hibited. No recipient or other person ency of such proceedings where such

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assistance is due and payable pursuant corrective action as may be appro- to an application thereof approved priate. prior to the effective date of this regulation. § 7.13 Hearings. (c) Termination of or refusal to grant or (a) Opportunity for hearing. Whenever to continue Federal financial assistance. an opportunity for a hearing is re- No order suspending, terminating or quired by section 12(c), reasonable no- refusing to grant or continue Federal tice shall be given by registered or cer- financial assistance shall become effec- tified mail, return receipt requested, to tive until (1) the responsible agency of- the affected applicant or recipient. ficial has advised the applicant or re- This notice shall advise the applicant cipient of his failure to comply and has or recipient of the action proposed to determined that compliance cannot be be taken, the specific provision under secured by voluntary means, (2) there which the proposed action against it is has been an express finding on the to be taken, and the matters of fact or record, after opportunity for hearing, law asserted as the basis for this ac- of a failure by the applicant or recipi- tion, and either (1) fix a date not less ent to comply with a requirement im- than 20 days after the date of such no- posed by or pursuant to this regula- tice within which the applicant or re- tion, (3) the action has been approved cipient may request of the responsible by the Director of the Federal Emer- agency official that the matter be gency Management Agency pursuant to section 14, and (4) the expiration of 30 scheduled for hearing or (2) advise the days after the Director has filed with applicant or recipient that the matter the committee of the House and the in question has been set down for hear- committee of the Senate having legis- ing at a stated place and time. The lative jurisdiction over the program in- time and place so fixed shall be reason- volved, a full written report of the cir- able and shall be subject to change for cumstances and the grounds for such cause. The complainant, if any, shall action. Any action to suspend or termi- be advised of the time and place of the nate or to refuse to grant or to con- hearing. An applicant or recipient may tinue Federal financial assistance shall waive a hearing and submit written in- be limited to the particular political formation and argument for the record. entity, or part thereof, or other appli- The failure of an applicant or recipient cant or recipient as to whom such a to request a hearing under this sub- finding has been made and shall be lim- section or to appear at a hearing for ited in its effect to the particular pro- which a date has been set shall be gram, or part thereof, in which such deemed to be a waiver of the right to a noncompliance has been so found. hearing under section 602 of the Act (d) Other means authorized by law. No and section 12(c) of this regulation and action to effect compliance by any consent to the making of a decision on other means authorized by law shall be the basis of such information as is taken until (1) the responsible agency available. official has determined that compli- (b) Time and place of hearing. Hear- ance cannot be secured by voluntary ings shall be held at the National Head- means, (2) the action has been approved quarters of the Federal Emergency by the Director of the Federal Emer- Management Agency in Washington, gency Management Agency, (3) the re- DC, at a time fixed by the responsible cipient or other person has been noti- agency official unless he determines fied of its failure to comply and of the that the convenience of the applicant action to be taken to effect compli- or recipient or of the agency requires ance, and (4) the expiration of at least that another place be selected. Hear- 10 days from the mailing of such notice ings shall be held before the respon- to the recipient or other person. Dur- sible agency official or, at his discre- ing this period of at least 10 days additional efforts shall be made to persuade tion, before a hearing examiner des- the recipient or other person to comply ignated in accordance with section 11 with the regulation and to take such of the Administrative Procedure Act.

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(c) Right to counsel. In all proceedings Agency may, by agreement with such under this section, the applicant or re- other departments or agencies where cipient and the agency shall have the applicable, provide for the conduct of right to be represented by counsel. consolidated or joint hearings, and for (d) Procedures, evidence, and record. (1) the application to such hearings of The hearing, decision, and any admin- rules of procedures not inconsistent istrative review thereof shall be con- with this regulation. Final decisions in ducted in conformity with sections 5–8 such cases, insofar as this regulation is of the Administrative Procedure Act, concerned, shall be made in accordance and in accordance with such rules of with section 14. procedure as are proper (and not inconsistent with this section) relating to § 7.14 Decisions and notices. the conduct of the hearing, giving of (a) Decision by person other than the notices subsequent to those provided responsible agency official. If the hearing for in paragraph (a) of this section, is held by a hearing examiner such taking of testimony, exhibits, argu- hearing examiner shall either make an ments and briefs, requests for findings, initial decision, if so authorized, or and other related matters. Both the certify the entire record including his agency and the applicant or recipient recommended findings and proposed de- shall be entitled to introduce all rel- cision to the responsible agency offi- evant evidence on the issues as stated cial for a final decision, and a copy of in the notice for hearing or as deter- such initial decision or certification mined by the officer conducting the shall be mailed to the applicant or re- hearing at the outset of or during the cipient. Where the initial decision is hearing. made by the hearing examiner the ap- (2) Technical rules of evidence shall plicant or recipient may within 30 days not apply to hearings conducted pursu- of the mailing of such notice of initial ant to this regulation, but rules or decision file with the responsible agen- principles designed to assure produc- cy official his exceptions to the initial tion of the most credible evidence decision, with his reasons therefor. In available and to subject testimony to the absence of exceptions, the respon- test by cross-examination shall be ap- sible agency official may on his own plied where reasonably necessary by motion within 45 days after the initial the officer conducting the hearing. The decision serve on the applicant or re- hearing officer may exclude irrelevant, cipient a notice that he will review the immaterial, or unduly repetitious evi- decision. Upon the filing of such excep- dence. All documents and other evi- tions or of such notice of review the re- dence offered or taken for the record sponsible agency official shall review shall be open to examination by the the initial decision and issue his own parties and opportunity shall be given decision thereon including the reasons to refute facts and arguments advanced therefor. In the absence of either ex- on either side of the issues. A tran- ceptions or a notice of review the ini- script shall be made of the oral evi- tial decision shall constitute the final dence except to the extent the sub- decision of the responsible agency offi- stance thereof is stipulated for the cial. record. All decisions shall be based (b) Decisions on record or review by the upon the hearing record and written responsible agency official. Whenever a findings shall be made. record is certified to the responsible (e) Consolidated or joint hearings. In agency official for decision or he re- cases in which the same or related views the decision of a hearing exam- facts are asserted to constitute non- iner pursuant to paragraph (a) of this compliance with this regulation with section, or whenever he conducts the respect to two or more programs to hearing, the applicant or recipient which this regulation applies, or non- shall be given reasonable opportunity compliance with this regulation and to file with him briefs or other written the regulations of one or more other statements of its contentions, and a Federal departments or agencies issued copy of his final decision shall be given under title VI of the Act, the Director in writing to the applicant or recipient of the Federal Emergency Management and to the complainant, if any.

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(c) Decisions on record where a hearing § 7.16 Effect on other regulations; is waived. Whenever a hearing is waived forms and instructions. pursuant to section 13(a) a decision (a) Effect on other regulations. All reg- shall be made by the responsible agen- ulations, orders, or like directions cy official on the record and a copy of heretofore issued by any officer of the such decision shall be given in writing to the applicant or recipient, and to Federal Emergency Management Agen- the complainant, if any. cy which impose requirements designed (d) Rulings required. Each decision of to prohibit any discrimination against a hearing officer or responsible agency individuals on the ground of race, official shall set forth his ruling on color, or national origin under any pro- each finding, conclusion, or exception gram to which this regulation applies, presented, and shall identify the re- and which authorize the suspension or quirement or requirements imposed by termination of or refusal to grant or to or pursuant to this regulation with continue Federal financial assistance which it is found that the applicant or to any applicant for or recipient of recipient has failed to comply. such assistance under such program for (e) Approval by Director. Any final de- failure to comply with such require- cision of a responsible agency official ments, are hereby superseded to the ex- (other than the Director of the agency) tent that such discrimination is pro- which provides for the suspension or hibited by this regulation, except that termination of, or the refusal to grant nothing in this regulation shall be or continue Federal financial assist- deemed to relieve any person of any ob- ance, or the imposition of any other ligation assumed or imposed under any sanction available under this regula- such superseded regulation, order, in- tion or the Act, shall promptly be struction, or like direction prior to the transmitted to the Director of the Fed- effective date of this regulation. Noth- eral Emergency Management Agency ing in this regulation, however, shall who may approve such decision, may be deemed to supersede Executive Or- vacate it, or remit or mitigate any ders 10925 and 11114 (including future sanction imposed. amendments thereof) and regulations (f) Content of orders. The final deci- issued thereunder, or any other regula- sion may provide for suspension or ter- tions or instructions, insofar as such mination of, or refusal to grant or con- regulations or instructions prohibit tinue Federal financial assistance, in discrimination on the ground of race, whole or in part, under the program in- color, or national origin in any pro- volved, and may contain such terms, gram or situation to which this regula- conditions, and other provisions as are tion is inapplicable, or prohibit dis- consistent with and will effectuate the crimination on any other ground. purposes of the Act and this regulation, including provisions designed to (b) Forms and instructions. Each re- assure that no Federal financial assist- sponsible agency official shall issue ance will thereafter be extended under and promptly make available to inter- such program to the applicant or re- ested persons forms and detailed in- cipient determined by such decision to structions and procedures for effec- be in default in its performance of an tuating this regulation as applied to assurance given by it pursuant to this programs to which this regulation ap- regulation, or to have otherwise failed plies and for which he is responsible. to comply with this regulation, unless (c) Supervision and coordination. The and until it corrects its noncompliance Director of the Federal Emergency and satisfies the Director of the Fed- Management Agency may from time to eral Emergency Management Agency time assign to officials of other depart- that it will fully comply with this reg- ments or agencies of the Government ulation. with the consent of such departments or agencies, responsibilities in connec- § 7.15 Judicial review. tion with the effectuation of the pur- Action taken pursuant to section 602 poses of title VI of the Act and this of the Act is subject to judicial review regulation (other than responsibility as provided in section 603 of the Act. for final decision as provided in section

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14), including the achievement of effec- § 7.912 To what programs does this tive coordination and maximum uni- regulation apply? formity within the agency and within (a) The Act and this regulation apply the Executive Branch of the Govern- to each FEMA recipient and to each ment in the application of title VI and program or activity operated by the re- this regulation to similar programs cipient which receives or benefits from and in similar situations. Federal financial assistance provided by FEMA. Subparts B–D [Reserved] (b) The Act and this regulation do not apply to: (1) An age distinction contained in Subpart E—Nondiscrimination on that part of a Federal, State or local the Basis of Age in FEMA Pro- statute or ordinance adopted by an gram Activities Receiving elected, general purpose legislative Federal Financial Assistance body which: (i) Provides any benefits or assistance to persons based on age; or AUTHORITY: Age Discrimination Act of 1975, as amended, 42 U.S.C. 26101 et seq. (45 CFR (ii) Establishes criteria for participa- part 90). tion in age-related terms; or (iii) Describes intended beneficiaries SOURCE: 55 FR 23078, June 6, 1990, unless or target groups in age-related terms. otherwise noted. (2) Any employment practice of any employer, employment agency, labor GENERAL organization, or any labor-management joint apprenticeship training pro- § 7.910 What is the purpose of the Age Discrimination Act of 1975? gram, except for any program or activity receiving Federal financial assist- The Age Discrimination Act of 1975 ance for public service employment (the ‘‘Act’’), as amended, is designed to under the Job Training Partnership prohibit discrimination on the basis of Act (29 U.S.C. 150, et seq.) age in programs or activities receiving Federal financial assistance. The Act § 7.913 Definition of terms used in this also permits federally-assisted pro- regulation. grams and activities, and recipients of As used in this regulation, the term Federal funds, to continue to use cer- Act means the Age Discrimination Act tain age distinctions and factors other of 1975 as amended (title III of Pub. L. than age which meet the requirements 94–135). of the Act and this regulation. Action means any act, activity, policy, rule, standard, or method of ad- § 7.911 What is the purpose of FEMA’s ministration; or the use of any policy, age discrimination regulation? rule, standard or method of administration. The purpose of this regulation is to Age means how old a person is, or the set out FEMA’s policies and procedures number of years from the date of a per- under the Age Discrimination Act of son’s birth. 1975 and the general governmentwide Age distinction means any action regulations, 45 CFR part 90. The Act using age or an age-related term. and the general regulations prohibit Age-related term means a word or discrimination on the basis of age in words which necessarily imply a par- programs or activities receiving Fed- ticular age or range of ages (for exam- eral financial assistance. The Act and ple, children, older persons, but not stu- the general regulations permit feder- dent). ally-assisted programs, activities, and Agency means the Federal Emergency recipients of Federal funds, to continue Management Agency. to use age distinctions and factors Director means the Director of the other than age which meet the require- Federal Emergency Management Agen- ments of the Act and its implementing cy. regulations. Federal financial assistance means any grant, entitlement, loan, cooperative

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agreement, contract (other than a pro- STANDARDS FOR DETERMINING AGE curement contract or a contract of in- DISCRIMINATION surance or guaranty), or any other arrangement by which the agency pro- § 7.920 Rules against discrimination. vides or otherwise makes available as- The rules stated in this section are sistance in the form of: limited by the exceptions contained in (a) Funds; or §§ 7.921 and 7.922 of these regulations. (b) Services or Federal personnel; or (a) General rule: No person in the (c) Real and personal property or any United States shall, on the basis of age, interest in or use of property, includ- be excluded from participation in, be ing: denied the benefits of, or be subjected (1) Transfers or leases of property for to discrimination under, any program less than fair market value or for re- or activity receiving Federal financial duced consideration; and assistance. (2) Proceeds from a subsequent trans- (b) Specific rules: A recipient may not, fer or lease of property if the Federal in any program or activity receiving share of its fair market value is not re- Federal financial assistance, directly turned to the Federal Government. or through contractual licensing, or Normal operation means the operation other arrangements, use age distinc- of a program or activity without sig- tions or take any other actions which nificant changes that would impair its have the effect, on the basis of age, of: ability to meet its objective. (1) Excluding individuals from, deny- Recipient means any State or its po- ing them the benefits of, subjecting litical subdivision, any instrumen- them to discrimination under, a pro- tality of a State or its political sub- gram or activity receiving Federal fi- division, institution, organization, or nancial assistance; or other entity, or any person to which (2) Denying or limiting individuals in Federal financial assistance is ex- their opportunity to participate in any tended, directly or through another re- program or activity receiving Federal cipient. Recipient includes any suc- financial assistance. The specific forms cessor, assignee, or transferee, but ex- of age discrimination listed in para- cludes the ultimate beneficiary of the graph (b) of this section do not nec- assistance. essarily constitute a complete list. Statutory objective means any purpose of a program or activity expressly stat- § 7.921 Exceptions to the rules against ed in any Federal statute, State stat- age discrimination: Normal oper- ute or local statute or ordinance adopt- ation or statutory objective of any ed by an elected, general purpose legis- program or activity. lative body. A recipient is permitted to take an Subrecipient means any of the entities action, otherwise prohibited by § 7.920, in the definition of ‘‘recipient’’ to if the action reasonably takes into ac- which a recipient extends or passes on count age as a factor necessary to the Federal financial assistance. A sub- normal operation of the achievement recipient is generally regarded as a re- of any statutory objective of a program cipient of Federal financial assistance or activity. An action reasonably takes and has all the duties of a recipient in into account age as a factor necessary these regulations. to the normal operation or the achieve- United States includes the States of ment of any statutory objective of a the United States, the District of Co- program or activity, if: lumbia, the Commonwealth of Puerto (a) Age is used as a measure or ap- Rico, the Virgin Islands, American proximation of one or more other char- Samoa, Guam, the Commonwealth of acteristics; and the Northern Mariana Islands, Wake Is- (b) The other characteristic(s) must land, the Canal Zone, the Trust Terri- be measured or approximated in order tory of the Pacific Islands and all other for the normal operation of the pro- territories and possessions of the gram or activity to continue, or to United States. The term ‘‘State’’ also achieve any statutory objective of the includes any one of the foregoing. program or activity; and

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(c) The other characteristic(s) can be DUTIES OF FEMA RECIPIENTS reasonably measured or approximated by the use of age; and § 7.930 General responsibilities. (d) The other characteristic(s) are Each FEMA recipient has primary re- impractical to measure directly on an sponsibility to ensure that its pro- individual basis. grams and activities are in compliance with the Act and this regulation, and § 7.922 Exceptions to the rules against shall take steps to eliminate violations age discrimination: Reasonable fac- of the Act. A recipient also has respon- tors other than age. sibility to maintain records, provide A recipient is permitted to take an information, and to afford FEMA ac- action otherwise prohibited by § 7.920 cess to its records to the extent FEMA which is based on a factor other than finds necessary to determine whether age, even though that action may have the recipient is in compliance with the a disproportionate effect on persons of Act and this regulation. different ages only if the factor bears a § 7.931 Notice to subrecipients and direct and substantial relationship to beneficiaries. the normal operation of the program or activity or to the achievement of a (a) Where a recipient passes on Fed- statutory objective. eral financial assistance from FEMA to subrecipients, the recipient shall pro- § 7.923 Burden of proof for exceptions. vide the subrecipients written notice of their obligations under the Act and The burden of proving that an age this regulation. distinction or other action falls within (b) Each recipient shall make nec- the exceptions outlined in §§ 7.921 and essary information about the Act and 7.922 is on the recipient of Federal fi- this regulation available to its pro- nancial assistance. gram beneficiaries in order to inform them about the protection against dis- § 7.924 Affirmative action by recipient. crimination provided by the Act and Even in the absence of a finding of this regulation. discrimination, a recipient may take affirmative action to overcome the ef- § 7.932 Assurance of compliance and fects of conditions that resulted in the recipient assessment of age distinctions. limited participation in the recipient’s program or activity on the basis of age. (a) Each recipient of Federal financial assistance from FEMA shall sign a § 7.925 Special benefits for children written assurance as specified by and the elderly. FEMA that it will comply with Act and If a recipient operating a program this regulation. provides special benefits to the elderly (b) Recipient assessment of age dis- or to children, such use of age distinc- tinctions. (1) As part of the compliance review under § 7.940 or complaint inves- tions shall be presumed to be necessary tigation under § 7.943, FEMA may re- to the normal operation of the pro- quire a recipient employing the equiva- gram, notwithstanding the provisions lent of fifteen or more employees to of § 7.921. complete written evaluation, in a manner specified by the responsible Agency § 7.926 Age distinctions contained in FEMA regulations. official, of any age distinction imposed in its program or activity receiving Any age distinctions contained in a Federal financial assistance from rule or regulation issued by FEMA FEMA to assess the recipient’s compli- shall be presumed to be necessary to ance with the Act. the achievement of a statutory objec- (2) Whenever an assessment indicates tive of the program to which the rule a violation of the Act and the FEMA or regulation applies, notwithstanding regulations, the recipient shall take the provisions of § 7.921. corrective action.

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§ 7.933 Information requirement. (b) FEMA will consider the date a complaint is filed to be the date upon Each recipient shall: which the complaint is sufficient to be (a) Keep records in a form acceptable processed. A complaint is deemed to FEMA and containing information ‘‘sufficient’’ when it contains particu- which FEMA determines are necessary lars (e.g., names, addresses, and tele- to ascertain whether the recipient is phone numbers of parties involved; complying with the Act and this regu- date(s) of alleged discrimination; lation. kind(s) of alleged discrimination) upon (b) Provide to FEMA, upon request, which to begin an investigation. information and reports which FEMA (c) FEMA will attempt to facilitate determines are necessary to ascertain the filing of complaints wherever pos- whether the recipient is complying sible, including taking the following with the Act and this regulation. measures: (c) Permit FEMA reasonable access (1) Accepting as a sufficient com- to the books, records, accounts, and plaint any written statement which other recipient facilities and sources of identifies the parties involved and the information to the extent FEMA deter- date the complainant first had knowl- mines is necessary to ascertain wheth- edge of the alleged violation, describes er the recipient is complying with the generally the action or practice com- Act and this regulation. plained of, and is signed by the complainant. INVESTIGATION, CONCILIATION, AND (2) Freely permitting a complainant ENFORCEMENT PROCEDURES to add information to the complaint to § 7.940 Compliance reviews. meet the requirements of a sufficient complaint. (a) FEMA may conduct compliance (3) Notifying the complainant and reviews and preaward reviews or use the recipient of their rights and obliga- other similar procedures that will per- tions under the complaint procedure, mit it to investigate and correct viola- including the right to have a represent- tions of the Act and this regulation. ative at all stages of the complaint FEMA may conduct these reviews even procedure. in the absence of a complaint against a (4) Notifying the complainant and recipient. The reviews may be as com- the recipient (or their representatives) prehensive as necessary to determine of their right to contact FEMA for in- whether a violation of the Act and this formation and assistance regarding the regulation has occurred. complaint resolution process. (b) If a compliance review or (d) FEMA will return to the com- preaward review indicates a violation plainant any complaint outside the ju- of the Act or this regulation, FEMA risdiction of this regulation, and will will attempt to achieve voluntary com- state the reason(s) why it is outside pliance with the Act. If voluntary com- the jurisdiction of this regulation. pliance cannot be achieved, FEMA will arrange for enforcement as described in § 7.942 Mediation. § 7.945. (a) FEMA will promptly refer to a mediation agency designated by the Di- § 7.941 Complaints. rector all sufficient complaints that: (a) Any person, individually or as a (1) Fall within the jurisdiction of the member of a class or on behalf of oth- Act and this regulation, unless the age ers, may file a complaint with FEMA, distinction complained of is clearly alleging discrimination prohibited by within an exception; and, the Act or these regulations occurring (2) Contain all information necessary after the date of final adoption of this for further processing. rule. A complainant shall file a com- (b) Both the complainant and the re- plaint within 180 days from the date cipient shall participate in the medi- the complainant first had knowledge of ation process to the extent necessary the alleged act of discrimination. How- to reach an agreement or for the medi- ever, for good cause showing, FEMA ator to make an informed judgment may extend this time limit. that an agreement is not possible.

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(c) If the complainant and the recipi- (4) The settlement shall not affect ent reach an agreement, the mediator the operation of any other enforcement shall prepare a written statement of effort of FEMA, including compliance the agreement and have the complain- reviews and investigation of other com- ant and the recipient sign it. The medi- plaints which may involve the recipi- ator shall send a copy of the agreement ent. to FEMA. FEMA will take no further (5) The settlement is not a finding of action on the complaint unless the discrimination against a recipient. complainant or the recipient fails to (b) Formal investigation. If FEMA can- comply with the agreement. not resolve the complaint through in- (d) The mediator shall protect the formal investigation, it will begin to confidentiality of all information obtained in the course of the mediation develop formal findings through fur- process. No mediator shall testify in ther investigation of the complaint. If any adjudicative proceeding, produce the investigation indicates a violation any document, or otherwise disclose of this regulation, FEMA will attempt any information obtained in the course to obtain voluntary compliance, it will of the mediation process without prior begin enforcement as described in approval of the head of the mediation § 7.945. agency. (e) The mediation will proceed for a § 7.944 Prohibition against intimida- maximum of 60 days after a complaint tion or retaliation. is filed with FEMA. Mediation ends if: A recipient may not engage in acts of (1) Sixty days elapse from the time intimidation or retaliation against any the complaint is filed; or person who: (2) Prior to the end of that 60 day pe- (a) Attempts to assert a right pro- riod, an agreement is reached; or tected by the Act or this regulation; or (3) Prior to the end of that 60 day pe- (b) Cooperates in any mediation, in- riod, the mediator determines that an vestigation, hearing, or other part of agreement cannot be reached. This 60 FEMA’s investigation, conciliation and day period may be extended by the mediator, with the concurrence of FEMA, enforcement process. for not more than 30 days if the medi- § 7.945 Compliance procedure. ator determines agreement will likely be reached during such extended pe- (a) FEMA may enforce the Act and riod. this regulation through: (f) The mediator shall return unre- (1) Termination of a recipient’s Fed- solved complaints to FEMA. eral financial assistance from FEMA under the program or activity involved § 7.943 Investigation. where the recipient has violated the (a) Informal investigation. (1) FEMA Act or this regulation. The determina- will investigate complaints that are tion of the recipient’s violation may be unresolved after mediation or are re- made only after a recipient has had an opened because of a violation of a me- opportunity for a hearing on the record diation agreement. before an administrative law judge. (2) As part of the initial investiga- (2) Any other means authorized by tion, FEMA will use informal fact find- law including but not limited to: ing methods, including joint or sepa- (i) Referral to the Department of Jus- rate discussion with the complainant tice for proceedings to enforce any and recipient, to establish the facts and, if possible, settle the complaint on rights of the United States or obliga- terms that are mutually agreeable to tions of the recipient created by the the parties. FEMA may seek the assist- Act or this regulation. ance of any involved state program (ii) Use of any requirement of or re- agency. ferral to any Federal, State or local (3) FEMA will put any agreement in government agency that will have the writing and have it signed by the par- effect of correcting a violation of the ties and an authorized official at Act or this regulation. FEMA.

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(b) FEMA will limit any termination program or activity FEMA finds in vio- under § 7.945(a)(1) to the particular relation of this regulation. FEMA will cipient and particular program or ac- not base any part of a deferral on a tivity or part of such program and ac- finding with respect to any program or tivity FEMA finds in violation of this activity of the recipient which does not regulation. FEMA will not base any and would not, in connection with new part of a termination on a finding with funds, receive Federal financial assist- respect to any program or activity of ance from FEMA. the recipient which does not receive Federal financial assistance from § 7.946 Hearings, decisions, post-termi- FEMA. nation proceedings. (c) FEMA will take no action under Certain FEMA procedural provisions paragraph (a) until: applicable to title VI of the Civil (1) The Director has advised the re- Rights Act of 1964 apply to FEMA en- cipient of its failure to comply with forcement of this regulation. They are the Act and this regulation and has de- found at 44 CFR 7.10 through 7.16. termined that voluntary compliance cannot be obtained. § 7.947 Remedial action by recipient. (2) Thirty days have elapsed after the Where FEMA finds a recipient has Director has sent a written report of discriminated on the basis of age, the the circumstances and grounds of the recipient shall take any remedial ac- action to the committees of the Con- tion that FEMA may require to over- gress having legislative jurisdiction come the effects of the discrimination. over the Federal program or activity If another recipient exercises control involved. The Director will file a report over the recipient that had discrimi- whenever any action is taken under nated, FEMA may require both recipi- paragraph (a). ents to take remedial action. (d) FEMA also may defer granting new Federal financial assistance from § 7.948 Alternate funds disbursal pro- FEMA to a recipient when a hearing cedure. under § 7.945(a)(1) is initiated. (a) When FEMA withholds funds from (1) New Federal financial assistance recipient under this regulation, the Di- from FEMA includes all assistance for rector may, if allowable under the stat- which FEMA requires an application or ute governing the assistance, disburse approval, including renewal or continu- the withheld funds directly to an alteration of existing activities, or author- nate recipient: Any public or nonprofit ization of new activities, during the de- private organization or agency, or ferral period. New Federal financial as- State or political subdivision of the sistance from FEMA does not include State. increases in funding as a result of (b) The Director will require any al- changed computation of formula ternate recipient to demonstrate: awards or assistance approved prior to (1) The ability to comply with this the beginning of a hearing under regulation; and § 7.945(a)(1). (2) The ability to achieve the goals of (2) FEMA will not begin a deferral the Federal statute authorizing the until the recipient has received a no- program or activity. tice of an opportunity for a hearing under § 7.945(a)(1). FEMA will not con- § 7.949 Exhaustion of administrative tinue a deferral for more than 60 days remedies. unless a hearing has begun within that (a) A complainant may file a civil ac- time or the time for beginning the tion following the exhaustion of admin- hearing has been extended by mutual istrative remedies under the Act. Ad- consent of the recipient for more than ministrative remedies are exhausted if: 30 days after the close of the hearing, (1) 180 days have elapsed since the unless the hearing results in a finding complainant filed the complaint and against the recipient. FEMA had made no finding with regard (3) FEMA will limit any deferral to to the complaint; or the particular recipient and particular (2) FEMA issues any finding in favor program or activity or part of such of the recipient.

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(b) If FEMA fails to make a finding tions affect members of the public, within 180 days or issues a finding in these policies are to be published in the favor of the recipient, FEMA shall: FEDERAL REGISTER. (1) Promptly advise the complainant (b) This regulation provides public in writing of this fact; and notification of the FEMA procedures (2) Advise the complainant of his or for processing requests for the manda- her right to bring a civil action for in- tory review of classified information junctive relief; and pursuant to section 3.4(d) of E.O. 12356. (3) Inform the complainant: [49 FR 24518, June 14, 1984, as amended at 49 (i) That the complainant may bring a FR 38119, Sept. 27, 1984; 50 FR 40006, Oct. 1, civil action only in a United States 1985] District Court for the district in which the recipient is located or transacts § 8.2 Original classification authority. business; (a) The Director, Federal Emergency (ii) That a complainant prevailing in Management Agency (FEMA), has the a civil action has the right to be authority to classify information origi- awarded the costs of the action, includ- nally as TOP SECRET, as designated ing reasonable attorney’s fees, but that by the President in the FEDERAL REG- the complainant must demand these ISTER, Vol 47, No. 91, May 11, 1982, in costs in the complaint at the time it is accordance with section 1.2(a)(2), E.O. filed. 12356. (iii) That before commencing the ac- (b) In accordance with section tion, the complainant shall give 30 1.2(d)(2), E.O. 12356, the following posi- days notice by registered mail to the tions have been delegated ORIGINAL Director, the Attorney General of the TOP SECRET CLASSIFICATION AU- United States, and the recipient; THORITY by the Director, FEMA: (iv) That the notice must state: The (1) DEPUTY DIRECTOR, FEMA alleged violation of the Act; the relief (2) ASSOCIATE DIRECTOR, NA- requested; the court in which the com- TIONAL PREPAREDNESS DIREC- plainant is bringing the action; and TORATE whether or not attorney’s fees are de- (3) DIRECTOR, OFFICE OF SECU- manded in the event the complainant RITY prevails; and (c) The positions delegated original (v) That the complainant may not Top Secret Classification Authority in bring an action if the same alleged vio- paragraph (b) of this section, are also lation of the Act by the same recipient delegated Original Secret and Con- is the subject of a pending action in fidential Classification Authority by any court (Federal or State) of the virtue of this delegation. The following United States. positions have been delegated Original Secret and Original Confidential Clas- PART 8—NATIONAL SECURITY sification Authority: (1) Associate Director, State and INFORMATION Local Programs and Support. (2) Regional Directors. Sec. 8.1 Purpose. Any further delegation of original clas- 8.2 Original classification authority. sification authority, for any classifica- 8.3 Senior FEMA official responsible for the tion level, will be accomplished only by information security program. the Director of the Federal Emergency 8.4 Mandatory declassification review pro- Management Agency. cedures. (d) The positions delegated ORIGI- AUTHORITY: Reorganization Plan No. 3 of NAL TOP SECRET CLASSIFICATION 1978, E.O. 12148 and E.O. 12356. AUTHORITY in paragraph (b) of this section, are also delegated ORIGINAL § 8.1 Purpose. SECRET and CONFIDENTIAL CLAS- (a) Section 5.3(b) of Executive Order SIFICATION AUTHORITY by virtue of (EO) 12356, ‘‘National Security Infor- this delegation. The positions dele- mation’’ requires agencies to promulgated ORIGINAL SECRET CLASSI- gate implementing policies and regula- FICATION AUTHORITY in paragraph tions. To the extent that these regula- (c) of this section, are also delegated

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ORIGINAL CONFIDENTIAL CLASSI- forth the agency’s explanation of the FICATION AUTHORITY by virtue of deficiencies of the request. this delegation. Any further delegation (d) Once a request meets the fore- of original classification authority, for going requirements for processing, it any classification level, will be accom- will be acted upon as follows: plished only by the Director of FEMA. (1) Receipt of all requests shall be ac- [49 FR 24518, June 14, 1984 as amended at 51 knowledged within ten (10) working FR 34605, Sept. 30, 1986; 53 FR 47210, Nov. 22, days. 1989; 56 FR 32328, July 16, 1991] (2) FEMA action upon a request shall be completed within sixty (60) calendar § 8.3 Senior FEMA official responsible days. for the information security program. (e) The Director of Security shall designate a FEMA component to con- The Director of Security, FEMA, has duct the declassification review. This been designated as the senior official will normally be the originating com- to direct and administer the FEMA in- ponent. The designated program or formation security program, in accord- staff office shall conduct the review ance with section 5.3(a), E.O. 12356. and forward its recommendation(s) to [49 FR 24518, June 14, 1984] the Office of Security. Information no longer requiring protection under E.O. § 8.4 Mandatory declassification re- 12356 shall be declassified and released view procedures. unless withholding is otherwise author- (a) All information classified by ized under applicable law. When infor- FEMA under E.O. 12356 or predecessor mation cannot be declassified in its en- orders shall be subject to a review for tirety, FEMA will make a reasonable declassification if such a review is re- effort to release those declassified por- quested by a United States citizen or tions of the requested information that permanent resident alien, a Federal constitute a coherent segment. If the agency or a State or local government. information may not be released in (b) Requests for declassification re- whole or part, the requestor shall be view shall be submitted to the Office of given a brief statement as to the rea- Security, Federal Emergency Manage- son for the denial, a notice of the right ment Agency, Washington, DC 20472. to appeal the determination to the Di- All requests shall be in writing and rector of FEMA and a notice that such reasonably describe the information an appeal must be filed within sixty sought with sufficient clarity to enable (60) calendar days to be considered. the appropriate FEMA component to (f) If the request requires the ren- identify the information sought. Any dering of services for which fees may be requests that do not sufficiently iden- charged under 31 U.S.C. 9701, such fees tify the information sought shall be re- may be imposed in accordance with the turned to the requestor and he or she shall be asked to clarify the request provisions of 44 CFR part 5, subpart C. and/or provide additional information. (g) The following procedures shall be (c) If within 30 days the requestor followed when denials of requests for does not respond to the agency’s re- declassification are appealed: quest for clarification or additional in- (1) The Director shall, within fifteen formation, the FEMA Office of Secu- (15) working days of receipt of the ap- rity shall notify the requestor that no peal, convene a meeting of the FEMA further action can be taken on the re- Information Security Oversight Com- quest. If the requestor’s response to the mittee (ISOC). Representation on the agency’s request for clarification and/ FEMA ISOC shall include the Director or additional information is inad- of Security or his/her representative, a equate, the Office of Security shall no- representative of the component that tify him or her that no further action denied the original request, a rep- will be taken until such time as the resentative from the Office of General agency is provided with adequate infor- Counsel, a representative from the Of- mation concerning the request. In addi- fice of External Affairs and the Chief of tion, the agency’s response will set Staff or his/her representative.

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(2) If the ISOC upholds the appeal in § 9.1 Purpose of part. its entirety, the information will be re- This regulation sets forth the policy, leased in accordance with the provi- procedure and responsibilities to im- sions of paragraph (e) of this section. plement and enforce Executive Order (3) If the ISOC denies the appeal, in 11988, Floodplain Management, and Ex- part or in its entirety, then it will for- ecutive Order 11990, Protection of Wet- ward the appeal with its recommenda- lands. tion(s) to the Director of FEMA, for a final determination. A reply will be § 9.2 Policy. forwarded to the requestor enclosing (a) FEMA shall take no action unless the declassified releasable information and until the requirements of this reg- if any, and an explanation for denying ulation are complied with. the request in whole or in part. (b) It is the policy of the Agency to (4) Final action on appeals shall be provide leadership in floodplain man- completed within thirty (30) working agement and the protection of wet- days of receipt of appeal. lands. Further, the Agency shall integrate the goals of the Orders to the [49 FR 24518, June 14, 1984, as amended at 49 greatest possible degree into its proce- FR 38119, Sept. 27, 1984; 50 FR 40006, Oct. 1, dures for implementing NEPA. The 1985; 51 FR 34605, Sept. 30, 1986] Agency shall take action to: (1) Avoid long- and short-term ad- PART 9—FLOODPLAIN MANAGE- verse impacts associated with the occu- MENT AND PROTECTION OF WET- pancy and modification of floodplains LANDS and the destruction and modification of wetlands; Sec. (2) Avoid direct and indirect support 9.1 Purpose of part. of floodplain development and new con- 9.2 Policy. struction in wetlands wherever there is 9.3 Authority. a practicable alternative; 9.4 Definitions. (3) Reduce the risk of flood loss; 9.5 Scope. (4) Promote the use of nonstructural 9.6 Decision-making process. flood protection methods to reduce the 9.7 Determination of proposed action’s loca- risk of flood loss; tion. (5) Minimize the impact of floods on 9.8 Public notice requirements. human health, safety and welfare; 9.9 Analysis and reevaluation of practicable (6) Minimize the destruction, loss or alternatives. degradation of wetlands; 9.10 Identify impacts of proposed actions. (7) Restore and preserve the natural 9.11 Mitigation. and beneficial values served by 9.12 Final public notice. floodplains; 9.13 Particular types of temporary housing. (8) Preserve and enhance the natural 9.14 Disposal of Agency property. values of wetlands; 9.15 Planning programs affecting land use. (9) Involve the public throughout the 9.16 Guidance for applicants. floodplain management and wetlands 9.17 Instructions to applicants. protection decision-making process; 9.18 Responsibilities. (10) Adhere to the objectives of the APPENDIX A TO PART 9—DECISION-MAKING Unified National Program for Flood- PROCESS FOR E.O. 11988 plain Management; and (11) Improve and coordinate the AUTHORITY: E.O. 11988 of May 24, 1977. 3 Agency’s plans, programs, functions CFR, 1977 Comp., p. 117; E.O. 11990 of May 24 1977, 3 CFR, 1977 Comp. p. 121; Reorganization and resources so that the Nation may Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 attain the widest range of beneficial Comp., p. 329; E.O. 12127 of March 31, 1979, 44 uses of the environment without deg- FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148 radation or risk to health and safety. of July 20, 1979, 44 FR 43239, 3 CFR, 1979 Comp., p. 412, as amended.; E.O. 12127; E.O. § 9.3 Authority. 12148; 42 U.S.C. 5201. The authority for these regulations SOURCE: 45 FR 59526, Sept. 9, 1980, unless is (a) Executive Order 11988, May 24, otherwise noted. 1977, which replaced Executive Order

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11296, August 10, 1966, (b) Executive cy, who has programmatic responsi- Order 11990, May 24, 1977, (c) Reorga- bility for a particular action. nization Plan No. 3 of 1978 (43 FR 41943); Base Flood means the flood which has and (d) Executive Order 12127, April 1, a one percent chance of being equalled 1979 (44 FR 1936). E.O. 11988 was issued or exceeded in any given year (also in furtherance of the National Flood known as a 100-year flood). This term is Insurance Act of 1968, as amended (Pub. used in the National Flood Insurance L. 90–488); the Flood Disaster Protec- Program (NFIP) to indicate the min- tion Act of 1973, as amended (Pub. L. imum level of flooding to be used by a 93–234); and the National Environ- community in its floodplain manage- mental Policy Act of 1969 (NEPA) (Pub. ment regulations. L. 91–190). Section 2(d) of Executive Base Floodplain means the 100-year Order 11988 requires issuance of new or floodplain (one percent chance flood- amended regulations and procedures to plain). satisfy its substantive and procedural Coastal High Hazard Area means the provisions. E.O. 11990 was issued in fur- areas subject to high velocity waters therance of NEPA, and at section 6 re- including but not limited to hurricane quired issuance of new or amended reg- wave wash or tsunamis. On a Flood In- ulations and procedures to satisfy its surance Rate Map (FIRM), this appears substantive and procedural provisions. as zone V1–30, VE or V. Critical Action means an action for [45 FR 59526, Sept. 9, 1980, as amended at 48 which even a slight chance of flooding FR 44543, Sept. 29, 1983] is too great. The minimum floodplain § 9.4 Definitions. of concern for critical actions is the 500-year floodplain, i.e., critical action The following definitions shall apply floodplain. Critical actions include, but throughout this regulation. are not limited to, those which create Action means any action or activity or extend the useful life of structures including: (a) Acquiring, managing and or facilities: disposing of Federal lands and facili- (a) Such as those which produce, use ties; (b) providing federally under- or store highly volatile, flammable, ex- taken, financed or assisted construc- plosive, toxic or water-reactive mate- tion and improvements; and (c) con- rials; ducting Federal activities and pro- (b) Such as hospitals and nursing grams affecting land use, including, homes, and housing for the elderly, but not limited to, water and related which are likely to contain occupants land resources, planning, regulating who may not be sufficiently mobile to and licensing activities. avoid the loss of life or injury during Actions Affecting or Affected by flood and storm events; Floodplains or Wetlands means actions (c) Such as emergency operation cen- which have the potential to result in ters, or data storage centers which con- the long- or short-term impacts associ- tain records or services that may be- ated with (a) the occupancy or modi- come lost or inoperative during flood fication of floodplains, and the direct and storm events; and or indirect support of floodplain devel- (d) Such as generating plants, and opment, or (b) the destruction and other principal points of utility lines. modification of wetlands and the direct Direct Impacts means changes in or indirect support of new construction floodplain or wetland values and func- in wetlands. tions and changes in the risk to lives Agency means the Federal Emergency and property caused or induced by an Management Agency (FEMA). action or related activity. Impacts are Agency Assistance means grants for caused whenever these natural values projects or planning activities, loans, and functions are affected as a direct and all other forms of financial or tech- result of an action. An action which nical assistance provided by the Agen- would result in the discharge of pol- cy. luted storm waters into a floodplain or Associate Director means the head of wetland, for example, would directly any Office or Administration of the affect their natural values and func- Federal Emergency Management Agen- tions. Construction-related activities,

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such as dredging and filling operations priate, corresponding water surface ele- within the floodplain or a wetland vations or an examination, evaluation would be another example of impacts and determination of mudslide (i.e., caused by an action. mudflow) and/or flood-related erosion Director means the Director of the hazards. Federal Emergency Management Agen- Floodplain means the lowland and rel- cy (FEMA). atively flat areas adjoining inland and Emergency Actions means emergency coastal waters including, at a min- work essential to save lives and protect imum, that area subject to a one per- property and public health and safety cent or greater chance of flooding in performed under sections 305 and 306 of any given year. Wherever in this regu- the Disaster Relief Act of 1974 (42 U.S.C. 5145 and 5146). See 44 CFR part lation the term ‘‘floodplain’’ is used, if 205, subpart E. a critical action is involved, ‘‘flood- Enhance means to increase, heighten, plain’’ shall mean the area subject to or improve the natural and beneficial inundation from a flood having a 0.2 values associated with wetlands. percent chance of occurring in any Facility means any man-made or given year (500-year floodplain). man-placed item other than a struc- ‘‘Floodplain’’ does not include areas ture. subject only to mudflow until FIA FEMA means the Federal Emergency adopts maps identifying ‘‘M’’ Zones. Management Agency. Floodproofing means the modification FIA means the Federal Insurance Ad- of individual structures and facilities, ministration. their sites, and their contents to pro- Five Hundred Year Floodplain (the 500- tect against structural failure, to keep year floodplain or 0.2 percent change water out, or to reduce effects of water floodplain) means that area, including entry. the base floodplain, which is subject to Floodway means that portion of the inundation from a flood having a 0.2 floodplain which is effective in car- percent chance of being equalled or ex- rying flow, within which this carrying ceeded in any given year. Flood or flooding means a general and capacity must be preserved and where temporary condition of partial or com- the flood hazard is generally highest, plete inundation of normally dry land i.e., where water depths and velocities areas from the overflow of inland and/ are the greatest. It is that area which or tidal waters, and/or the unusual and provides for the discharge of the base rapid accumulation or runoff of surface flood so the cumulative increase in waters from any source. water surface elevation is no more Flood Fringe means that portion of than one foot. the floodplain outside of the floodway Functionally Dependent Use means a (often referred to as ‘‘floodway use which cannot perform its intended fringe’’). purpose unless it is located or carried Flood Hazard Boundary Map (FHBM) out in close proximity to water, (e.g., means an offical map of a community, bridges, and piers). issued by the Director, where the Indirect Impacts means an indirect re- boundaries of the flood, mudslide (i.e., sult of an action whenever the action mudflow) and related erosion areas induces or makes possible related ac- having special hazards have been des- tivities which effect the natural values ignated as Zone A, M, or E. and functions of floodplains or wet- Flood Insurance Rate Map (FIRM) lands or the risk to lives and property. means an official map of a community Such impacts occur whenever these on which the Director has delineated both the special hazard areas and the values and functions are potentially af- risk premium zones applicable to the fected, either in the short- or long- community. term, as a result of undertaking an ac- Flood Insurance Study (FIS) means an tion. examination, evaluation and deter- Minimize means to reduce to the mination of flood hazards and, if appro- smallest amount or degree possible.

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Mitigation means all steps necessary more than a designated amount (not to to minimize the potentially adverse ef- exceed one foot as set by the National fects of the proposed action, and to re- Flood Insurance Program). store and preserve the natural and ben- Restore means to reestablish a setting eficial floodplain values and to pre- or environment in which the natural serve and enhance natural values of functions of the floodplain can again wetlands. operate. Natural Values of Floodplains and Wet- SLPS means the State and Local Pro- lands means the qualities of or func- grams and Support Directorate. tions served by floodplains and wet- Structures means walled or roofed lands which include but are not limited buildings, including mobile homes and to: (a) Water resource values (natural gas or liquid storage tanks. moderation of floods, water quality Substantial Improvement means any maintenance, groundwater recharge); repair, reconstruction or other im- (b) living resource values (fish, wildlife, provement of a structure or facility, plant resources and habitats); (c) cul- which has been damaged in excess of, tural resource values (open space, nat- or the cost of which equals or exceeds, ural beauty, scientific study, outdoor 50% of the market value of the struc- education, archeological and historic ture or replacement cost of the facility sites, recreation); and (d) cultivated re- (including all ‘‘public facilities’’ as de- source values (agriculture, aqua- fined in the Disaster Relief Act of 1974) culture, forestry). (a) before the repair or improvement is New Construction means the construc- started, or (b) if the structure or facil- tion of a new structure (including the ity has been damaged and is proposed placement of a mobile home) or facility to be restored, before the damage oc- or the replacement of a structure or fa- curred. If a facility is an essential link cility which has been totally de- in a larger system, the percentage of stroyed. damage will be based on the relative New Construction in Wetlands includes cost of repairing the damaged facility draining, dredging, channelizing, fill- to the replacement cost of the portion ing, diking, impounding, and related of the system which is operationally activities and any structures or facili- dependent on the facility. The term ties begun or authorized after the effec- ‘‘substantial improvement’’ does not tive dates of the Orders, May 24, 1977. include any alteration of a structure or Orders means Executive Orders 11988, facility listed on the National Register Floodplain Management, and 11990, of Historic Places or a State Inventory Protection of Wetlands. of Historic Places. Practicable means capable of being Support means to encourage, allow, done within existing constraints. The serve or otherwise facilitate floodplain test of what is practicable depends or wetland development. Direct sup- upon the situation and includes consid- port results from actions within a eration of all pertinent factors, such as floodplain or wetland, and indirect sup- environment, cost and technology. port results from actions outside of Preserve means to prevent alterations floodplains or wetlands. to natural conditions and to maintain Wetlands means those areas which the values and functions which operate are inundated or saturated by surface the floodplains or wetlands in their or ground water with a frequency suffi- natural states. cient to support, or that under normal Regional Director means the Regional hydrologic conditions does or would Director of the Federal Emergency support, a prevalence of vegetation or Management Agency for the Region in aquatic life typically adapted for life in which FEMA is acting or the Disaster saturated or seasonally saturated soil Recovery Manager when one is des- conditions. Examples of wetlands in- ignated. clude, but are not limited to, swamps, Regulatory Floodway means the area fresh and salt water marshes, estu- regulated by federal, State or local re- aries, bogs, beaches, wet meadows, quirements to provide for the discharge sloughs, potholes, mud flats, river of the base flood so the cumulative in- overflows and other similar areas. This crease in water surface elevation is no definition includes those wetlands

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areas separated from their natural sup- (ii) Apply the provisions of the Or- ply of water as a result of activities ders and of this regulation to all such such as the construction of structural actions to the fullest extent prac- flood protection methods or solid-fill ticable. road beds and activities such as min- (b) Limited exemption of ongoing ac- eral extraction and navigation im- tions involving wetlands located outside provements. This definition is intended the floodplains. (1) Executive Order to be consistent with the definition 11990, Protection of Wetlands, contains utilized by the U.S. Fish and Wildlife a limited exemption not found in Exec- Service in the publication entitled utive Order 11988, Floodplain Manage- Classification of Wetlands and Deep ment. Therefore, this exemption ap- Water Habitats of the United States plies only to actions affecting wetlands (Cowardin, et al., 1977). which are located outside the floodplains, and which have no poten- [45 FR 59526, Sept. 9, 1980, as amended at 47 tial to result in harm to or within FR 13149, Mar. 29, 1982; 50 FR 40006, Oct. 1, 1985] floodplains or to support floodplain development. § 9.5 Scope. (2) The following proposed actions that impact wetlands located outside (a) Applicability. (1) These regulations of floodplains are exempt from this apply to all Agency actions which have regulation: the potential to affect floodplains or (i) Agency-assisted or permitted wetlands or their occupants, or which projects which were under construction are subject to potential harm by loca- before May 24, 1977; and tion in floodplains or wetlands. (ii) Projects for which the Agency (2) The basic test of the potential of has proposed a draft of a final environ- an action to affect floodplains or wet- mental impact statement (EIS) which lands is the action’s potential (both by adequately analyzes the action and itself and when viewed cumulatively which was filed before October 1, 1977. with other proposed actions) to result Proposed actions that impact wetlands in the long- or short-term adverse im- outside of floodplains are not exempt if pacts associated with: the EIS: (i) The occupancy or modification of (A) Only generally covers the pro- floodplains, and the direct and indirect posed action; support of floodplain development; or (B) Is devoted largely to related ac- (ii) The destruction or modification tivities; or of wetlands and the direct or indirect (C) Treats the project area or pro- support of new construction in wet- gram without an adequate and specific lands. analysis of the floodplain and wetland (3) This regulation applies to actions implications of the proposed action. that were, on the effective date of the (c) Decision-making involving certain Orders (May 24, 1977), ongoing, in the categories of actions. The provisions set planning and/or development stages, or forth in this regulation are not applica- undergoing implementation, and are ble to the actions enumerated below ex- incomplete as of the effective date of cept that the Regional Directors shall these regulations. The regulation also comply with the spirit of the Order to applies to proposed (new) actions. The the extent practicable. For any action Agency shall: which is excluded from the actions enu- (i) Determine the applicable provi- merated below, the full 8-step process sions of the Orders by analyzing wheth- applies (see § 9.6) (except as indicated er the action in question has pro- at paragraphs (d), (f) and (g) of this sec- gressed beyond critical stages in the tion regarding other categories of par- floodplain management and wetlands tial or total exclusions). The provisions protection decision-making process, as of these regulations do not apply to the set out below in § 9.6. This determina- following (all references are to the Dis- tion need only be made at the time aster Relief Act of 1974, Pub. L. 93–288, that followup actions are being taken as amended, except as noted): to complete or implement the action in (1) Assistance provided for emergency question; and work essential to save lives and protect

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property and public health and safety and Liability Act of 1980, Public Law performed pursuant to sections 305 and 96–510. 306; (d) For each action enumerated (2) Emergency Support Teams (sec- below, the Regional Director shall tion 304); apply steps 1, 2, 4, 5 and 8 of the deci- (3) Unemployment Assistance (sec- sion-making process (§§ 9.7, 9.8, 9.10 and tion 407); 9.11, see § 9.6). Steps 3 and 6 (§ 9.9) shall (4) Emergency Communications (sec- be carried out except that alternative tion 415); sites outside the floodplain or wetland (5) Emergency Public Transportation need not be considered. After assessing (section 416); impacts of the proposed action on the (6) Fire Management Assistance (Sec- floodplain or wetlands and of the site tion 420); on the proposed action, alternative ac- (7) Community Disaster Loans (sections to the proposed action, if any, tion 414), except to the extent that the and the ‘‘no action’’ alternative shall proceeds of the loan will be used for re- be considered. The Regional Director pair of facilities or structures or for may also require certain other portions construction of additional facilities or of the decision-making process to be structures; carried out for individual actions as is (8) The following Individual and deemed necessary. For any action Family Grant Program (section 408) ac- which is excluded from the actions list- tions: ed below. (except as indicated in para- (i) Housing needs or expenses, except graphs (c), (f) and (g) of this section re- for restoring, repairing or building pri- garding other categories of partial or vate bridges, purchase of mobile homes total exclusion), the full 8-step process and provision of structures as min- applies (see § 9.6). The references are to imum protective measures; the Disaster Relief Act of 1974, Public (ii) Personal property needs or ex- Law 93–288, as amended. penses; (1) Actions performed under the Indi- vidual and Family Grant Program (sec- (iii) Transportation expenses; tion 408) for restoring or repairing a (iv) Medical/dental expenses; private bridge, except where two or (v) Funeral expenses; more individuals or families are au- (vi) Limited home repairs; thorized to pool their grants for this (vii) Flood insurance premium; purpose. (viii) Cost estimates; (2) Small project grants (section 419), (ix) Food expenses; and except to the extent that Federal fund- (x) Temporary rental accommoda- ing involved is used for construction of tions. new facilities or structures. (9) Mortgage and rental assistance (3) Replacement of building contents, under section 404(b); materials and equipment. (sections 402 (10) Use of existing resources in the and 419). temporary housing assistance program (4) Repairs under section 402 to dam- [section 404(a)], except that Step 1 aged facilities or structures, except (§ 9.7) shall be carried out; any such action for which one or more (11) Minimal home repairs [section of the following is applicable: 404(c)]; (i) FEMA estimated cost of repairs is (12) Debris removal (section 403), ex- more than 50% of the estimated recon- cept those grants involving non-emer- struction cost of the entire facility or gency disposal of debris within a flood- structure, or is more than $100,000, or plain or wetland; (ii) The action is located in a (13) Repairs or replacements under floodway or coastal high hazard area, section 402, of less than $5,000 to dam- or aged structures or facilities. (iii) The facility or structure is one (14) Placement of families in existing which has previously sustained struc- resources and Temporary Relocation tural damage from flooding due to a Assistance provided to those families major disaster or emergency or on so placed under the Comprehensive En- which a flood insurance claim has been vironmental Response, Compensation, paid, or

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(iv) The action is a critical action. (i) The issuance of individual flood (e) Other categories of actions. Based insurance policies and policy interpre- upon the completion of the 8-step deci- tations; sion-making process (§ 9.6), the Direc- (ii) The adjustment of claims made tor may find that a specific category of under the Standard Flood Insurance actions either offers no potential for Policy; carrying out the purposes of the Orders (iii) The hiring of independent con- and shall be treated as those actions tractors to assist in the implementa- listed in § 9.5(c), or has no practicable tion of the National Flood Insurance alternative sites and shall be treated as Program; those actions listed in § 9.5(d), or has no (iv) The issuance of individual flood practicable alternative actions or sites insurance maps, Map Information Fa- and shall be treated as those actions cility map determinations, and map listed in § 9.5(g). This finding will be amendments; and made in consultation with the Federal (v) The conferring of eligibility for Insurance Administration and the emergency or regular program (NFIP) Council on Environmental Quality as benefits upon communities. provided in section 2(d) of E.O. 11988. (g) For the action listed below, the Public notice of each of these deter- Regional Director shall apply steps 1, 4, minations shall include publication in 5 and 8 of the decision-making process the FEDERAL REGISTER and a 30-day (§§ 9.7, 9.10 and 9.11). For any action comment period. which is excluded from the actions list- (f) The National Flood Insurance Pro- ed below, (except as indicated in para- gram (NFIP). (1) Most of what is done graphs (c), (d) and (f) of this section re- by FIA or SLPS, in adminstering the garding other categories of partial or National Flood Insurance Program is total exclusion), the full 8-step process performed on a program-wide basis. applies (See § 9.6). The Regional Direc- For all regulations, procedures or other tor may also require certain other por- issuances making or amending pro- tions of the decision-making process to gram policy, FIA or SLPS, shall apply be carried out for individual actions as the 8-step decision-making process to is deemed necessary. The references that program-wide action. The action are to the Disaster Relief Act of 1974, to which the 8-step process must be ap- Public Law 93–288. The above require- plied is the establishment of pro- ments apply to repairs, under section grammatic standards or criteria, not 402, between $5,000 and $25,000 to dam- the application of programmatic stand- aged structures of facilities except for: ards or criteria to specific situations. (1) Actions in a floodway or coastal Thus, for example, FIA or SLPS, would high hazard area; or apply the 8-step process to a pro- (2) New or substantially improved grammatic determination of categories structures or facilities; or of structures to be insured, but not to (3) Facilities or structures which whether to insure each individual have previously sustained structural structure. The two prime examples of damage from flooding due to a major where FIA or SLPS, does take site spe- disaster or emergency. cific actions which would require indi- [45 FR 59526, Sept. 9, 1980, as amended at 47 vidual application of the 8-step process FR 13149, Mar. 29, 1982; 49 FR 35583, Sept. 10, are property acquisition under section 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 39531, 1362 of the National Flood Insurance Oct. 29, 1986; 66 FR 57347, Nov. 14, 2001] Act of 1968, as amended, and the issuance of an exception to a commu- § 9.6 Decision-making process. nity under 44 CFR 60.6(b). (See also (a) Purpose. The purpose of this sec- § 9.9(e)(6) and § 9.11(e).) tion is to set out the floodplain man- (2) The provisions set forth in this agement and wetlands protection deci- regulation are not applicable to the ac- sion-making process to be followed by tions enumerated below except that the Agency in applying the Orders to the Federal Insurance Administrator its actions. While the decision-making or the Associate Director, SLPS, as ap- process was initially designed to ad- propriate shall comply with the spirit dress the floodplain Order’s require- of the Orders to the extent practicable: ments, the process will also satisfy the

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wetlands Order’s provisions due to the and its potential to disrupt floodplain close similarity of the two directives. and wetland values and second, if alter- The numbering of Steps 1 through 8 natives preliminarily rejected at Step 3 does not firmly require that the steps are practicable in light of the informa- be followed sequentially. As information gained in Steps 4 and 5. FEMA tion is gathered throughout the deci- shall not act in a floodplain or wetland sion-making process and as additional unless it is the only practicable loca- information is needed, reevaluation of tion (see § 9.9); lower numbered steps may be nec- Step 7. Prepare and provide the public essary. with a finding and public explanation (b) Except as otherwise provided in of any final decision that the flood- § 9.5 (c), (d), (f), and (g) regarding cat- plain or wetland is the only practicable egories of partial or total exclusion alternative (see § 9.12); and when proposing an action, the Agency Step 8. Review the implementation shall apply the 8-step decision-making and post-implementation phases of the process. FEMA shall: proposed action to ensure that the re- Step 1. Determine whether the pro- quirements stated in § 9.11 are fully imposed action is located in a wetland plemented. Oversight responsibility and/or the 100-year floodplain (500-year shall be integrated into existing proc- floodplain for critical actions); and esses. whether it has the potential to affect [45 FR 59526, Sept. 9, 1980, as amended at 49 or be affected by a floodplain or wet- FR 35583, Sept. 10, 1984; 50 FR 40006, Oct. 1, land (see § 9.7); 1985] Step 2. Notify the public at the earliest possible time of the intent to § 9.7 Determination of proposed ac- carry out an action in a floodplain or tion’s location. wetland, and involve the affected and (a) The purpose of this section is to interested public in the decision-mak- establish Agency procedures for deter- ing process (see § 9.8); mining whether any action as proposed Step 3. Identify and evaluate prac- is located in or affects (1) the base ticable alternatives to locating the floodplain (the Agency shall substitute proposed action in a floodplain or wet- the 500-year floodplain for the base land (including alternative sites, ac- floodplain where the action being pro- tions and the ‘‘no action’’ option) (see posed involves a critical action), or (2) § 9.9). If a practicable alternative exists a wetland. outside the floodplain or wetland (b) Information needed. The Agency FEMA must locate the action at the al- shall obtain enough information so ternative site. that it can fulfill the requirements of Step 4. Identify the potential direct the Orders to (1) avoid floodplain and and indirect impacts associated with wetland locations unless they are the the occupancy or modification of only practicable alternatives; and (2) floodplains and wetlands and the po- minimize harm to and within tential direct and indirect support of floodplains and wetlands. In all cases, floodplain and wetland development FEMA shall determine whether the that could result from the proposed ac- proposed action is located in a flood- tion (see § 9.10); plain or wetland. In the absence of a Step 5. Minimize the potential ad- finding to the contrary, FEMA may as- verse impacts and support to or within sume that a proposed action involving floodplains and wetlands to be identi- a facility or structure that has been fied under Step 4, restore and preserve flooded is in the floodplain. Informa- the natural and beneficial values tion about the 100-year and 500-year served by floodplains, and preserve and floods and location of floodways and enhance the natural and beneficial val- coastal high hazard areas may also be ues served by wetlands (see § 9.11); needed to comply with these regula- Step 6. Reevaluate the proposed actions, especially § 9.11. The following tion to determine first, if it is still additional flooding characteristics practicable in light of its exposure to shall be identified by the Regional Di- flood hazards, the extent to which it rector as appropriate: will aggravate the hazards to others, (i) Velocity of floodwater;

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(ii) Rate of rise of floodwater; (2) If a decision involves an area or (iii) Duration of flooding; location within extensive Federal or (iv) Available warning and evacu- state holdings or a headwater area, and ation time and routes; an FIS, FIRM, FBFM, or FHBM is not (v) Special problems: available, the Regional Director shall (A) Levees; seek information from the land admin- (B) Erosion; istering agency before information and/ (C) Subsidence; or assistance is sought from the (D) Sink holes; sources listed in this section. If none of (E) Ice jams; these sources has information or can (F) Debris load; provide assistance, the services of an (G) Pollutants; experienced Federal or other engineer (H) Wave heights; shall be sought as described above. (I) Groundwater flooding; (d) Wetland determination. The fol- (J) Mudflow. lowing sequence shall be followed by (c) Floodplain determination. (1) In the search for flood hazard information, the Agency in making the wetland de- FEMA shall follow the sequence below: termination. (i) The Regional Director shall con- (1) The Agency shall consult with the sult the FEMA Flood Insurance Rate U.S. Fish and Wildlife Service (FWS) Map (FIRM) the Flood Boundary for information concerning the loca- Floodway Map (FBFM) and the Flood tion, scale and type of wetlands within Insurance Study (FIS). the area which could be affected by the (ii) If a detailed map (FIRM or proposed action. FBFM) is not available, the Regional (2) If the FWS does not have adequate Director shall consult an FEMA Flood information upon which to base the de- Hazard Boundary Map (FHBM) . If data termination, the Agency shall consult on flood elevations, floodways, or wetland inventories maintained by the coastal high hazard areas are needed, Army Corps of Engineers, the Environ- or if the map does not delineate the mental Protection Agency, various flood hazard boundaries in the vicinity states, communities and others. of the proposed site, the Regional Di- (3) If state or other sources do not rector shall seek the necessary detailed have adequate information upon which information and assistance from the to base the determination, the Agency sources listed below. shall carry out an on-site analysis performed by a representative of the FWS SOURCES OF MAPS AND TECHNICAL or other qualified individual for wet- INFORMATION lands characteristics based on the per- Department of Agriculture: Soil Conserva- formance definition of what con- tion Service stitutes a wetland. Department of the Army: Corps of Engineers Department of Commerce: National Oceanic (4) If an action is in a wetland but and Atmospheric Administration not in a floodplain, and the action is Federal Insurance Administration new construction, the provisions of FEMA Regional Offices/Natural and Techno- this regulation shall apply. Even if the logical Hazards Division action is not in a wetland, the Regional Department of the Interior: Director shall determine if the action Geological Survey Bureau of Land Management has the potential to result in indirect Bureau of Reclamation impacts on wetlands. If so, all adverse Tennessee Valley Authority impacts shall be minimized. For ac- Delaware River Basin Commission tions which are in a wetland and the Susquehanna River Basin Commission floodplain, completion of the decision- States making process is required. (See § 9.6.) (iii) If the sources listed do not have In such a case the wetland will be con- or know of the information necessary sidered as one of the natural and bene- to comply with the Orders’ require- ficial values of floodplain. ments, the Regional Director shall [45 FR 59526, Sept. 9, 1980, as amended at 47 seek the services of a Federal or other FR 13149, Mar. 29, 1982; 49 FR 33879, Aug. 27, engineer experienced in this type of 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 34605, work. Sept. 30, 1986]

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§ 9.8 Public notice requirements. quate comment periods, and whether to (a) Purpose. The purpose of this sec- issue cumulative notices (paragraphs tion is to establish the initial notice (c)(4), (6) and (7) of this section) on fac- procedures to be followed when pro- tors which include, but are not limited posing any action in or affecting to: floodplains or wetlands. (i) Scale of the action; (b) General. The Agency shall provide (ii) Potential for controversy; adequate information to enable the (iii) Degree of public need; public to have impact on the decision (iv) Number of affected agencies and outcome for all actions having poten- individuals; and tial to affect, adversely, or be affected (v) Its anticipated potential impact. by floodplains or wetlands that it pro- (4) For each action having primarily poses. To achieve this objective, the local importance for which notice is Agency shall: being provided, notice shall be made in (1) Provide the public with adequate accordance with the criteria under information and opportunity for review paragraph (c)(3) of this section, and and comment at the earliest possible shall entail as appropriate: time and throughout the decision-mak- (i) [Reserved] ing process; and upon completion of (ii) Notice to Indian tribes when ef- this process, provide the public with an fects may occur on reservations. accounting of its final decisions (see (iii) Information required in the af- § 9.12); and fected State’s public notice procedures (2) Rely on its environmental assess- for comparable actions. ment processes, to the extent possible, (iv) Publication in local newspapers as vehicles for public notice, involve- (in papers of general circulation rather ment and explanation. than legal papers). (c) Early public notice. The Agency (v) Notice through other local media. shall provide opportunity for public in- (vi) Notice to potentially interested volvement in the decision-making community organizations. process through the provision of public (vii) Publication in newsletters that notice upon determining that the pro- may be expected to reach potentially posed action can be expected to affect interested persons. or be affected by floodplains or wet- (viii) Direct mailing to owners and lands. Whenever possible, notice shall occupants of nearby or affected prop- precede major project site identifica- erty. tion and analysis in order to preclude (ix) Posting of notice on and off site the foreclosure of options consistent in the area where the action is to be lo- with the Orders. cated. (1) For an action for which an envi- (x) Holding a public hearing. ronmental impact statement is being (5) The notice shall include: prepared, the Notice of Intent to File (i) A description of the action, its an EIS is adequate to constitute the purpose and a statement of the intent early public notice, if it includes the to carry out an action affecting or af- information required under paragraph fected by a floodplain or wetland; (c)(5) of this section. (ii) Based on the factors in paragraph (2) For each action having national (c)(3) of this section, a map of the area significance for which notice is being or other indentification of the flood- provided, the Agency shall use the FED- plain and/or wetland areas which is of ERAL REGISTER as the minimum means adequate scale and detail so that the for notice, and shall provide notice by location is discernible; instead of publi- mail to national organizations reason- cation of such map, FEMA may state ably expected to be interested in the that such map is available for public action. The additional notices listed in inspection, including the location at paragraph (c)(4) of this section shall be which such map may be inspected and used in accordance with the determina- a telephone number to call for information made under paragraph (c)(3) of tion; this section. (iii) Based on the factors in para- (3) The Agency shall base its deter- graph (c)(3) of this section, a descrip- mination of appropriate notices, ade- tion of the type, extent and degree of

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hazard involved and the floodplain or that the location outside the floodplain wetland values present; and or wetland does not indirectly impact (iv) Identification of the responsible floodplains or wetlands or support de- official or organization for imple- velopment therein (see § 9.10), the re- menting the proposed action, and from maining analysis set out by this regu- whom further information can be ob- lation is not required. If such location tained. does indirectly impact floodplains or (6) The Agency shall provide for an wetlands or support development adequate comment period. therein, the remaining analysis set out (7) In a post-disaster situation in par- by this regulation is required. If the ticular, the requirement for early pub- preliminary determination is to act in lic notice may be met in a cumulative the floodplain, FEMA shall gather the manner based on the factors set out in additional information required under paragraph (c)(3) of this section. Several Steps 4 and 5 and then reevaluate all actions may be addressed in one notice the data to determine if the floodplain or series of notices. For some actions or wetland is the only practicable al- involving limited public interest a sin- ternative. gle notice in a local newspaper or let- (b) Analysis of practicable alternatives. ter to interested parties may suffice. The Agency shall identify and evaluate (d) Continuing public notice. The practicable alternatives to carrying Agency shall keep the public informed out a proposed action in floodplains or of the progress of the decision-making wetlands, including: process through additional public no- (1) Alternative sites outside the tices at key points in the process. The floodplain or wetland; preliminary information provided (2) Alternative actions which serve under paragraph (c)(5) of this section essentially the same purpose as the shall be augmented by the findings of proposed action, but which have less the adverse effects of the proposed ac- potential to affect or be affected by the tions and steps necessary to mitigate floodplain or wetlands; and them. This responsibility shall be performed for actions requiring the prepa- (3) No action. The floodplain and wet- ration of an EIS, and all other actions land site itself must be a practicable having the potential for major adverse location in light of the factors set out impacts, or the potential for harm to in this section. the health and safety of the general (c) The Agency shall analyze the fol- public. lowing factors in determining the practicability of the alternatives set out in [45 FR 59526, Sept. 9, 1980, as amended at 48 paragraph (b) of this section: FR 29318, June 24, 1983] (1) Natural environment (topography, § 9.9 Analysis and reevaluation of habitat, hazards, etc.); practicable alternatives. (2) Social concerns (aesthetics, his- (a) Purpose. (1) The purpose of this torical and cultural values, land pat- section is to expand upon the directives terns, etc.); set out in § 9.6, of this part, in order to (3) Economic aspects (costs of space, clarify and emphasize the Orders’ key construction, services, and relocation); requirements to avoid floodplains and and wetlands unless there is no practicable (4) Legal constraints (deeds, leases, alternative. etc.). (2) Step 3 is a preliminary determina- (d) Action following the analysis of tion as to whether the floodplain is the practicable alternatives. (1) The Agency only practicable location for the ac- shall not locate the proposed action in tion. It is a preliminary determination the floodplain or in a wetland if a prac- because it comes early in the decision- ticable alternative exists outside the making process when the Agency has a floodplain or wetland. limited amount of information. If it is (2) For critical actions, the Agency clear that there is a practicable alter- shall not locate the proposed action in native, or the floodplain or wetland is the 500-year floodplain if a practicable itself not a practicable location, FEMA alternative exists outside the 500-year shall then act on that basis. Provided floodplain.

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(3) Even if no practicable alternative the floodplain or wetland is not itself a exists outside the floodplain or wet- practicable alternative. In making the land, in order to carry out the action assessment of whether a floodplain or the floodplain or wetland must itself be wetland location is itself a practicable a practicable location in light of the alternative, the practicability of the review required in this section. floodplain or wetland location shall be (e) Reevaluation of alternatives. Upon balanced against the practicability of determination of the impact of the pro- not carrying out the action at all. That posed action to or within the floodplain is, even if there is no practicable alter- or wetland and of what measures are native outside of the floodplain or wet- necessary to comply with the require- land, the floodplain or wetland itself ment to minimize harm to and within must be a practicable location in order floodplains and wetlands (§ 9.11), FEMA for the action to be carried out there. shall: To be a practicable location, the im- (1) Determine whether: portance of carrying out the action (i) The action is still practicable at a must clearly outweigh the require- floodplain or wetland site in light of ments of the Orders listed in para- the exposure to flood risk and the ensu- graphs (e)(2) and (e)(3) of this section. ing disruption of natural values; Unless the importance of carrying out (ii) The floodplain or wetland site is the action clearly outweighs those re- the only practicable alternative; quirements, the ‘‘no action’’ alter- (iii) There is a potential for limiting native shall be selected. the action to increase the practica- (6) In any case in which the Regional bility of previously rejected non-flood- Director has selected the ‘‘no action’’ plain or wetland sites and alternative option, FIA may not provide a new or actions; and renewed contract of flood insurance for (iv) Minimization of harm to or with- that structure. in the floodplain can be achieved using EFFECTIVE DATE NOTE: At 45 FR 79070, Nov. all practicable means. 28, 1980, § 9.9(e)(6) was temporarily suspended (2) Take no action in a floodplain un- until further notice. less the importance of the floodplain site clearly outweighs the requirement § 9.10 Identify impacts of proposed ac- of E.O. 11988 to: tions. (i) Avoid direct or indirect support of (a) Purpose. The purpose of this sec- floodplain development; tion is to ensure that the effects of pro- (ii) Reduce the risk of flood loss; posed Agency actions are identified. (iii) Minimize the impact of floods on (b) The Agency shall identify the po- human safety, health and welfare; and tential direct and indirect adverse im- (iv) Restore and preserve floodplain pacts associated with the occupancy values. and modification of floodplains and (3) Take no action in a wetland un- wetlands and the potential direct and less the importance of the wetland site indirect support of floodplain and wet- clearly outweighs the requirements of land development that could result E.O. 11990 to: from the proposed action. Such identi- (i) Avoid the destruction or modifica- fication of impacts shall be to the ex- tion of the wetlands; tent necessary to comply with the re- (ii) Avoid direct or indirect support quirements of the Orders to avoid of new construction in wetlands; floodplain and wetland locations unless (iii) Minimize the destruction, loss or they are the only practicable alter- degradation of wetlands; and natives and to minimize harm to and (iv) Preserve and enhance the natural within floodplains and wetlands. and beneficial values of wetlands. (c) This identification shall consider (4) In carrying out this balancing whether the proposed action will result process, give the factors in paragraphs in an increase in the useful life of any (e)(2) and (3) of this section, the great structure or facility in question, main- weight intended by the Orders. tain the investment at risk and expo- (5) Choose the ‘‘no action’’ alter- sure of lives to the flood hazard or fore- native where there are no practicable go an opportunity to restore the nat- alternative actions or sites and where ural and beneficial values served by

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floodplains or wetlands. Regional Of- the preliminary determination is made fices of the U.S. Fish and Wildlife Serv- to carry out an action that affects or is ice may be contacted to aid in the iden- in a floodplain or wetland. tification and evaluation of potential (b) General provisions. (1) The Agency impacts of the proposed action on nat- shall design or modify its actions so as ural and beneficial floodplain and wet- to minimize harm to or within the land values. floodplain; (d) In the review of a proposed or al- (2) The Agency shall minimize the de- ternative action, the Regional Director struction, loss or degradation of wet- shall specifically consider and evalu- lands; ate: impacts associated with modifica- (3) The Agency shall restore and pre- tion of wetlands and floodplains reserve natural and beneficial floodplain gardless of its location; additional im- values; and pacts which may occur when certain (4) The Agency shall preserve and en- types of actions may support subse- hance natural and beneficial wetland quent action which have additional im- values. pacts of their own; adverse impacts of (c) Minimization provisions. The Agen- the proposed actions on lives and prop- cy shall minimize: erty and on natural and beneficial (1) Potential harm to lives and the floodplain and wetland values; and the investment at risk from the base flood, three categories of factors listed below: or, in the case of critical actions, from (1) Flood hazard-related factors. These the 500-year flood; include for example, the factors listed in § 9.7(b)(2); (2) Potential adverse impacts the ac- (2) Natural values-related factors. tion may have on others; and These include, for example, the fol- (3) Potential adverse impact the ac- lowing: Water resource values (natural tion may have on floodplain and wet- moderation of floods, water quality land values. maintenance, and ground water re- (d) Minimization Standards. In its im- charge); living resource values (fish plementation of the Disaster Relief Act and wildlife and biological produc- of 1974, the Agency shall apply at a tivity); cultural resource values (ar- minimum, the following standards to cheological and historic sites, and open its actions to comply with the require- space recreation and green belts); and ments of paragraphs (b) and (c), of this agricultural, aquacultural and forestry section, (except as provided in § 9.5 (c), resource values. (d), and (g) regarding categories of par- (3) Factors relevant to a proposed ac- tial or total exclusion). Any Agency action’s effects on the survival and quality tion to which the following specific re- of wetlands. These include, for example, quirements do not apply, shall never- the following: Public health, safety, theless be subject to the full 8-step and welfare, including water supply, process (§ 9.6) including the general re- quality, recharge and discharge; pollu- quirement to minimize harm to and tion; flood and storm hazards; and sedi- within floodplains: ment and erosion; maintenance of nat- (1) There shall be no new construc- ural systems, including conservation tion or substantial improvement in a and long term productivity of existing floodway, and no new construction in a flora and fauna, species and habitat di- coastal high hazard area, except for: versity and stability, hydrologic util- (i) A functionally dependent use; or ity, fish, wildlife, timber, and food and (ii) A structure or facility which fa- fiber resources; and other uses of wet- cilitates an open space use. lands in the public interest, including (2) For a structure which is a func- recreational, scientific, and cultural tionally dependent use, or which facili- uses. tates an open space use, the following applies. There shall be no construction § 9.11 Mitigation. of a new or substantially improved (a) Purpose. The purpose of this sec- structure in a coastal high hazard area tion is to expand upon the directives unless it is elevated on adequately an- set out in § 9.6 of this part, and to set chored pilings or columns, and securely out the mitigative actions required if anchored to such piles or columns so

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that the lowest portion of the struc- after compliance with the standards of tural members of the lowest floor (ex- 44 CFR 60.6(a). cluding the pilings or columns) is ele- (4) There shall be no encroachments, vated to or above the base flood level including fill, new construction, sub- (the 500-year flood level for critical ac- stantial improvements of structures or tions) (including wave height). The facilities, or other development within structure shall be anchored so as to a designated regulatory floodway that withstand velocity waters and hurri- would result in any increase in flood cane wave wash. The Regional Director levels within the community during shall be responsible for determining the occurrence of the base flood dis- the base flood level, including the wave charge. Until a regulatory floodway is height, in all cases. Where there is a designated, no new construction, sub- FIRM in effect, it shall be the basis of stantial improvements, or other devel- the Regional Director’s determination. opment (including fill) shall be per- If the FIRM does not reflect wave mitted within the base floodplain un- heights, or if there is no FIRM in ef- less it is demonstrated that the cumu- fect, the Regional Director is respon- lative effect of the proposed develop- sible for delineating the base flood ment, when combined with all other level, including wave heights. existing and anticipated development, (3) Elevation of structures. (i) There will not increase the water surface ele- shall be no new construction or sub- vation of the base flood more than one stantial improvement of structures un- foot at any point within the commu- less the lowest floor of the structures nity. (including basement) is at or above the (5) Even if an action is a functionally level of the base flood. dependent use or facilitates open space (ii) There shall be no new construc- uses (under paragraph (d) (1) or (2) of tion or substantial improvement of this section) and does not increase structures involving a critical action flood heights (under paragraph (d)(4) of unless the lowest floor of the structure this section), such action may only be (including the basement) is at or above taken in a floodway or coastal high the level of the 500-year flood. hazard area if: (iii) If the subject structure is non- (i) Such site is the only practicable residential, FEMA may, instead of ele- alternative; and vating the structure to the 100-year or 500-year level, as appropriate, approve (ii) Harm to and within the flood- the design of the structure and its at- plain is minimized. tendant utility and sanitary facilities (6) In addition to standards (d)(1) so that below the flood level the struc- through (d)(5) of this section, no action ture is water tight with walls substan- may be taken if it is inconsistent with tially impermeable to the passage of the criteria of the National Flood In- water and with structural components surance Program (44 CFR part 59 et having the capability of resisting hy- seq.) or any more restrictive Federal, drostatic and hydrodynamic loads and State or local floodplain management effects of buoyancy. standards. (iv) The provisions of paragraphs (7) New construction and substantial (d)(3)(i), (ii), and (iii) of this section do improvement of structures shall be ele- not apply to the extent that the Fed- vated on open works (walls, columns, eral Insurance Administration has piers, piles, etc.) rather than on fill, in granted an exception under 44 CFR all cases in coastal high hazard areas § 60.6(b) (formerly 24 CFR 1910.6(b)), or and elsewhere, where practicable. the community has granted a variance (8) To minimize the effect of floods which the Regional Director deter- on human health, safety and welfare, mines is consistent with 44 CFR 60.6(a) the Agency shall: (formerly 24 CFR 1910.6(a)). In a com- (i) Where appropriate, integrate all of munity which does not have a FIRM in its proposed actions in floodplains into effect, FEMA may approve a variance existing flood warning and prepared- from the standards of paragraphs ness plans and ensure that available (d)(3)(i), (ii), and (iii) of this section, flood warning time is reflected;

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(ii) Facilitate adequate access and (A) Elevation of the structure (bot- egress to and from the site of the pro- tom of lowest floor beam) in relation to posed action; and the Base Flood Elevation including (iii) Give special consideration to the wave height; unique hazard potential in flash flood, (B) Distance of the structure from rapid-rise or tsunami areas. the shoreline; (9) In the replacement of building (C) Dune protection and other envi- contents, materials and equipment, the ronmental factors; Regional Director shall require as ap- (D) Description of the building sup- propriate, disaster proofing of the port system; and building and/or elimination of such fu- (E) Other relevant building details. ture losses by relocation of those build- Adequate completion of the ‘‘V-Zone ing contents, materials and equipment Risk Factor Rating Form’’ is sufficient outside or above the base floodplain or for FEMA to determine whether a rate the 500-year floodplain for critical ac- adjustment is appropriate. The form is tions. available from and applications for (e) In the implementation of the Na- rate adjustments should be submitted tional Flood Insurance Program. (1) The to: Federal Insurance Administration shall make identification of all coastal high National Flood Insurance Program hazard areas a priority; Attention: V-Zone Underwriting Specialist 9901–A George Palmer Highway (2) Beginning October 1, 1981, the Lanham, MD 20706 Federal Insurance Administration of FEMA may only provide flood insur- Pending a determination on a rate ad- ance for new construction or substan- justment, insurance will be issued at tial improvements in a coastal high the class rate. If the rate adjustment is hazard area if: granted, a refund of the appropriate (i) Wave heights have been des- portion of the premium will be made. ignated for the site of the structure ei- Unless a property owner is seeking an ad- ther by the Director of FEMA based justment of the rate prescribed by FEMA– upon data generated by FEMA or by FIA, this information need not be sub- another source, satisfactory to the Di- mitted. rector; and (ii) FIA shall notify communities (ii) The structure is rated by FEMA– with coastal high hazard areas and fed- FIA based on a system which reflects erally related lenders in such commu- the capacity to withstand the effects of nities, of the provisions of this para- the 100-year frequency flood including, graph. Notice to the lenders may be ac- but not limited to, the following fac- complished by the Federal instrumen- tors: talities to which the lenders are re- (A) Wave heights; lated. (B) The ability of the structure to (4) In any case in which the Regional withstand the force of waves. Director has been, pursuant to (3)(i) FEMA shall accept and take § 9.11(d)(1), precluded from providing as- fully into account information sub- sistance for a new or substantially im- mitted by a property owner indicating proved structure in a floodway, FIA that the rate for a particular structure may not provide a new or renewed pol- is too high based on the ability of the icy of flood insurance for that struc- structure to withstand the force of ture. waves. In order to obtain a rate adjust- (f) Restore and preserve. (1) For any ment, a property owner must submit to action taken by the Agency which af- FEMA specific information regarding fects the floodplain or wetland and the structure and its immediate envi- which has resulted in, or will result in, ronment. Such information must be harm to the floodplain or wetland, the certified by a registered professional Agency shall act to restore and pre- architect or engineer who has demon- serve the natural and beneficial values strable experience and competence in served by floodplains and wetlands. the fields of foundation, soils, and (2) Where floodplain or wetland val- structural engineering. Such informa- ues have been degraded by the proposed tion should include: action, the Agency shall identify,

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evaluate and implement measures to (b), and (c) of this section. Based on an restore the values. assessment of the following factors, the (3) If an action will result in harm to requirement for final notice may be or within the floodplain or wetland, the met in a cumulative manner: Agency shall design or modify the ac- (1) Scale of the action; tion to preserve as much of the natural (2) Potential for controversy; and beneficial floodplain and wetland (3) Degree of public need; values as is possible. (4) Number of affected agencies and [45 FR 59526, Sept. 9, 1980, as amended at 46 individuals; FR 51752, Oct. 22, 1981; 48 FR 44543, Sept. 29, (5) Its anticipated potential impact; 1983; 49 FR 33879, Aug. 27, 1984; 49 FR 35584, and Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985] (6) Similarity of the actions, i.e., to EFFECTIVE DATE NOTE: At 45 FR 79070, Nov. the extent that they are susceptible of 28, 1980, § 9.11(e)(4) was temporarily sus- common descriptions and assessments. pended until further notice. When a damaged structure or facility § 9.12 Final public notice. is already being repaired by the State or local government at the time of the If the Agency decides to take an ac- Damage Survey Report, the require- tion in or affecting a floodplain or wet- ments of Steps 2 and 7 (§§ 9.8 and 9.12) land, it shall provide the public with a may be met by a single notice. Such statement of its final decision and notice shall contain all the informa- shall explain the relevant factors con- tion required by both sections. sidered by the Agency in making this (e) The final notice shall include the determination. following: (a) In addition, those sent notices (1) A statement of why the proposed under § 9.8 shall also be provided the action must be located in an area af- final notice. fecting or affected by a floodplain or a (b) For actions for which an environ- wetland; mental impact statement is being prepared, the FEIS is adequate to con- (2) A description of all significant stitute final notice in all cases except facts considered in making this deter- where: mination; (1) Significant modifications are (3) A list of the alternatives consid- made in the FEIS after its initial pub- ered; lication; (4) A statement indicating whether (2) Significant modifications are the action conforms to applicable state made in the development plan for the and local floodplain protection stand- proposed action; or ards; (3) Significant new information be- (5) A statement indicating how the comes available in the interim between action affects or is affected by the issuance of the FEIS and implementa- floodplain and/or wetland, and how tion of the proposed action. mitigation is to be achieved; If any of these situations develop, the (6) Identification of the responsible Agency shall prepare a separate final official or organization for implemen- notice that contains the contents of tation and monitoring of the proposed paragraph (e) of this section and shall action, and from whom further infor- make it available to those who re- mation can be obtained; and ceived the FEIS. A minimum of 15 days (7) A map of the area or a statement shall, without good cause shown, be al- that such map is available for public lowed for comment on the final notice. inspection, including the location at (c) For actions for which an environ- which such map may be inspected and mental assessment was prepared, the a telephone number to call for informa- Notice of No Significant Impact is ade- tion. quate to constitute final public notice, (f) After providing the final notice, if it includes the information required the Agency shall, without good cause under paragraph (e) of this section. shown, wait at least 15 days before car- (d) For all other actions, the finding rying out the action. shall be made in a document separate [45 FR 59526, Sept. 9, 1980, as amended at 48 from those described in paragraphs (a), FR 29318, June 24, 1983]

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§ 9.13 Particular types of temporary shall be substituted for the provisions housing. of § 9.11(d) for mobile homes: (a) The purpose of this section is to (i) No mobile home or readily fab- set forth the procedures whereby the ricated dwelling may be placed on a Agency will provide certain specified private or commercial site unless it is types of temporary housing. elevated to the fullest extent prac- (b) Prior to providing the types of ticable up to the base flood level and temporary housing enumerated in adequately anchored. paragraph (c) of this section, the Agen- (ii) No mobile home or readily fab- cy shall comply with the provisions of ricated dwelling may be placed if such this section. For all temporary housing placement is inconsistent with the cri- not enumerated below, the full 8-step teria of the National Flood Insurance process (see § 9.6) applies. Program (44 CFR part 59 et seq.) or any more restrictive Federal, State or local (c) The following temporary housing floodplain management standard. Such actions are subject to the provisions of standards may require elevation to the this section and not the full 8-step base flood level in the absence of a process: variance. (1) [Reserved] (iii) Mobile homes shall be elevated (2) Placing a mobile home or readily on open works (walls, columns, piers, fabricated dwelling on a private or piles, etc.) rather than on fill where commercial site, but not a group site. practicable. (d) The actions set out in paragraph (iv) To minimize the effect of floods (c) of this section are subject to the fol- on human health, safety and welfare, lowing decision-making process: the Agency shall: (1) The temporary housing action (A) Where appropriate, integrate all shall be evaluated in accordance with of its proposed actions in placing mo- the provisions of § 9.7 to determine if it bile homes for temporary housing in is in or affects a floodplain or wetland. floodplains into existing flood warning (2) No mobile home or readily fab- and preparedness plans and ensure that ricated dwelling may be placed on a available flood warning time is re- private or commercial site in a flected; floodway or coastal high hazard area. (B) Provide adequate access and (3) An individual or family shall not egress to and from the proposed site of be housed in a floodplain or wetland the mobile home; and unless the Regional Director has com- (C) Give special consideration to the plied with the provisions of § 9.9 to de- unique hazard potential in flash flood termine that such site is the only prac- and rapid-rise areas. ticable alternative. The following fac- (5) FEMA shall comply with Step 2 tors shall be substituted for the factors Early Public Notice (§ 9.8(c)) and Step 7 in § 9.9 (c) and (e) (2) through (4): Final Public Notice (§ 9.12). In pro- (i) Speedy provision of temporary viding these notices, the emergency na- housing; ture of temporary housing shall be (ii) Potential flood risk to the tem- taken into account. porary housing occupant; (e) FEMA shall not sell or otherwise (iii) Cost effectiveness; dispose of mobile homes or other read- (iv) Social and neighborhood pat- ily fabricated dwellings which would be terns; located in floodways or coastal high (v) Timely availability of other hous- hazard areas. FEMA shall not sell or ing resources; and otherwise dispose of mobile homes or (vi) Potential harm to the floodplain other readily fabricated dwellings or wetland. which would be located in floodplains (4) An individual or family shall not or wetlands unless there is full compli- be housed in a floodplain or wetland ance with the 8-step process. Given the (except in existing resources) unless vulnerability of mobile homes to flood- the Regional Director has complied ing, a rejection of a non-floodplain lo- with the provisions of § 9.11 to mini- cation alternative and of the no-action mize harm to and within floodplains alternative shall be based on (1) a com- and wetlands. The following provisions pelling need of the family or individual

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to buy a mobile home for permanent through floodproofing and restoration housing, and (2) a compelling require- of natural values where improved prop- ment to locate the unit in a floodplain. erty is involved; Further, FEMA shall not sell or other- (6) Reevaluate the proposal to dispose wise dispose of mobile homes or other of the property in light of its exposure readily fabricated dwellings in a flood- to the flood hazard and its natural val- plain unless they are elevated at least ues-related impacts, in accordance to the level of the 100-year flood. The with § 9.9. This analysis shall focus on Regional Director shall notify the As- whether it is practicable in light of the sociate Director for State and Local findings from §§ 9.10 and 9.11 to dispose Programs and Support of each instance where a floodplain location has been of the property, or whether it must be found to be the only practicable alter- retained. If it is determined that it is native for a mobile home sale. practicable to dispose of the property, this analysis shall identify the prac- [45 FR 59526, Sept. 9, 1980, as amended at 47 ticable alternative that best achieves FR 13149, Mar. 29, 1982; 49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985] all of the components of the Orders’ mitigation responsibility; § 9.14 Disposal of Agency property. (7) To the extent that it would de- (a) The purpose of this section is to crease the flood hazard to lives and set forth the procedures whereby the property, the Agency shall, wherever Agency shall dispose of property. practicable, dispose of the properties (b) Prior to its disposal by sale, lease according to the following priorities: or other means of disposal, property (i) Properties located outside the proposed to be disposed of by the Agen- floodplain; cy shall be reviewed according to the (ii) Properties located in the flood decision-making process set out in § 9.6 fringe; and of this part, as follows: (iii) Properties located in a floodway, (1) The property shall be evaluated in regulatory floodway or coastal high accordance with the provisions of § 9.7 hazard area. to determine if it affects or is affected (8) The Agency shall prepare and pro- by a floodplain or wetland; vide the public with a finding and pub- (2) The public shall be notified of the proposal and involved in the decision- lic explanation in accordance with making process in accordance with the § 9.12. provisions of § 9.8; (9) The Agency shall ensure that the (3) Practicable alternatives to dis- applicable mitigation requirements are posal shall be evaluated in accordance fully implemented in accordance with with the provisions of § 9.9. For dis- § 9.11. posals, this evaluation shall focus on (c) At the time of disposal, for all dis- alternative actions (conveyance for an posed property, the Agency shall ref- alternative use that is more consistent erence in the conveyance uses that are with the floodplain management and restricted under existing Federal, wetland protection policies set out in State and local floodplain management § 9.2 than the one proposed, e.g., open and wetland protection standards re- space use for park or recreational pur- lating to flood hazards and floodplain poses rather than high intensity uses), and wetland values. and on the ‘‘no action’’ option (retain the property); § 9.15 Planning programs affecting (4) Identify the potential impacts and land use. support associated with the disposal of The Agency shall take floodplain the property in accordance with § 9.10; (5) Identify the steps necessary to management into account when formu- minimize, restore, preserve and en- lating or evaluating any water and hance in accordance with § 9.11. For dis- land use plans. No plan may be ap- posals, this analysis shall address all proved unless it: four of these components of mitigation (a) Reflects consideration of flood where unimproved property is involved, hazards and floodplain management but shall focus on minimization and wetlands protection; and

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(b) Prescribes planning procedures to required to follow under the Orders, implement the policies and require- and applicants’ responsibilities under ments of the Orders and this regula- this regulation. tion. (b) Responsibilities of Applicants. Based upon the guidance provided by the § 9.16 Guidance for applicants. Agency under § 9.16, that guidance in- (a) The Agency shall encourage and cluded in the U.S. Water Resources provide adequate guidance to appli- Council’s Guidance for Implementing cants for agency assistance to evaluate E.O. 11988, and based upon the provi- the effects of their plans and proposals sions of the Orders and this regulation, in or affecting floodplains and wet- applicants for Agency assistance shall lands. recognize and reflect in their applica- (b) This shall be accomplished pri- tion: marily through amendment of all Agency instructions to applicants, e.g., (1) The Agency’s policy on floodplain program handbooks, contracts, applica- management and wetlands protection tion and agreement forms, etc., and as set out in § 9.2; also through contact made by agency (2) The decision-making process to be staff during the normal course of their used by the Agency in making the de- activities, to fully inform prospective termination of whether to provide the applicants of: requested assistance as set out in § 9.6; (1) The Agency’s policy on floodplain (3) The nature of the Orders’ prac- management and wetlands protection ticability analysis as set out in § 9.9; as set out in § 9.2; (4) The nature of the Orders’ mitiga- (2) The decision-making process to be tion responsibilities as set out in § 9.11; used by the Agency in making the de- (5) The nature of the Orders’ public termination of whether to provide the and involvement process as set out in required assistance as set out in § 9.6; §§ 9.8 and 9.12; and (3) The nature of the Orders’ prac- (6) The supplemental requirements ticability analysis as set out in § 9.9; (4) The nature of the Orders’ mitiga- for application for the lease or other tion responsibilities as set out in § 9.11; disposal of Agency-owned properties, as (5) The nature of the Orders’ public set out in § 9.13. notice and involvement process as set (c) Provision of supporting information. out in §§ 9.8 and 9.12; and Applicants for Agency assistance may (6) The supplemental requirements be called upon to provide supporting applicable to applications for the lease information relative to the various re- or other disposal of Agency owned sponsibilities set out in paragraph (b) properties set out in § 9.14. of this section as a prerequisite to the (c) Guidance to applicants shall be approval of their applications. provided where possible, prior to the (d) Approval of applications. Applica- time of application in order to mini- tions for Agency assistance shall be re- mize potential delays in process appli- viewed for the recognition and reflec- cation due to failure of applicants to tion of the provisions of this regulation recognize and reflect the provisions of in addition to the Agency’s existing ap- the Orders and this regulation. proval criteria. § 9.17 Instructions to applicants. § 9.18 Responsibilities. (a) Purpose. In accordance with Exec- utive Orders 11988 and 11990, the Fed- (a) Regional Directors’ responsibilities. eral executive agencies must respond Regional Directors shall, for all actions to a number of floodplain management falling within their respective jurisdic- and wetland protection responsibilities tions: before carrying out any of their activi- (1) Implement the requirements of ties, including the provision of Federal the Orders and this regulation. Any- financial and technical assistance. The where in §§ 9.2, 9.6 through 9.13, and 9.15 purpose of this section is to put appli- where a direction is given to the Agen- cants for Agency assistance on notice cy, it is the responsibility of the Re- concerning both the criteria that it is gional Director.

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(2) Consult with the General Counsel (iii) Which of these modifications are regarding any question of interpreta- to be included in program regulations tion concerning this regulation or the other than this one; and Orders. (iv) The steps being taken to prepare (b) Associate Directors’ responsibilities. and implement these modifications. Associate Directors/Administrators (3) Are in full compliance with the shall ensure that the offices/adminis- Orders’ provisions through the modi- trations under their jurisdiction: fication of their processes in accord- (1) Implement the requirements of ance with paragraphs (b) (1) and (2) of the Orders and this regulation. When a this section. decision of a Regional Director relat- (4) Prepare and submit to the Office ing to disaster assistance is appealed, of General Counsel reports to the Office the Associate Director for State and of Management and Budget in accord- Local Programs and Support may ance with section 2(b) of E.O. 11988 and make determinations under these regu- section 3 of E.O. 11990. If a proposed ac- lations on behalf of the Agency. tion is to be located in a floodplain or (2) Identify within ninety (90) days of wetland, any requests to the Office of the effective date of this regulation: Management and Budget for new au- (i) The modifications that are nec- thorizations or appropriations shall be essary to make their existing flood- accompanied by a report indicating plain management and wetlands pro- whether the proposed action is in ac- tection procedures adequate to meet cord with the Orders and these regula- the directives of the Orders; tions. (ii) Which of these modifications should be made a part of this regula- [45 FR 59526, Sept. 9, 1980, as amended at 49 tion; FR 33879, Aug. 27, 1984]

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APPENDIX A TO PART 9—DECISION-MAKING PROCESS FOR E.O. 11988

PART 10—ENVIRONMENTAL 10.13 Emergencies. CONSIDERATIONS 10.14 Flood plains and wetlands. AUTHORITY: 42 U.S.C. 4321 et seq.; E.O. 11514 Subpart A—General of March 7, 1970, 35 FR 4247, as amended by E. O. 11991 of March 24, 1977, 3 CFR, 1977 Comp., Sec. p. 123; Reorganization Plan No. 3 of 1978, 43 10.1 Background and purpose. FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 10.2 Applicability and scope. of March 31, 1979, 44 FR 19367, 3 CFR, 1979 10.3 Definitions. Comp., p. 376; E.O. 12148 of July 20, 1979, 44 10.4 Policy. FR 43239, 3 CFR, 1979 Comp., p. 412, as amended. Subpart B—Agency Implementing Procedures SOURCE: 45 FR 41142, June 18, 1980, unless otherwise noted. 10.5 Responsibilities. 10.6 Making or amending policy. 10.7 Planning. Subpart A—General 10.8 Determination of requirement for environmental review. § 10.1 Background and purpose. 10.9 Preparation of environmental assess- (a) This part implements the Council ments. 10.10 Preparation of environmental impact on Environmental Quality (CEQ) regu- statements. lations (National Environmental Pol- 10.11 Environmental information. icy Act Regulations, 43 FR 55978 (1978)) 10.12 Pre-implementation actions. and provides policy and procedures to

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enable Federal Emergency Manage- response and recovery and hazard miti- ment Agency (FEMA) officials to be in- gation and flood insurance, it does so formed of and take into account envi- in a manner consistent with national ronmental considerations when author- environmental policies. Care shall be izing or approving major FEMA actions taken to assure, consistent with other that significantly affect the environ- considerations of national policy, that ment in the United States. The Council all practical means and measures are on Environmental Quality Regulations used to protect, restore, and enhance implement the procedural provisions, the quality of the environment, to section 102(2), of the National Environ- avoid or minimize adverse environmental Policy Act of 1969, as amended mental consequences, and to attain the (hereinafter NEPA) (Pub. L. 91–190, 42 objectives of: U.S.C. 4321 et seq.), and Executive Order (1) Achieving use of the environment 11991, 42 FR 26967 (1977). without degradation, or undesirable (b) Section 1507.3, Council on Envi- ronmental Quality Regulations (Na- and unintended consequences; tional Environmental Policy Act Regu- (2) Preserving historic, cultural and lations, 43 FR 55978 (1978)) directs that natural aspects of national heritage Federal agencies shall adopt proce- and maintaining, wherever possible, an dures to supplement the CEQ regula- environment that supports diversity tions. This regulation provides detailed and variety of individual choice; FEMA implementing procedures to (3) Achieving a balance between re- supplement the CEQ regulations. source use and development within the (c) The provisions of this part must sustained carrying capacity of the eco- be read together with those of the CEQ system involved; and regulations and NEPA as a whole when (4) Enhancing the quality of renew- applying the NEPA process. able resources and working toward the maximum attainable recycling of de- § 10.2 Applicability and scope. pletable resources. The provisions of this part apply to (b) FEMA shall: the Federal Emergency Management (1) Assess environmental con- Agency, (hereinafter referred to as sequences of FEMA actions in accord- FEMA) including any office or admin- ance with §§ 10.9 and 10.10 of this part istration of FEMA, and the FEMA re- and parts 1500 through 1508 of the CEQ gional offices. regulations; § 10.3 Definitions. (2) Use a systematic, interdiscipli- nary approach that will ensure the in- (a) Regional Director means the Re- tegrated use of the natural and social gional Director of the Federal Emer- sciences, and environmental consider- gency Management Agency for the region in which FEMA is acting. ations, in planning and decisionmaking (b) The other terms used in this part where there is a potential for signifi- are defined in the CEQ regulations (40 cant environmental impact; CFR part 1508). (3) Ensure that presently unmeasured (c) Environmental Officer means the environmental amenities are consid- Chief, Public Assistance Division, Of- ered in the decisionmaking process; fice of Disaster Assistance Programs, (4) Consider reasonable alternatives State and Local Programs and Support to recommended courses of action in Directorate. any proposal that involves conflicts concerning alternative uses of re- [45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 50 FR 40006, Oct. 1, sources; and 1985] (5) Make available to States, counties, municipalities, institutions and § 10.4 Policy. individuals advice and information use- (a) FEMA shall act with care to as- ful in restoring, maintaining, and ensure that, in carrying out its respon- hancing the quality of the environ- sibilities, including disaster planning, ment.

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Subpart B—Agency Implementing (5) Publish the required notices in Procedures the FEDERAL REGISTER; (6) Provide assistance in the prepara- § 10.5 Responsibilities. tion of environmental assessments and (a) The Regional Directors shall, for impact statements and assign lead each action not categorically excluded agency responsibility when more than from this regulation and falling within one FEMA office or administration is their respective jurisdictions: involved; (1) Prepare an environmental assess- (7) Direct the preparation of environment and submit such assessment to mental documents for specific actions the Environmental Officer and the Of- when required; fice of General Counsel (OGC); (8) Comply with the requirements of (2) Prepare a finding of no significant this part when the Director of FEMA impact, or prepare an environmental promulgates regulations, procedures or impact statement; other issuances making or amending (3) Coordinate and provide informa- Agency policy; tion regarding environmental review (9) Provide, when appropriate, con- with applicants for FEMA assistance; solidated FEMA comments on draft (4) Prepare and maintain an adminis- and final impact statements prepared trative record for each proposal that is for the issuance of regulations and pro- determined to be categorically ex- cedures of other agencies; cluded from this regulation; (10) Review FEMA issuances that (5) Involve environmental agencies, have environmental implications; applicants, and the public to the extent (11) Maintain liaison with the Coun- practicable in preparing environmental cil on Environmental Quality, the En- assessments; vironmental Protection Agency, the (6) Prepare, as required, a supplement Office of Management and Budget, to either the draft or final environ- other Federal agencies, and State and mental impact statement; local groups, with respect to environ- (7) Circulate draft and final environmental analysis for FEMA actions af- mental impact statements; fecting the environment. (8) Ensure that decisions are made in (c) The Heads of the Office and Admin- accordance with the policies and proce- istrations of FEMA shall: dures of NEPA and this part, and pre- (1) Assess environmental con- pare a concise public record of such de- sequences of proposed and on-going cisions; programs within their respective orga- (9) Consider mitigating measures to nizational units; avoid or minimize environmental (2) Prepare and process environ- harm, and, in particular, harm to and mental assessments and environmental within floodplains and wetlands; and impact statements for all regulations, (10) Review and comment upon, as procedures and other issuances making appropriate, environmental assess- or amending program policy related to ments and impact statements of other actions which do not qualify for cat- Federal agencies and of State and local egorical exclusions; entities within their respective re- (3) Integrate environmental consider- gions. ations into their decisionmaking proc- (b) The Environmental Officer shall: esses; (1) Determine, on the basis of the en- (4) Ensure that regulations, proce- vironmental assessment whether an en- dures and other issuances making or vironmental impact statement is re- amending program policy are reviewed quired, or whether a finding of no sig- for consistency with the requirements nificant impact shall be prepared; of this part; (2) Review all proposed changes or (5) Designate a single point of con- additions to the list of categorical ex- tact for matters pertaining to this clusions; part; (3) Review all findings of no signifi- (6) Provide applicants for FEMA as- cant impact; sistance with technical assistance re- (4) Review all proposed draft and garding FEMA’s environmental review final environmental statements; process.

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(d) The Office of General Counsel of quest for lead agency determination to FEMA shall: the Environmental Officer; (1) Provide advice and assistance con- (1) The Environmental Officer will cerning the requirements of this part; determine lead agency responsibility (2) Review all proposed changes or among FEMA offices and administra- additions to the list of categorical ex- tion. clusions; (2) In those cases involving a FEMA (3) Review all findings of no signifi- office or administration and another cant impact; and Federal agency, the Environmental Of- (4) Review all proposed draft and ficer will attempt to resolve the dif- final environmental impact state- ferences. If unsuccessful, the Environ- ments. mental Officer will file the request [45 FR 41142, June 18, 1980, as amended at 47 with the Council on Environmental FR 13149, Mar. 29, 1982] Quality for determination. (c) Technical assistance to applicants. § 10.6 Making or amending policy. (1) Section 1501.2(d) of the CEQ regula- For all regulations, procedures, or tions requires agencies to provide for other issuances making or amending early involvement in actions which, policy, the head of the FEMA office or while planned by private applicants or administration establishing such pol- other non-Federal entities, require icy shall be responsible for application some form of Federal approval. To im- of this part to that action. This does plement the requirements of § 1501.2(d), not apply to actions categorically ex- (i) The heads of the FEMA offices and cluded. For all policy-making actions administration shall prepare where not categorically excluded, the head of practicable, generic guidelines describ- the office or administration shall coming the scope and level of environ- ply with the requirements of this part. mental information required from ap- Thus, for such actions, the office or ad- plicants as a basis for evaluating their ministration head shall assume the re- proposed actions, and make these sponsibilities that a Regional Director guidelines available upon request. assumes for a FEMA action in his/her (ii) The Regional Director shall pro- respective region. For such policy- vide such guidance on a project-by- making actions taken by the Director project basis to applicants seeking as- of FEMA, the Environmental Officer sistance from FEMA. shall assume the responsibilities that a (iii) Upon receipt of an application Regional Director assumes for a FEMA for agency approval, or notification action in his/her respective region. that an application will be filed, the [45 FR 41142, June 18, 1980, as amended at 47 Regional Director shall consult as re- FR 13149, Mar. 29, 1982] quired with other appropriate parties to initiate and coordinate the nec- § 10.7 Planning. essary environmental analyses. (a) Early planning. The Regional Di- (2) To facilitate compliance with the rector shall integrate the NEPA proc- requirements of paragraph (a) of this ess with other planning at the earliest section, applicants and other non-Fed- possible time to ensure that planning eral entities are expected to: decisions reflect environmental values, (i) Contact the Regional Director as to avoid delays later in the process, early as possible in the planning proc- and to head off potential conflicts. ess for guidance on the scope and level (b) Lead agency. To determine the of environmental information required lead agency for policy-making in which to be submitted in support of their ap- more than one FEMA office or adminis- plication; tration is involved or any action in (ii) Conduct any studies which are which another Federal agency is in- deemed necessary and appropriate by volved, FEMA offices and administra- FEMA to determine the impact of the tions shall apply criteria defined in proposed action on the human environ- § 1501.5 of the CEQ regulation. If there ment; is disagreement, the FEMA offices and/ (iii) Consult with appropriate Fed- or administrations shall forward a re- eral, regional, State, and local agencies

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and other potentially interested par- (i) If an action will result in an ex- ties during preliminary planning stages tensive change in land use or the com- to ensure that all environmental fac- mitment of a large amount of land; tors are identified; (ii) If an action will result in a land (iv) Submit applications for all Fed- use change which is incompatible with eral, regional, State, and local approv- the existing or planned land use of the als as early as possible in the planning surrounding area; process; (iii) If many people will be affected; (v) Notify the Regional Director as (iv) If the environmental impact of early as possible of all other Federal, the project is likely to be controver- regional, State, local, and Indian tribe sial; actions required for project completion (v) If an action will affect, in large so that FEMA may coordinate all Fed- measure, wildlife populations and their eral environmental reviews; and habitats, important natural resources, (vi) Notify the Regional Director of floodplains, wetlands, estuaries, beach- all known parties potentially affected es, dunes, unstable soils, steep slopes, by or interested in the proposed action. aquifer recharge areas, or delicate or [45 FR 41142, June 18, 1980, as amended at 47 rare ecosystems, including endangered FR 13149, Mar. 29, 1982] species; (vi) If an action will result in a major § 10.8 Determination of requirement for environmental review. adverse impact upon air or water quality; The first step in applying the NEPA (vii) If an action will adversely affect process is to determine whether to pre- a property listed on the National Reg- pare an environmental assessment or ister of Historic Places or eligible for an environmental impact statement. listing on the Register if, after con- Early determination will help ensure sultation with the Advisory Council on that necessary environmental docu- Historic Preservation an environ- mentation is prepared and integrated mental assessment is not deemed suffi- into the decision-making process. En- cient; vironmental impact statements will be (viii) If an action is one of several ac- prepared for all major Agency actions tions underway or planned for an area (see 40 CFR 1508.18) significantly (see 40 and the cumulative impact of these CFR 1508.27) affecting the quality of projects is considered significant in the human environment. terms of the above criteria; (a) In determining whether to prepare an environmental impact state- (ix) If an action holds potential for ment (EIS) the Regional Director will threat or hazard to the public; or first determine whether the proposal is (x) If an action is similar to previous one which: actions determined to require an envi- (1) Normally requires an environ- ronmental impact statement. mental impact statement; or (3) In any case involving an action (2) Normally does not require either that normally does require an environ- an environmental impact statement or mental impact statement, the Regional an environmental assessment (categor- Director may prepare an environ- ical exclusion). mental assessment to determine if an (b) Actions that normally require an environmental impact statement is re- EIS. (1) In some cases, it will be readily quired. apparent that a proposed action will (c) Statutory exclusions. The following have significant impact on the environ- actions are statutorily excluded from ment. In that event, the Regional Di- NEPA and the preparation of environ- rector will, pursuant to § 10.9(g) of this mental impact statements and environ- part, submit the notice of preparation mental assessments by section 316 of of an environmental impact statement the Robert T. Stafford Disaster Relief to the Environmental Officer. and Emergency Assistance Act (Staf- (2) To assist in determining those ac- ford Act), as amended, 42 U.S.C. 5159; tions that normally do require an envi- (1) Action taken or assistance pro- ronmental impact statement, the fol- vided under sections 402, 403, 407, or 502 lowing criteria apply: of the Stafford Act; and

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(2) Action taken or assistance pro- tions to enforce Federal, state, or local vided under section 406 of the Stafford codes, standards or regulations; Act that has the effect of restoring fa- (v) Training activities and both cilities substantially as they existed training and operational exercises uti- before a major disaster or emergency. lizing existing facilities in accordance (d) Categorical Exclusions (CATEXs). with established procedures and land CEQ regulations at 40 CFR 1508.4 pro- use designations; vide for the categorical exclusion of ac- (vi) Procurement of goods and serv- tions that do not individually or cumu- ices for support of day-to-day and latively have a significant impact on emergency operational activities, and the human environment and for which, the temporary storage of goods other therefore, neither an environmental as- than hazardous materials, so long as sessment nor an environmental impact storage occurs on previously disturbed statement is required. Full implemen- land or in existing facilities; tation of this concept will help FEMA (vii) The acquisition of properties avoid unnecessary or duplicate effort and the associated demolition/removal and concentrate resources on signifi- [see paragraph (d)(2)(xii) of this sec- cant environmental issues. tion] or relocation of structures [see (1) Criteria. The criteria used for de- paragraph (d)(2)(xiii) of this section] termination of those categories of ac- under any applicable authority when tions that normally do not require ei- the acquisition is from a willing seller, ther an environmental impact state- the buyer coordinated acquisition plan- ment or an environmental assessment ning with affected authorities, and the include: acquired property will be dedicated in (i) Minimal or no effect on environ- perpetuity to uses that are compatible mental quality; with open space, recreational, or wet- (ii) No significant change to existing land practices. environmental conditions; and (viii) Acquisition or lease of existing (iii) No significant cumulative envi- facilities where planned uses conform ronmental impact. to past use or local land use require- (2) List of exclusion categories. FEMA ments; has determined that the following cat- (ix) Acquisition, installation, or oper- egories of actions have no significant ation of utility and communication effect on the human environment and systems that use existing distribution are, therefore, categorically excluded systems or facilities, or currently used from the preparation of environmental infrastructure rights-of-way; impact statements and environmental (x) Routine maintenance, repair, and assessments except where extraor- grounds-keeping activities at FEMA dinary circumstances as defined in facilities; paragraph (d)(5) of this section exist. If (xi) Planting of indigenous vegeta- the action is of an emergency nature as tion; described in § 316 of the Stafford Act (42 (xii) Demolition of structures and U.S.C. 5159), it is statutorily excluded other improvements or disposal of and is noted with [SE]. uncontaminated structures and other (i) Administrative actions such as improvements to permitted off-site lo- personnel actions, travel, procurement cations, or both; of supplies, etc., in support of normal (xiii) Physical relocation of indi- day-to-day activities and disaster re- vidual structures where FEMA has no lated activities; involvement in the relocation site se- (ii) Preparation, revision, and adop- lection or development; tion of regulations, directives, manu- (xiv) Granting of community-wide als, and other guidance documents re- exceptions for floodproofed residential lated to actions that qualify for cat- basements meeting the requirements of egorical exclusions; 44 CFR 60.6(c) under the National Flood (iii) Studies that involve no commit- Insurance Program; ment of resources other than man- (xv) Repair, reconstruction, restora- power and associated funding; tion, elevation, retrofitting, upgrading (iv) Inspection and monitoring ac- to current codes and standards, or re- tivities, granting of variances, and ac- placement of any facility in a manner

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that substantially conforms to the pre- (F) Individual and Family Grant Pro- existing design, function, and location; grams (§ 411), except for grants that [SE, in part] will be used for restoring, repairing or (xvi) Improvements to existing facili- building private bridges, or purchasing ties and the construction of small scale mobile homes or other readily fab- hazard mitigation measures in existing ricated dwellings; developed areas with substantially (G) Food Coupons and Distribution completed infrastructure, when the im- (§ 412); mediate project area has already been (H) Food Commodities (§ 413); disturbed, and when those actions do (I) Legal Services (§ 415); not alter basic functions, do not exceed (J) Crisis Counseling Assistance and capacity of other system components, Training (§ 416); or modify intended land use; provided (K) Community Disaster Loans the operation of the completed project (§ 417); will not, of itself, have an adverse ef- (L) Emergency Communications fect on the quality of the human envi- (§ 418); ronment; (M) Emergency Public Transpor- (xvii) Actions conducted within entation (§ 419); closed facilities where all airborne (N) Fire Management Assistance emissions, waterborne effluent, exter- Grants; and nal radiation levels, outdoor noise, and (O) Federal Emergency Assistance solid and bulk waste disposal practices (§ 502) [SE]. comply with existing Federal, state, (3) Extraordinary circumstances. If ex- and local laws and regulations; traordinary circumstances exist within (xviii) The following planning and ad- an area affected by an action, such ministrative activities in support of that an action that is categorically ex- emergency and disaster response and cluded from NEPA compliance may recovery: have a significant adverse environ- (A) Activation of the Emergency mental impact, an environmental as- Support Team and convening of the sessment shall be prepared. Extraor- Catastrophic Disaster Response Group dinary circumstances that may have a at FEMA headquarters; significant environmental impact in- (B) Activation of the Regional Oper- clude: ations Center and deployment of the (i) Greater scope or size than nor- Emergency Response Team, in whole or mally experienced for a particular cat- in part; egory of action; (C) Deployment of Urban Search and (ii) Actions with a high level of pub- Rescue teams; lic controversy; (D) Situation Assessment including (iii) Potential for degradation, even ground and aerial reconnaissance; though slight, of already existing poor (E) Information and data gathering environmental conditions; and reporting efforts in support of (iv) Employment of unproven tech- emergency and disaster response and nology with potential adverse effects recovery and hazard mitigation; and or actions involving unique or un- (xix) The following emergency and known environmental risks; disaster response, recovery and hazard (v) Presence of endangered or threat- mitigation activities under the Staf- ened species or their critical habitat, ford Act: or archaeological, cultural, historical (A) General Federal Assistance (§ 402); or other protected resources; [SE] (vi) Presence of hazardous or toxic (B) Essential Assistance (§ 403); [SE] substances at levels which exceed Fed- (C) Debris Removal (§ 407) [SE] eral, state or local regulations or (D) Temporary Housing (§ 408), except standards requiring action or atten- locating multiple mobile homes or tion; other readily fabricated dwellings on (vii) Actions with the potential to af- sites, other than private residences, fect special status areas adversely or not previously used for such purposes; other critical resources such as wet- (E) Unemployment Assistance (§ 410); lands, coastal zones, wildlife refuge and

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wilderness areas, wild and scenic riv- (e) Actions that normally require an en- ers, sole or principal drinking water vironmental assessment. When a proposal aquifers; is not one that normally requires an (viii) Potential for adverse effects on environmental impact statement and health or safety; and does not qualify as a categorical exclu- (ix) Potential to violate a Federal, sion, the Regional Director shall pre- State, local or tribal law or require- pare an environmental assessment. ment imposed for the protection of the (f) Documentation. The Regional Di- environment. rector will prepare and maintain an ad- (x) Potential for significant cumu- ministrative record of each proposal lative impact when the proposed action that is determined to be categorically is combined with other past, present excluded from the preparation of an en- and reasonably foreseeable future ac- vironmental impact statement or an tions, even though the impacts of the environmental assessment. proposed action may not be significant (g) Actions that normally require an en- by themselves. vironmental assessment. When a proposal (4) Documentation. The Regional Di- is not one that normally requires an rector will prepare and maintain an ad- environmental impact statement and ministrative record of each proposal does not qualify as a categorical exclu- that is determined to be categorically sion, the Regional Director shall pre- excluded from the preparation of an en- pare an environmental assessment. vironmental impact statement or an environmental assessment. [45 FR 41142, June 18, 1980, as amended at 46 (5) Revocation. The Regional Director FR 2049, Jan. 8, 1981; 46 FR 54346, Nov. 3, 1981; shall revoke a determination of cat- 47 FR 13149, Mar. 29, 1982; 52 FR 5285, Feb. 20, egorical exclusion and shall require a 1987; 59 FR 954, Jan. 7, 1994; 61 FR 4230, Feb. 5, 1996; 61 FR 10688, Mar. 15, 1996; 66 FR 57347, full environmental review if, subse- Nov. 14, 2001] quent to the granting an exclusion, the Regional Director determines that due § 10.9 Preparation of environmental to changes in the proposed action or in assessments. light of new findings, the action no longer meets the requirements for a (a) When to prepare. The Regional Di- categorical exclusion. rector shall begin preparation of an environmental assessment as early as (6) Changes to the list of exclusion cat- possible after the determination that egories. (i) The FEMA list of exclusion categories will be continually reviewed an assessment is required. The Re- and refined as additional categories are gional Director may prepare an envi- identified and experience is gained in ronmental assessment at any time to the categorical exclusion process. An assist planning and decision-making. office, directorate, or administration of (b) Content and format. The environ- FEMA may, at any time, recommend mental assessment is a concise public additions or changes to the FEMA list document to determine whether to pre- of exclusion categories. pare an environmental impact state- (ii) Offices, directorates, and admin- ment, aiding in compliance with NEPA istrations of FEMA are encouraged to when no EIS is necessary, and facili- develop additional categories of exclu- tating preparation of a statement when sions necessary to meet their unique one is necessary. Preparation of an en- operational and mission requirements. vironmental assessment generally will (iii) If an office, directorate, or ad- not require extensive research or ministration of FEMA proposes to lengthy documentation. The environ- change or add to the list of exclusion mental assessment shall contain brief categories, it shall first: discussion of the following: (A) Obtain the approval of the Envi- (1) Purpose and need for the proposed ronmental Officer and the Office of the action. General Counsel; and (2) Description of the proposed ac- (B) Publish notice of such proposed tion. change or addition in the FEDERAL (3) Alternatives considered. REGISTER at least 60 days before the ef- (4) Environmental impact of the pro- fective date of such change or addition. posed action and alternatives.

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(5) Listing of agencies and persons EIS to the Environmental Officer who consulted. shall publish such notice in the FED- (6) Conclusion of whether to prepare ERAL REGISTER. an environmental impact statement. (g) EIS determination of Regional Di- (c) Public participation. The Regional rector. The Regional Director may de- Director shall involve environmental cide on his/her own to prepare an envi- agencies, applicants, and the public, to ronmental impact statement. In such the extent practicable, in preparing en- case, the Regional Director shall for- vironmental assessments. In deter- ward a notice of intent to prepare the mining ‘‘to the extent practicable,’’ the EIS to the Environmental Officer who Regional Director shall consider: shall publish such notice in the FED- (1) Magnitude of the proposal; ERAL REGISTER. The notice of intent (2) Likelihood of public interest; shall be published before initiation of (3) Need to act quickly; the scoping process. (4) Likelihood of meaningful public [45 FR 41142, June 18, 1980, as amended at 47 comment; FR 13149, Mar. 29, 1982] (5) National security classification issues; § 10.10 Preparation of environmental (6) Need for permits; and impact statements. (7) Statutory authority of environ- (a) Scoping. After determination that mental agency regarding the proposal. an environmental impact statement (d) When to prepare an EIS. The Re- will be prepared and publication of the gional Director shall prepare an envi- notice of intent, the Regional Director ronmental impact statement for all will initiate the scoping process in ac- major Agency actions significantly af- cordance with § 1501.7 of the CEQ regu- fecting the quality of the human envi- lations. ronment. The test of what is a ‘‘sig- (b) Preparation. Based on the scoping nificant’’ enough impact to require an process, the Regional Director will EIS is found in the CEQ regulations at begin preparation of the environmental 40 CFR 1508.27. impact statement. Detailed procedures (e) Finding of No Significant Impact. If for preparation of the environmental the Regional Director determines on impact statement are provided in part the basis of the environmental assess- 1502 of the CEQ regulations. ment not to prepare an environmental (c) Supplemental Environmental Impact impact statement, the Regional Direc- Statements. The Regional Director may tor shall prepare a finding of no signifi- at any time supplement a draft or final cant impact in accordance with 40 CFR environmental impact statement. The 1501.4(e) of the CEQ regulations. The Regional Director shall prepare a sup- assessment and the finding shall be plement to either the draft or final en- submitted to the Environmental Offi- vironmental impact statement when cer and the Office of General Counsel required under the criteria set forth in (OGC) for approval. If Environmental § 1502.9(2). The Regional Director will Officer and OGC approval is obtained, prepare, circulate, and file a supple- the Regional Director shall then make ment to a statement in the same fash- the finding of no significant impact ion (exclusive of scoping) as a draft or available to the public as specified in final statement and will introduce the § 1506.6 of the CEQ regulations. A find- supplement into their formal adminis- ing of no significant impact is not re- trative record. quired when the decision not to prepare (d) Circulation of Environmental Impact an environmental impact statement is Statements. The Regional Director shall based on a categorical exclusion. circulate draft and final environmental (f) Environmental Officer or OGC Dis- impact statements as prescribed in allowance. If the Environmental Officer § 1502.19 of CEQ regulations. Prior to or OGC disagrees with the finding of no signing off on a draft or final impact significant impact, the Regional Direc- statement, the Regional Director shall tor shall prepare an environmental im- obtain the approval of the Environ- pact statement. Prior to preparation of mental Officer and OGC. an EIS, the Regional Director shall for- [45 FR 41142, June 18, 1980, as amended at 47 ward a notice of intent to prepare the FR 13149, Mar. 29, 1982]

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§ 10.11 Environmental information. gress, shall prepare a concise public Interested persons may contact the record of that decision. The record of Environmental Officer or the Regional decision is not intended to be an exten- Director for information regarding sive, detailed document for the purpose FEMA’s compliance with NEPA. of justifying the decision. Rather it is a concise document that sets forth the [45 FR 41142, June 18, 1980, as amended at 47 decision and describes the alternatives FR 13149, Mar. 29, 1982] and relevant factors considered as spec- § 10.12 Pre-implementation actions. ified in 40 CFR 1505.2. The record of decision will normally be less than three (a) Decision-making. The Regional Di- pages in length. rector shall ensure that decisions are made in accordance with the policies (c) Mitigation. Throughout the NEPA and procedures of the Act and that the process, the Regional Director shall NEPA process is integrated into the de- consider mitigating measures to avoid cision-making process. Because of the or minimize environmental harm and, diversity of FEMA, it is not feasible to in particular, harm to or within flood describe in this part the decision-mak- plains and wetlands. Mitigation meas- ing process for each of the various ures or programs will be identified in FEMA programs. Proposals and actions the environmental impact statement may be initiated at any level. Simi- and made available to decision-makers. larly, review and approval authority Mitigation and other conditions estab- may be exercised at various levels de- lished in the environmental impact pending on the nature of the action, statement or during its review and available funding, and statutory au- committed as part of the decision shall thority. FEMA offices and administra- be implemented by the Regional Direc- tions shall provide further guidance, tor. commensurate with their programs and (d) Monitoring. If a Regional Director organization, for integration of envi- determines that monitoring is applica- ronmental considerations into the de- ble for established mitigation, a moni- cision-making process. The Regional toring program will be adopted to as- Director shall: sure the mitigation measures are ac- (1) Consider all relevant environ- complished. The Regional Director mental documents in evaluating proposals for Agency action; shall provide monitoring information, (2) Make all relevant environmental upon request, as specified in 40 CFR documents, comments, and responses 1505.3. This does not, however, include part of the record in formal rule- standing or blanket requests for peri- making or adjudicatory proceedings; odic reporting. (3) Ensure that all relevant environmental documents, comments and re- § 10.13 Emergencies. sponses accompany the proposal In the event of an emergency, the Re- through existing Agency review proc- gional Director may be required to esses; take immediate action with significant (4) Consider only those alternatives environmental impact. The Regional encompassed by the range of alter- Director shall notify the Environ- natives discussed in the relevant envi- mental Officer of the emergency action ronmental documents when evaluating at the earliest possible time so that the proposals for Agency action; Environmental Officer may consult (5) Where an EIS has been prepared, with the Council on Environmental consider the specific alternatives ana- Quality. In no event shall any Regional lyzed in the EIS when evaluating the Director delay an emergency action proposal which is the subject of the necessary to the preservation of human EIS. life for the purpose of complying with (b) Record of decision. In those cases the provision of this directive or the requiring environmental impact state- CEQ regulations. ments, the Regional Director at the time of his/her decision, or if appro- [45 FR 41142, June 18, 1980, as amended at 47 priate, his/her recommendation to Con- FR 13149, Mar. 29, 1982]

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§ 10.14 Flood plains and wetlands. 11.48 Interest, penalties, and administrative charges. For any action taken by FEMA in a 11.49 Omission not a defense. flood plain or wetland, the provisions 11.50 Standards for compromise of debts. of this part are supplemental to, and 11.51 Standards for suspension or termi- not instead of, the provisions of the nation of collection. FEMA regulation implementing Execu- 11.52 Referral of delinquent debtors to con- tive Order 11988, Flood Plain Manage- sumer reporting agencies. ment, and Executive Order 11990, Pro- 11.53 Securing debtor addresses from the Department of Treasury. tection of Wetlands (44 CFR part 9). 11.54 Contracts with debt collection agencies. PART 11—CLAIMS 11.55 Referral to GAO or Justice Depart- ment. Subpart A—General 11.56 Analysis of costs. 11.57 Automation. Sec. 11.58 Prevention of overpayments, delin- 11.1 General collection standards. quencies, and defaults. 11.2 Delegations of authority. 11.59 Office of General Counsel. 11.60 Sale of debts due the United States Subpart B—Administrative Claims Under arising under programs administered by Federal Tort Claims Act the Agency. 11.61 Referral of delinquent debts to Depart- 11.10 Scope of regulation. ment of the Treasury for offsets against 11.11 Administrative claim; when presented; tax refunds. appropriate FEMA office. 11.62 Administrative charges incurred in re- 11.12 Administrative claim; who may file. ferrals for tax refund offset. 11.13 Investigations. 11.63 Notice to debtor before tax refund off- 11.14 Administrative claim; evidence and in- set. formation to be submitted. 11.64 Review within Federal Emergency 11.15 Authority to adjust, determine, com- Management Agency. promise and settle. 11.65 Stay of tax refund offset action. 11.16 Limitations on authority. 11.17 Referral to Department of Justice. Subpart D—Personnel Claims Regulations 11.18 Final denial of claim. 11.19 Action on approved claim. 11.70 Scope and purpose. 11.71 Claimants. Subpart C—Collection of Debts by the 11.72 Time limitations. Government Under the Debt Collec- 11.73 Allowable claims. tion Act of 1982 11.74 Claims not allowed. 11.75 Claims involving carriers and insurers. 11.30 Scope of regulations. 11.76 Claims procedures. 11.31 Adoption of joint standards. 11.77 Settlement of claims. 11.32 Subdivision and joining of debts. 11.78 Computation of amount of award. 11.33 Authority of offices to attempt collec- 11.79 Attorney’s fees. tion of debts. AUTHORITY: 31 U.S.C. 3701 et seq. 11.34 Referral of debts to the Chief Finan- cial Officer, Federal Emergency Manage- SOURCE: 45 FR 15930, Mar. 12, 1980, unless ment Agency. otherwise noted. 11.35 Authority of offices to compromise debts or suspend or terminate collection Subpart A—General action. 11.36 Debt collection files. § 11.1 General collection standards. 11.37 [Reserved] 11.38 Annual reports to the Director, Office The general standards and procedures of Management and Budget, and the Sec- governing the collection, compromise, retary of the Treasury. termination and referral to the Depart- 11.40 Records retention. ment of Justice of claims for money 11.41 Suspension or revocation of eligi- and property that are prescribed in the bility. regulations issued jointly by the Gen- 11.42 Demand for payment of debts. eral Accounting Office and the Depart- 11.43 Collection by administrative offset. 11.44 [Reserved] ment of Justice pursuant to the Fed- 11.45 Collection by salary offset. eral Claims Collection Act of 1966 (4 11.46 Liquidation of collateral. CFR part 101 et seq.), apply to the ad- 11.47 Collection in installments. ministrative claim collection activities

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of the Federal Emergency Management (b) Except as provided in paragraph Agency (FEMA). (c) of this section, a claimant shall mail or deliver his or her claim to the § 11.2 Delegations of authority. Office of General Counsel, Federal Any and all claims that arise under Emergency Management Agency, subchapter III of chapter 83, chapter 87 Washington, DC, 20472. and chapter 88 of title 5, the United (c) When a claim is for $200 or less, States Code, the Retired Federal Em- does not involve a personal injury, and ployees Health Benefits Act (74 Stat. involves a FEMA regional employee, 849), the Panama Canal Construction the claimant shall mail or deliver the Annuity Act (58 Stat. 257), and the claim to the Director of the FEMA Re- Lighthouse Service Widow’s Annuity gional Office in which is employed the Act (64 Stat. 465) shall be referred to FEMA employee whose negligence or the Director of the Bureau of Retire- wrongful act or omission is alleged to ment and Insurance, Office of Per- have caused the loss or injury com- sonnel Management, for handling. The plained of. The addresses of the Re- General Counsel, FEMA shall act on all gional Offices of FEMA are set out in other claims against FEMA for money part 2 of this chapter. and property. (d) A claim presented in compliance with paragraph (a) of this section may be amended by the claimant at any Subpart B—Administrative Claims time prior to final FEMA action or Under Federal Tort Claims Act prior to the exercise of the claimant’s option under 28 U.S.C. 2675(a). Amend- § 11.10 Scope of regulation. ments shall be submitted in writing This regulation applies to claims as- and signed by the claimant or his or serted under the Federal Tort Claims her duly authorized agent or legal rep- Act against the Federal Emergency resentative. Upon the timely filing of Management Agency (FEMA). It does an amendment to a pending claim, not include any contractor with FEMA shall have six months in which FEMA. to make a final disposition of the claim as amended and the claimant’s option § 11.11 Administrative claim; when under 28 U.S.C. 2675(a) shall not accrue presented; appropriate FEMA of- until six months after the filing of an fice. amendment. (a) For the purpose of this part, and [45 FR 15930, Mar. 12, 1980, as amended at 48 the provisions of the Federal Tort FR 6711, Feb. 15, 1983; 49 FR 33879, Aug. 27, Claims Act a claim is deemed to have 1984] been presented when FEMA receives, at a place designated in paragraph (b) or § 11.12 Administrative claim; who may (c) of this section, an executed ‘‘Claim file. for Damage or Injury,’’ Standard Form (a) A claim for injury to or loss of 95, or other written notification of an property may be presented by the incident, accompanied by a claim for owner of the property interest which is money damages in a sum certain for in- the subject of the claim, his or her au- jury to or loss of property, for personal thorized agent, or legal representative. injury, or for death alleged to have oc- (b) A claim for personal injury may curred by reason of the incident. A be presented by the injured person or, claim which should have been pre- his or her authorized agent or legal sented to FEMA, but which was mis- representative. takenly addressed to or filed with an- (c) A claim based on death may be other Federal agency, is deemed to be presented by the executor or adminis- presented to FEMA as of the date that trator of the decedent’s estate or by the claim is received by FEMA. If a any other person legally entitled to as- claim is mistakenly addressed to or sert such a claim under applicable filed with FEMA, the claim shall forth- State law. with be transferred to the appropriate (d) A claim for loss wholly com- Federal Agency, if ascertainable, or re- pensated by an insurer with the rights turned to the claimant. of a subrogee may be presented by the

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insurer or the insured individually, as ries suffered, duration of pain and suf- their respective interests appear, or fering, any drugs administered for jointly. When an insurer presents a pain, and the decedent’s physical con- claim asserting the rights of a dition in the interval between injury subrogee, he or she shall present with and death. the claim appropriate evidence that he (8) Any other evidence or information or she has the rights of a subrogee. which may have a bearing on either the (e) A claim presented by an agent or responsibility of the United States for legal representative shall be presented the death or the amount of damages in the name of the claimant, be signed claimed. by the agent or legal representative, (b) Personal injury. In support of a show the title of legal capacity of the claim for personal injury, including person signing, and be accompanied by pain and suffering, the claimant may evidence of his or her authority to be required to submit the following present a claim on behalf of the claim- evidence or information: ant as agent, executor, administrator, (1) A written report by his or her at- parent, guardian, or other representa- tending physician or dentist setting tive. forth the nature and extent of the injury, nature and extent of treatment, § 11.13 Investigations. any degree of temporary or permanent FEMA may investigate, or may re- disability, the prognosis, period of hos- quest any other Federal agency to in- pitalization, and any diminished earn- vestigate, a claim filed under this part. ing capacity. In addition, the claimant may be required to submit to a phys- § 11.14 Administrative claim; evidence ical or mental examination by a physi- and information to be submitted. cian employed by FEMA or another (a) Death. In support of a claim based Federal agency. FEMA shall make on death the claimant may be required available to the claimant a copy of the to submit the following evidence or in- report of the examining physician on formation: written request by the claimant, if he (1) An authenticated death certifi- or she has, on request, furnished the re- cate or other competent evidence show- port referred to in the first sentence of ing cause of death, date of death, and this subparagraph and has made or age of the decedent. agrees to make available to FEMA any (2) Decedent’s employment or occu- other physician’s reports previously or pation at time of death, including his thereafter made of the physical or or her monthly or yearly salary or mental condition which is the subject earnings (if any), and the duration of matter of the claim. his or her last employment or occupa- (2) Itemized bills for medical, dental, tion. and hospital expenses incurred, or (3) Full names, addresses, birth dates, itemized receipts of payment of such kinship, and marital status of the dece- expenses. dent’s survivors, including identifica- (3) If the prognosis reveals the neces- tion of those survivors who were de- sity for future treatment, a statement pendent for support on the decedent at of expected expenses for such treat- the time of his or her death. ment. (4) Degree of support afforded by the (4) If a claim is made for loss of time decedent to each survivor dependent on from employment, a written statement him or her for support at the time of from the employer showing actual time death. lost from employment, whether he or (5) Decedent’s general physical and she is a full- or part-time employee, mental condition before death. and wages or salary actually lost. (6) Itemized bills or medical and bur- (5) If a claim is made for loss of in- ial expenses incurred by reason of the come and the claimant is self-em- incident causing death, or itemized re- ployed, documentary evidence showing ceipts of payment for such expenses. the amount of earnings actually lost. (7) If damages for pain and suffering (6) Any other evidence or information before death are claimed, a physician’s which may have a bearing on either the detailed statement specifying the inju- responsibility of the United States for

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the personal injury or the damages ployed by the Government is more claimed. than $200. (c) Property damage. In support of a [45 FR 15930, Mar. 12, 1980, as amended at 48 claim for injury to or loss of property, FR 6711, Feb. 15, 1983] real or personal, the claimant may be required to submit the following evi- § 11.16 Limitations on authority. dence or information: (a) An award, compromise, or settle- (1) Proof of ownership of the property ment of a claim under this part in ex- interest which is the subject of the cess of $25,000 may be effected only claim. with the advance written approval of (2) A detailed statement of the the Attorney General or his or her des- amount claimed with respect to each ignee. For the purpose of this para- item of property. graph, a principal claim and any deriv- (3) An itemized receipt of payment ative or subrogated claim shall be for necessary repairs or itemized writ- treated as a single claim. ten estimates of the cost of such re- (b) An administrative claim may be pairs. adjusted, determined, compromised, or (4) A statement listing date of pur- settled under this part only after con- chase, purchase price, and salvage sultation with the Department of Jus- value, where repair is not economical. tice, when, in the opinion of the Gen- (5) Any other evidence or information eral Counsel of FEMA or his or her des- which may have a bearing on either the ignee: responsibility of the United States for (1) A new precedent or a new point of the injury to or loss of property or the law is involved; or damages claimed. (2) A question of policy is or may be involved; or § 11.15 Authority to adjust, determine, compromise and settle. (3) The United States is or may be entitled to indemnity or contribution (a) The General Counsel of FEMA, or from a third party and FEMA is unable a designee of the General Counsel, is to adjust the third party claim; or delegated authority to consider, ascer- (4) The compromise of a particular tain, adjust, determine, compromise, claim, as a practical matter, will or and settle claims under the provisions may control the disposition of a re- of section 2672 of title 28, United States lated claim in which the amount to be Code, and this part. paid may exceed $25,000. (b) Notwithstanding the delegation of (c) An administrative claim may be authority in paragraph (a) of this sec- adjusted, determined, compromised or tion, a Regional Director is delegated settled under this part only after con- authority to be exercised in his or her sultation with the Department of Jus- discretion, to consider, ascertain, ad- tice when FEMA is informed or is oth- just, determine, compromise, and set- erwise aware that the United States or tle under the provisions of section 2672 an employee, agent or cost-type con- of title 28, United States Code, and this tractor of the United States is involved part, any claim for $200 or less which is in litigation based on a claim arising based on alleged negligence or wrong- out of the same incident or trans- ful act or omission of an employee of action. the appropriate Region, except when: (1) There are personal injuries to ei- § 11.17 Referral to Department of Jus- ther Government personnel or individ- tice. uals not employed by the Government; When Department of Justice ap- or proval or consultation is required (2) All damage to Government prop- under § 11.16, the referral or request erty or to property being used by shall be transmitted to the Department FEMA, or both, is more than $200, or of Justice by the General Counsel or all damage to non-Government prop- his or her designee. erty being used by individuals not em-

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§ 11.18 Final denial of claim. lease of any claim against the United (a) Final denial of an administrative States and against any employee of the claim under this part shall be in writ- Government whose act or omission ing and sent to the claimant, his or her gave rise to the claim, by reason of the attorney, or legal representative by same subject matter. certified or registered mail. The notification of final denial may include a Subpart C—Collection of Debts by statement of the reasons for the denial the Government Under the and shall include a statement that, if Debt Collection Act of 1982 the claimant is dissatisfied with the FEMA action, he or she may file suit in AUTHORITY: 31 U.S.C. 3711 et seq. an appropriate U.S. District Court not later than 6 months after the date of SOURCE: 49 FR 38267, Sept. 28, 1984, unless mailing of the notification. otherwise noted. (b) Prior to the commencement of § 11.30 Scope of regulations. suit and prior to the expiration of the 6-month period provided in 28 U.S.C. (a) Scope. This regulation implements 2401(b), a claimant, his or her duly au- policies used by FEMA to collect debts thorized agent, or legal representative, under the Debt Collection Act of 1982, may file a written request with FEMA as amended, 31 U.S.C. 3701 et seq. As for reconsideration of a final denial of amended, this Act: a claim under paragraph (a) of this sec- (1) Requires the Director or designee tion. Upon the timely filing of a re- to attempt collection of all debts owed quest for reconsideration the FEMA to the United States for money or shall have 6 months from the date of property arising out of activities of the filing in which to make a final FEMA Agency; and disposition of the claim and the claim- (2) Authorizes the Director or his des- ant’s option under 28 U.S.C. 2675(a) ignee, for debts not exceeding $100,000 shall not accrue until 6 months after or such higher limit prescribed by the the filing of a request for reconsider- Attorney General of the United States, ation. Final FEMA action on a request under the provisions of 31 U.S.C. for reconsideration shall be effected in 3711(a)(2), exclusive of interest, pen- accordance with the provisions of para- alty, and administrative charges, to graph (a) of this section. compromise such debts or terminate collection action where it appears that § 11.19 Action on approved claim. no person is liable on such debt or has (a) Payment of a claim approved the present or prospective financial under this part is contingent on claim- ability to pay a significant sum there- ant’s execution of (1) a ‘‘Claim for on or that the cost of collecting such Damage or Injury,’’ Standard Form 95, debt is likely to exceed the amount of or a claims settlement agreement, and the recovery. (2) a ‘‘Voucher for Payment,’’ Standard (b) Definitions. For purposes of this Form 1145, as appropriate. When a subpart, the following definitions claimant is represented by an attorney, apply: the voucher for payment shall des- (1) Office means any of the following: ignate both the claimant and his or her (i) United States Fire Administra- attorney as payees, and the check shall tion. be delivered to the attorney, whose ad- (ii) Federal Insurance Administra- dress shall appear on the voucher. tion. (b) Acceptance by the claimant, his (iii) National Preparedness Direc- or her agenct, or legal representative, torate. of an award, compromise, or settle- (iv) State & Local Programs & Sup- ment made under section 2672 or 2677 of port Directorate. title 28, United States Code, is final (v) U.S. Fire Academy/National and conclusive on the claimant, his or Emergency Training Center. her agent or legal representative, and (vi) Office of Financial Management, any other person on whose behalf or for which for purposes of this subpart shall whose benefit the claim has been pre- include all FEMA Headquarters ele- sented, and constitutes a complete re- ments not included in paragraphs

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(b)(1)(ii) through (b)(1)(iv) of this sec- § 11.33 Authority of offices to attempt tion. collection of debts. (vii) FEMA Special Facility. The head of each office and each re- (2) Employee means those persons de- gional director shall designate a debt fined in 5 U.S.C. 2104, members of and collections officer (DCO) who shall at- retirees from the uniformed services of tempt to collect in full all debts of the the United States and employees of and Agency for money or property arising retirees from the United States Postal out of the activities of such office. Service and the Postal Rate Commis- Each DCO shall establish and currently sion. maintain a file with regard to each [57 FR 54714, Nov. 20, 1992] debt for which collection activities are undertaken. Insofar as it is feasible, § 11.31 Adoption of joint standards. debt collection personnel shall have All administrative actions to collect personal interviews or telephone con- debts arising out of activities of the tact with the debtor. Agency shall be performed in accordance with the applicable standards pre- § 11.34 Referral of debts to the Chief scribed either in 4 CFR parts 101 Financial Officer, Federal Emer- gency Management Agency. through 105 or any standards promulgated jointly by the Attorney General (a) Authority of the Chief Financial and the Comptroller General. Such Officer (CFO), Federal Emergency Man- standards are adopted as a part of this agement Agency. subpart and are supplemented in this (1) The Chief Financial Officer, Fed- subpart. Additional guidance will be eral Emergency Management Agency, found in the GAO Policy and Proce- is designated as the Agency Collections dures Manual for Guidance of Federal Officer (ACO). In this capacity he or Agencies and in the Treasury Fiscal she shall exercise such powers and per- Requirements Manual. form duties of the Director in collecting debts owed FEMA. In this re- § 11.32 Subdivision and joining of gard, the ACO may, after consultation debts. with the Office of the General Counsel, (a) A debtor’s liability arising from a compromise, suspend or terminate col- particular transaction or contract lection action on the debts owed the shall be considered as a single debt in Agency, not exceeding $100,000, or such determining whether the debt is one higher limit prescribed by the Attor- not exceeding $100,000 or such higher ney General in accordance with 31 limit prescribed by the Attorney Gen- U.S.C. 3711(a)(2), exclusive of interest, eral in accordance with 31 U.S.C. except as provided in § 11.35 and para- 3711(a)(2) exclusive of interest for the graph (b) of this section. In addition, purpose of compromise or termination the CFO is delegated all authority of collection action. Such a debt may which may be exercised by the Direc- not be subdivided to avoid the mone- tor, Federal Emergency Management tary ceiling established by the Act. Agency in relation to: (b) Joining of two or more single (i) Disclosure to a consumer report- debts in a demand upon a particular ing agency in accordance with 31 U.S.C. debtor for payment totaling more than 3711(f), $100,000 or such higher limit prescribed (ii) Instituting salary offset proce- by the Attorney General in accordance dures in accordance with 5 U.S.C. with 31 U.S.C. 3711(a)(2) does not pre- 5514(a), clude compromise or termination of (iii) Instituting administrative offset collection action with respect to any procedures in accordance with 31 U.S.C. one of such debts that do not exceed 3716, $100,000 or such higher limit prescribed (iv) Charging of interest and pen- by the Attorney General in accordance alties in accordance with 31 U.S.C. 3717, with 31 U.S.C. 3711(a)(2) exclusive of in- (v) Entering into contracts for collec- terest. tion of debts in accordance with 31 [49 FR 38267, Sept. 28, 1984, as amended at 57 U.S.C. 3718, except that the execution FR 54714, Nov. 20, 1992] and administration of such contracts is

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delegated to Federal Emergency Man- (a) Debtor cannot be located despite agement Agency contracting officers vigorous efforts, including but not lim- appointed under provisions of 48 CFR ited to, use of skip tracing services, 1.603–3, have failed to ascertain the debtor’s (vi) Prescribe debt collection proce- current address. dures and manage debt collection ac- (b) Debtor is financially unable to tivities within the Agency. pay in full or in part. DCO’s must ob- (2) When initial attempts at collec- tain a financial statement from the tion by the office originating such debt debtor in such cases. have not been fully successful, the debt (c) The debt is without merit or can- file shall be forwarded to the ACO for not be substantiated by evidence. In further administrative collection pro- such cases, debt collection officers cedures. Debts shall be referred to the should secure the advice of counsel. ACO well within the applicable statute DCO’s must document the debt file to of limitations (28 U.S.C. 2415 and 2416). show all evidence and reasons for com- (b) Exclusions. There shall be no compromise or termination of such debts. promised or terminated collection ac- The DCO must prepare a narrative re- tion with respect to any debt: (1) As to port and forward a copy of the report which there is an indication of fraud, to the ACO. the presentation of a false claim, or misrepresentation on the part of the [49 FR 38267, Sept. 28, 1984, as amended at 53 debtor or any other party having an in- FR 47211, Nov. 22, 1988] terest in the claim; (2) based in whole § 11.36 Debt collection files. or in part on conduct in violation of the anti-trust laws; (3) based on tax Each DCO is responsible for obtain- statutes; or (4) arising from an excep- ing current credit data about each per- tion made by the General Accounting son against whom a debt is pending in Office in the account of an accountable his office. The files shall be kept up-to- officer. Such a debt shall be promptly date by the ACO for claims referred to referred to the Justice Department, or his/her office for collection. Such cred- GAO, as appropriate, after ACO has it data may take the form of: consulted with the Inspector General (a) A commercial credit report, show- and the Office of General Counsel. ing the debtor’s assets and liabilities (c) Delegation. The ACO may delegate and his income and expenses, his or her authority in the FEMA debt (b) The individual debtor’s own finan- collection program and under this sub- cial statement, executed under penalty part to a Deputy or to others in the for false claim, reflecting his assets FEMA Office of Financial Manage- and liabilities and his income and ex- ment. However, the ACO must person- penses, or ally approve any compromise, suspen- (c) An audited balance sheet of a cor- sion or termination of collection ef- porate debtor. forts on debts exceeding $10,000.00. The file should also contain a checklist [49 FR 38267, Sept. 28, 1984, as amended at 50 or brief summary of action taken to FR 40007, Oct. 1, 1985; 53 FR 47211, Nov. 22, collect or compromise a debt. All debts 1988; 57 FR 54714, Nov. 20, 1992] files relating to debts owed by individuals are to be safeguarded in accord- § 11.35 Authority of offices to com- ance with 5 U.S.C. 552a, popularly promise debts or suspend or terminate collection action. known as the ‘‘Privacy Act of 1974’’; 31 U.S.C. 3711 et seq., popularly known at Where it appears that the cost of col- the ‘‘Debt Collection Act of 1982’’; 44 lecting a debt of $2,500 or less will ex- CFR part 6 and this subpart. Each DCO ceed the amount of recovery, the DCO is responsible for maintaining files on is authorized to compromise the debt debtors with information sufficient to or to terminate collection action. Fur- enable the Government to effectuate ther, DCO’s are authorized to com- administrative or judicial collection. promise a debt or terminate or suspend collection action for debts of $2,500 or (Approved by the Office of Management and less where: Budget under control number 3067–0122)

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§ 11.37 [Reserved] Treasury and Office of Management and Budget regulation. § 11.38 Annual reports to the Director, Office of Management and Budget, § 11.40 Records retention. and the Secretary of the Treasury. The file of each debt on which admin- (a) The ACO shall gather data on istrative collection action has been loans, accounts receivable, and debts completed shall be retained by the ap- which are required by 31 U.S.C. 3719 and propriate officer not less than 1 year shall transmit them to the Director, after the applicable statute of limita- Federal Emergency Management Agen- tions has run. cy. Such data shall include: (1) The total amount of loans and ac- § 11.41 Suspension or revocation of eli- counts receivable owed to the Agency gibility. and when the funds owed to the Agency (a) Where a contractor, grantee, or are due to be repaid; other participant in programs spon- (2) The total amount of receivables sored by the Agency fails to pay his and number of debts that are at least debts to the Agency within a reason- thirty days past due; able time after demand, the fact shall (3) Total amount written off as un- be reported by the ACO to the Inspec- collectable, actual, and allowed for; tor General and to the Office of Acqui- (4) The rate of interest charged for sition Management, which shall place overdue debts and the amount of inter- such defaulting participant’s name on est charged and collected on debts; the Agency’s list of debarred, sus- (5) The total number of debts and pended and ineligible contractors and total amount collected; grantees. The participant will be so ad- (6) The number of debts and the total vised. Suspension or revocation of eli- amount of debts referred to the Depart- gibility may be waived in whole or in ment of Justice for settlement or col- part in the case of grants for disaster lection and the total number of debts programs administered by FEMA, if and the total amount of debts settled the Director FEMA, so directs. or collected by that Department; (b) The failure of any surety to honor (7) For each program or activity ad- its obligations in accordance with 6 ministered by the Agency, the data de- U.S.C. 11 is to be reported at once to scribed in paragraphs (a) (1) through (6) the ACO, who shall so advise the Treas- of this section; and ury Department. That Department will (8) Such other data as the Director, notify this Agency when a surety’s cer- Office of Management and Budget, tificate of authority to do business shall prescribe by regulations issued with the Government has been revoked under authority of 31 U.S.C. 3719. or forfeited. (b) Data described in paragraph (a) of (c) Failure by a recipient of FEMA fi- this section shall be collected on a cal- nancial or nonfinancial assistance to endar year basis and transmitted to pay a substantial debt or a number of the Director, FEMA not later than the outstanding debts being collected end of January of the year following under this subpart may be ground for the year for which the data described Government-wide debarment and sus- in paragraph (a) of this section, were pension as described in 44 CFR collected. The Director, FEMA, shall 17.305(c)(3). report these data to the Secretary of [49 FR 38267, Sept. 28, 1984, as amended at 57 the Treasury and the Director, Office FR 54715, Nov. 20, 1992] of Management and Budget in accordance with 31 U.S.C. 3719. If the Sec- § 11.42 Demand for payment of debts. retary of the Treasury and the Direc- (a) Initial demand. An initial demand tor, Office of Management and Budget shall be made in writing and sent by prescribe, by regulation, a different an- certified mail, return receipt re- nual reporting cycle, the Agency’s requested, or delivered by hand to the porting cycle, described in the first debtor identifying the debt and advis- sentence of this subsection shall be ing that the full amount due should be changed to conform with the cycle pre- paid by a specified date, not less than scribed by the Department of the 30 days from the date of mailing or the

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hand delivery. If the debtor is other may collect debts owed to the United than a State or local government or an States by means of offsets against agency of the United States, the initial monies due from the United States demand notice shall also advise the under provisions of 31 U.S.C. 3716 and debtor that interest, calculated at the procedures set forth below. Under rates provided by 31 U.S.C. 3717(a), provisions of 31 U.S.C. 3716(h)(1) and re- shall be assessed if the debt is not paid ciprocal agreements entered into by in full by the due date. Interest shall the Secretary of the Treasury and the be charged on the outstanding balance States concerned, the ACO or the due at the rate prescribed by the Sec- ACO’s designee may institute adminis- retary of the Treasury in accordance trative offsets covered in this section with 31 U.S.C. 3717(a), beginning on the to collect debts that are owed to States date that the first notice was mailed to and which arise under programs admin- the debtor. The debtor shall also be ad- istered by FEMA. The procedures pre- vised that if any portion of the debt re- scribed by this section shall not be mains unpaid for 90 days after the due used if the debtor has executed a writ- date, without a repayment schedule ten agreement satisfactory to the ACO satisfactory to the Agency being ar- or the ACO’s designee for the payment ranged, then additional penalties, as of the debt so long as the debtor ad- described in 31 U.S.C. 3717(e)(2), of 6 heres to the provisions of the agree- percent per year shall be charged on ment. Before using the procedures of the unpaid balance of principal and in- this section, the ACO or the ACO’s des- terest. ignee shall examine the debt to deter- (b) Subsequent demands. If the debt is mine whether the likelihood of col- not paid by the due date or if a repay- lecting such a debt and the best inter- ment program acceptable to the ACO, ests of the United States justify the has not been arranged with the debtor, use of administrative offset. If the debt then an initial demand shall be made is over 6 years old but is not 10 years followed by two progressively stronger old, the ACO or the ACO’s designee written demands at not more than 30- shall examine the debt and decide day intervals, will be made unless a re- whether using these procedures is cost sponse to the initial or subsequent de- effective. Further, FEMA shall not use mands indicates that further demands administrative offset procedures on would be futile and that the debtor’s debts existing for more than 10 years response does not require rebuttal. after the Government’s right to collect (c) Debts arising from contracts exe- the debt first accrued unless facts ma- cuted on or before October 25, 1982. If the terial to the Government’s right to col- claim arises from a contract executed lect the debt were not known and could before October 25, 1982, then the initial not have been known by the officials of and subsequent demands shall mention the Government who were charged nothing about the imposition of pen- with responsibility to discover and col- alties or interest, prior to rendering of lect the debt. FEMA may refer debts to judgment by a court of competent ju- the Department of the Treasury for risdiction. Government-wide administrative offset (d) Waiver of subsequent written de- under the provisions of 31 U.S.C. 3716(c) mands. If there is valid reason, the and for offsets against Federal tax re- sending of second and third demand funds under provisions of 31 U.S.C. letters may be waived. Such reasons 3720A. may include, but are not be limited to, (b) Written notice. After the ACO or statute of limitations being about to the ACO’s designee has examined the run. debt under procedures set forth in [49 FR 38267, Sept. 28, 1984, as amended at 53 paragraph (a) of this section, FEMA FR 47211, Nov. 22, 1988; 57 FR 54715, Nov. 20, shall hand deliver or send by mail a no- 1992] tice to the debtor advising the debtor of: § 11.43 Collection by administrative (1) Nature and amount of the debt de- offset. termined by the Agency to be due, and (a) General. The Agency Collections of intention to collect by administra- Officer (ACO) or the ACO’s designee tive offset;

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(2) Rights available under this sec- (3) FEMA shall use procedures in this tion; section to decide debtors’ requests for (3) Opportunity to inspect and copy review within FEMA under the provi- the records relating to the debt; sions of § 11.64(d). (4) Opportunity for review within the (d) If the debtor does not execute a Agency with respect to the debt; and written agreement, if the debtor does (5) Opportunity to enter into an not request review within the Agency, agreement with the ACO with respect or if the review within the Agency de- to the debt. Such agreement may in- termines that a debt is due, then clude voluntary but nonrevocable with- FEMA shall use administrative offset holding of monies due from the United against monies payable by the United States to the debtor. States in accordance with this section (c) Review within the Federal Emer- and appropriate regulations. However, gency Management Agency. The debtor if a statute or FEMA agreement either may request, within sixty calendar prohibits or explicitly provides for col- days after mailing or hand-delivery of lection through administrative offset the written notice specified in para- for the debt or the type of debt in- graph (b) of this section, review within volved then the provisions of that stat- the Agency as to the existence or ute or FEMA agreement rather than amount of the debt or terms of repay- the provisions of this section shall be ment. An attorney in the Office of Gen- used for such offset. eral Counsel, acting as an Administra- (e) If the debtor has a judgment tive Review Official (ARO), shall con- against the United States, then notice duct the review. The ARO may deter- shall be provided to the General Ac- mine that no debt is due, that the counting Office for offset in accordance amount of the debts should be reduced, with 31 U.S.C. 3728. that terms of repayment should be set, (f) In addition to administrative off- or that the demanded amount should set remedies described above, FEMA be paid in full. may use its rights to collect debts by (1) If the debtor has made a timely offsets conducted under principles of request for a review within the Agency, common law. then FEMA shall stay any offsets until (g) The debtor’s failure to receive no- the ARO has rendered a decision. How- tice, described in paragraph (b) of this ever, interest, penalties and adminis- section, mailed by FEMA to the debt- trative charges, as specified in § 11.48, or’s last-known address, shall not im- shall continue to accrue during the pair the validity of offsets taken under pendency of the review within the this section. Agency. If the debtor files a request for (h) If FEMA or any other Federal de- a review within the Agency after the 60 partment or agency incurs costs in days specified above, then FEMA shall taking offsets to collect delinquent continue with the offset action. How- debts, then the debtor shall be liable ever, if the ARO finds that the debtor for such costs as administrative costs owes less than the amount offset, then in accordance with section 11.48(d). FEMA will refund the amount over- [63 FR 1066, Jan. 8, 1998] withheld. For purposes of determining whether the debtor has filed a timely § 11.44 [Reserved] request for administrative review, the date of FEMA’s receipt of the debtor’s § 11.45 Collection by salary offset. request establishes the time of filing. (a) General. Where an individual is an (2) The ARO shall transmit the deci- employee of the Federal Government sion on the debtor’s request for review or a member of the Armed Forces or a within the Agency. The ARO may con- reserve component of the Armed tact the debtor directly to request ad- Forces or is receiving retired or re- ditional information and data in order tainer pay for service as a Federal em- to allow the ARO to reach a knowl- ployee and where the individual is in- edgeable decision. The ARO’s decision debted to the United States and where shall be final insofar as FEMA’s admin- the individual fails to satisfy his in- istrative processing of the debt is con- debtedness voluntarily after the Agen- cerned. cy has made demands in accordance

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with § 11.42 of this part, the ACO may Management Agency, Washington, DC institute collection action by salary or 20472. The postmark or receipt date, if pay offset procedures in accordance mail is not used, shall establish the with 5 U.S.C. 5514, 5 CFR 550.1101 date of petition. through 550.1106, 5 CFR part 845, 5 CFR (1) The hearing official shall be an 831.1301 et seq., and the procedures de- Administrative Law Judge or a person scribed below. of grade GS/GM–14 or higher, not under (b) Notice to debtor. At least 30 days the supervision or control of the Direc- prior to initiating salary offset, the tor, FEMA. The Director may enter ACO or his designee shall send notice into interagency support agreements by certified mail, return receipt re- with other Federal agencies or depart- quested, to the debtor advising him of: ments for providing hearing officials. (1) Nature, origin and amount of in- (2) The hearing shall be informal but debtedness determined by the Agency the debtor shall be given the basic safe- to be due, the date that the debt was guards of due process. The debtor shall due, and a statement that FEMA has have the right to be represented by an complied with applicable statutes, reg- attorney. A summary record shall be ulations and procedures, made of the proceedings at the hearing. (2) Agency intention to initiate pro- The hearing shall, insofar as possible, ceedings to collect the debt by deduc- be conducted at a location and time tions from pay, convenient to the debtor. (3) Rights available under 5 U.S.C. (3) As soon as practicable, but in no 5514(a), event later than 60 days after the filing (4) Debtor’s opportunity to inspect of the petition for hearing, the hearing and copy Government records relating official shall render a final decision. If to the debt, a hearing is requested, no further ac- (5) Opportunity to enter into a writ- tion shall be taken to collect the debt ten agreement, under terms satisfac- until the final decision is rendered. tory to the ACO, to establish terms for (d) Amount deducted. The amount de- the repayment of the debt, and ducted from pay for any period shall (6) Opportunity for a hearing, de- not exceed 15 percent of disposable pay. scribed in paragraph (c) of this section, However, the debtor may voluntarily concerning the existence or the agree to the deduction of a greater amount of the debt or, if no repayment amount of pay. Disposable pay means schedule has been established (in ac- that part of pay of any individual cordance with paragraph (b)(1) of this remainng after the deduction from section) concerning the terms of the re- those earnings of any amounts required payment schedule, by law to be withheld. However, in- (7) If there is a statutory provision stallment payments of less than $25.00 authorizing waiver, remission, or for- will be accepted only in the most un- giveness of the debt due the United usual circumstances. Disposable pay is States; the individual will be notified defined in 5 CFR 550.1103 and 5 CFR as to: 581.105(b) through (f). (i) Nature of the provision, (e) Procedural requirements specified (ii) Explanation of the conditions in paragraph (c) of this section shall under which the waiver shall be grant- not be used in cases of collections of ed, such obligations as changes in coverage (iii) Reasonable opportunity to re- under a Federal benefits program or request a waiver, sulting from ministerial adjustments (iv) If waiver is requested, then a pay and allowances which cannot be written response will be given to the placed in effect immediately because of request. normal processing delays. (c) Hearing. The debtor shall file a (f) When an employee, who is subject written petition for hearing or for a to salary offset in accordance with this waiver (if applicable) on or before the section and who is making repayment twentieth calendar day after receipt of in installments, finds that total repay- notice, referred to in paragraph (b) of ment of the debt is about to be made, this section, addressed to the Agency then the employee must notify the em- Collections Officer, Federal Emergency ployee’s payroll office, at least two pay

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periods before the final payment, that FEMA. A debt is also deemed delin- final payment is being made. quent if the debtor has not made pay- (g) Debts arising from travel ad- ment by the date specified in the appli- vances provided under 5 U.S. C. 5705 cable agreement. and for travel and transportation ex- (b) Interest. FEMA’s delinquent debt- penses for transferred employees under ors shall be charged interest on the 5 U.S.C. 5724 may be collected by tak- outstanding principal balance due on ing offsets in accordance with 44 CFR debts owed the United States at the 11.43. rate published by the Secretary of the [49 FR 38267, Sept. 28, 1984, as amended at 50 Treasury under provisions of 31 U.S.C. FR 40007, Oct. 1, 1985; 57 FR 54715, Nov. 20, 3717(a). The interest rate in effect at 1992] the time that FEMA first mailed or hand delivered to the debtor written § 11.46 Liquidation of collateral. notice, stating that the debt was due Where FEMA holds security or col- and that interest would be assessed on lateral that may be liquidated and the the debt, shall be the rate applied proceeds applied on debts due it throughout the duration of the debt through the exercise of a power of sale until the debt is paid in full. in the security instrument or a non- (1) However, if the debtor defaults on judicial foreclosure, such procedures a debt repayment agreement made should be followed if the debtor fails to with the ACO or the ACO’s designee, pay his debt within a reasonable time then interest shall accrue at the rate after demand, unless the cost of dis- published by the Secretary of the posing of the collateral will be dis- Treasury under the provisions of 31 proportionate to its value or special U.S.C. 3717(a)(1) that was in effect when circumstances require judicial fore- the debtor defaulted on the repayment closure. agreement. Interest shall accrue either § 11.47 Collection in installments. from the date that FEMA first informed the debtor that the Agency Debts with accrued interest and pen- would assess interest on the debt or alties should be collected in full in one some subsequent date specified in the lump sum whenever this is possible. written notice given by FEMA to the However, if the debtor is financially debtor stating that interest would be unable to pay the indebtedness in one assessed. lump sum, payment with applicable interest may be accepted in regular in- (2) However, where FEMA first sent stallments in accordance with a writ- the notice of indebtedness prior to Oc- ten agreement approved by the ACO or tober 25, 1982, interest shall run from his designee. If possible, installment the date on or after that date when payments shall be sufficiently large to FEMA first sent the debtor a letter no- complete collection in the three years. tifying the debtor that the Agency Installment payments should not be would assess interest. less than $50.00 per month unless there (c) Exceptions to interest charges. How- are most unusual circumstances. The ever, no interest, described in para- Agency may require the debtor to exe- graph (a) of this section, shall be cute a confess-judgment, negotiable charged if: note for the amount of the indebted- (1) The amount due is paid in full ness. The ACO or DCO may require the within 30 days of the mailing of the de- debtor to provide a statement as to fi- mand. However, the ACO or the ACO’s nancial condition. designee, as documented by a memorandum in the debt collection file, may § 11.48 Interest, penalties, and admin- extend this 30-day period on a case-by- istrative charges. case basis for good cause shown in ac- (a) Definition. In §§11.30 through 11.65 cordance with the Federal Claims Col- of this part, a debt is deemed to be de- lection Standards (4 CFR 102.13(g)), or linquent if the debtor has not paid the (2) The applicable statute, regulation debt by the collection due date and if required by statute, loan agreement or the debtor has not entered into a re- contract either prohibits the charging payment agreement satisfactory to of interest or explicitly fixes interest

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or charges, which apply to the debt in- (iii) The debtor has shown good volved. cause, satisfactory to the ACO, that (d) Penalty charges. Except in the sit- the claim was not timely paid. If waiv- uation described in paragraph (c) of er is granted, the administrative this section, the debtor shall be liable claims file shall be adequately docu- for a penalty of 6% annually on the un- mented; or paid principal, interest, and adminis- (iv) The ACO or the ACO’s designee trative charges if the debtor fails to may waive imposition of interest in ac- pay the debt in full within 90 days of cordance with standards set forth in 4 the date after the first written notice CFR 102.13 and §§11.50 and 11.51 of this by FEMA that FEMA would assess pen- subpart. alty charges. However, if the debtor en- (2) The ACO, with the concurrence of ters into a repayment agreement, sat- the General Counsel, may waive inter- isfactory to the ACO or the ACO’s des- est, penalties and administrative costs ignee within the 90-day period, then based on criteria set forth in para- FEMA will not assess penalty so long graphs (f)(3) through (f)(5) of this sec- as the debtor adheres to the provisions tion. When such charges are waived, of the agreement. Penalty shall accrue the Agency Collections Officer or the starting on and including the day of ACO’s designee shall prepare a memo- FEMA’s first written notice where randum for the debt collection file FEMA mentioned that it would assess stating the reasons for not collecting penalty charges on the debt. Penalty such charges. will not be assessed against Federal (3) If the costs of collection exceed agencies. Penalty charges shall accrue the projected recovery then interest, on administrative charges, starting on penalties and administrative costs may the day that FEMA incurred the ad- be waived. ministrative charge. However, if the debtor pays the debt in full within 90 (4) If FEMA determines that the days of FEMA’s first notice that the debtor is unable to pay, as shown by Agency would assess penalty charges complete and sworn statements as to or if the debtor enters into a repay- his or her assets and projected income, ment agreement satisfactory to the then the ACO or the ACO’s designee ACO or the ACO’s designee within that may waive interest, penalties and ad- time, then FEMA will not assess pen- ministrative charges in whole or in alty on accrued administrative part. If the principal outstanding charges. amount of the debt exceeds $5,000, the (e) Administrative costs for processing determination shall be made by the delinquent debts. Debtors shall pay the ACO. If the principal outstanding United States for costs incurred by the amount of the debt is $5,000 or less, the Government in collecting the debt in determination may be made by the accordance with 31 U.S.C. 3717(e)(1). DCO, the ACO, or a person designated Administrative cost calculations will by the ACO. be based upon actual costs incurred by (5) The ACO or the ACO’s designee FEMA or upon analyses establishing an may waive assessing interest, penalty, average of actual costs incurred by and administrative charges if such as- FEMA in processing debts in similar sessment would be against equity and stages of delinquency. good conscience or not in the best in- (f) Standards for waiver of interest, terests of the United States. Examples penalties, and administrative charges. (1) include, but are not limited to: The ACO or the ACO’s designee may (i) FEMA’s undue delay in rendering waive interest, penalties and adminis- a decision where the debtor had re- trative charges, either in whole or in quested an administrative review or re- part, if the ACO or the ACO’s designee view within the Agency. Under these finds that: circumstances, interest and penalty (i) The debtor is financially unable to would be waived during the period of pay; undue delay. (ii) The Agency’s enforcement policy (ii) The amount of interest is so will be adequately served if there is a large, in relation to the debtor’s ability waiver in whole or in part; to pay that assessment of interest

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would leave the debtor perpetually in- assess interest and penalties while the debted to the United States. appeal is pending from the time that (g) Nonapplicability. The provisions of the debtor requests an administrative this section do not apply to debts owed review or an appeal until the Agency by Federal agencies. has taken final action on the adminis- (h) Installment collections or partial trative review or the appeal. payments. When a debtor pays a debt ei- (3) When a debtor notes an appeal or ther partially or in installments, the requests an administrative review that payments shall first be applied to ad- is permissive under statute or regula- ministrative costs, second to penalty tion, then interest, penalties and ad- charges, third to accrued interest, and ministrative charges may be waived if: finally to principal. Partial payments shall be deemed to be made when re- (i) There is no fault or lack of good ceived at the FEMA office designated faith on the part of the debtor and if to receive the payments. If the debtor the amount of interest, penalties and owes more than one debt, then the ACO administrative charges is so high in re- or the ACO’s designee will apply the lation to affordable installment repay- partial payment to the oldest debt first ments that the debt would never be re- unless the debtor is making a vol- paid. In determining whether interest untary installment payment. Under and penalties should be waived, the voluntary circumstances, the debtor ACO, the ACO’s designee, or the DCO may designate to which debt the pay- may demand that the debtor provide ment is to be applied. such financial data as he or she may (i) Collection of interest, penalties, and determine is necessary to reach an in- administrative charges while an appeal is formed decision. pending. If the debtor requests adminis- (ii) FEMA unreasonably delays in trative review of the existence or the rendering a decision on a debtor’s re- amount of the debt, interest, penalties, quest for an administrative review or and administrative charges may be review within the Agency, then the waived or suspended by the ACO or the ACO or the ACO’s designee may waive ACO’s designee under the following cir- assessment of interest, penalty, and ad- cumstances: ministrative charge during the period (1) If a State or local government re- of the unreasonable delay. quests review within the Agency of a proposed referral to the Treasury Off- (iii) The ACO or the ACO’s designee set Program or an administrative re- may waive or suspend the collection of view of a proposed administrative off- interest, penalty and administrative set, then the ACO or the ACO’s des- charges, for good cause shown and if ignee may waive interest, penalty or such waiver or suspension would serve administrative charges if the State or FEMA’s interests. The FEMA official local government shows to the satisfac- making such a waiver shall prepare a tion of the ACO or the ACO’s designee memorandum describing the cir- that its taxes and other revenues would cumstances and stating the reasons for be insufficient to allow the State or the grant of a waiver or suspension. local government to provide essential (j) Accrual of interest and penalty. In- public services if FEMA were to collect terest and penalty will accrue on delin- interest, penalty, administrative quent FEMA debts until FEMA re- charges, or any two or more, either in ceives payment at the address des- whole or in part. The ACO or the ACO’s ignated by the ACO or the ACO’s des- designee may require that the State or ignee. local government provide FEMA with such economic, accounting, financial [63 FR 1067, Jan. 8, 1998] or demographic data as the ACO or the ACO’s designee may deem necessary to § 11.49 Omission not a defense. reach an informed decision as to waiv- Failure to comply with any standard er. prescribed in 4 CFR chapter 11, or in (2) If a debtor notes an appeal or re- this subpart shall not be available as a quests an administrative review that is defense to any debtor. mandated by law, then FEMA shall not

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§ 11.50 Standards for compromise of (b) Documentary evidence of com- debts. promise. No compromise of a debt shall (a) Compromise. (1) A debt may be be final or binding on the Agency un- compromised if: less it is in writing and signed by the appropriate officer who has authority (i) The debtor is not able to pay the to compromise the claim pursuant to full amount within a reasonable period this subpart. of time; (c) Authority. Only the ACO may com- (ii) If the debtor refuses to pay the promise debts of more than $2,500. debt in full and the Agency is unable to Debts of $2,500 or less may be com- enforce collection within a reasonable promised by the ACO or the DCO. time by enforced collection proceeding; Debts exceeding $100,000 or such other (iii) If there is real doubt concerning limit prescribed by the Attorney Gen- the Agency’s ability to prove its case eral in accordance with 31 U.S.C. in court for the full amount claimed; 3711(a)(2) may be compromised only (iv) If the cost of collecting the debt after approval by the Department of does not justify the enforced collection Justice in accordance with 4 CFR of the full amount; 103.1(b). (v) If, in connection with statutory penalties or forfeitures established as [49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47212, Nov. 22, 1988; 57 FR 54715, Nov. 20, an aid to enforcement and to compel 1992] compliance, the Agency’s enforcement policy will be adequately served by ac- § 11.51 Standards for suspension or ceptance of the sum to be agreed upon; termination of collection. or (a) Suspension of collection action. (1) (vi) For other reasons deemed valid Collection action shall be suspended by the ACO after consultation with the temporarily on a debt when the debtor General Counsel. The Standards set cannot be located after diligent effort forth in 4 CFR 103.3 through 103.9 but there is reason to believe that fu- should be used. ture collection action may be (2) Inability to pay. If a debtor is un- sufficently productive to justify peri- able to pay the full amount of the debt odic review and action on the claim, within a reasonable time or if the debt- making consideration for its size and or refuses to pay and the Government the amount which may be realized. Col- is unable to collect the amount of the lection action may be suspended tem- debt through enforcement proceedings porarily on a debt when the debtor then the Agency may compromise the owns no subsantial equity in realty and claim either in whole or in part. The is presently unable to make payment ACO may require that the debtor pro- on the Agency’s debt or effect a com- vide sworn information as to assets, ac- promise, but his future prospects jus- tual or potential sources of income, li- tify retention of the claim for periodic abilities and other financial data. The review and action, and, (i) the applica- standards set forth in the GAO, Depart- ble statute of limitations has been ment of Justice guidelines prescribed tolled or started anew, or (ii) future in 4 CFR 103.2 should be used. collection can be effected by offset not- (3) Compromises payable in install- withstanding the statute of limita- ments will not normally be permitted tions. Suspension as to a particular by the Agency only if the debtor shows debtor should not defer the early liq- that full, immediate payment is impos- uidation of security for the debt. sible. Standards prescribed in 4 CFR part 104 (4) Litigative probabilities. If there is a shall be used in making determinations bona fide dispute as to facts or if there as to suspension as termination of col- is a valid legal defense raised which lection efforts. may limit or eliminate the possibility (2) No substantial recovery possible. If, of recovery, then the Agency Collec- at the time that collection is at- tions Officer may, after receiving a tempted, debtor is without assets or legal analysis from the General Coun- actual or potential income or if the sel, compromise the action in whole or debtor may have exemptions under the in part. bankruptcy laws which make enforced

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collection of the debt not cost-effec- in accordance with 4 CFR 104.1(b). Such tive, then collection action may be sus- proposed compromises shall be referred pended. However, interest and other to the Office of General Counsel, which charges will accumulate unless waived. shall review the proposal before being (3) Debtor cannot be located. If the forwarded to the Department of Jus- debtor cannot be located or is outside tice. However, where a debt claim is of the United States, then collection ac- no legal merit, the ACO may com- tion may be suspended until the debtor promise such a debt without referral to is located. The statute of limitations the Department of Justice but only will be tolled during those periods that with the concurrence of the Office of the debtor is outside the United States. General Counsel. (b) Termination of collection action. (1) (d) Enforcement policy. Statutory pen- Collection action may be terminated alties and forfeitures are used as an aid and the Agency file closed for the fol- to secure compliance with FEMA re- lowing reasons: (i) No substantial quirements and to compel payment. amount can be collected; (ii) the debtor These may be waived if the Agency’s cannot be located; (iii) the cost will ex- enforcement policy in terms of secur- ceed recovery; (iv) the claim is legally ing payment and securing compliance without merit; or (v) the claim cannot with FEMA regulations would be be substantiated by evidence. sreved by accepting a sum agreed upon. (2) No substantial recovery possible. If Mere accidental or technical violations there is little likelihood that collec- will be dealt with less severly than tion efforts will result in any substan- willful or substantial violations. tial recovery, then collection efforts [49 FR 38267, Sept. 28, 1984, as amended at 53 may be terminated. Costs of recovery FR 47212, Nov. 22, 1988; 57 FR 54715, Nov. 20, may be a factor in determining wheth- 1992] er any recovery would be substantial. Normally, costs of recovery would be § 11.52 Referral of delinquent debtors more important in cases of small debts to consumer reporting agencies. than in cases of large ones. (a) General. This section implements (3) Debtor cannot be located. Every ef- 31 U.S.C. 3711(f) concerning reporting of fort, including, but not limited to, use debtors having overdue debts to con- of governmental records, Internal Rev- sumer reporting agencies. enue Service taxpayer information, (b) Procedures. When a debt is unpaid private contractor skip tracer and for 120 days after the initial demand credit agencies, shall be made to locate letter has been sent and where the debtors in advance of the runnning of debtor has not repaid the amount due the statute of limitations. If the debtor nor has the debtor entered into an cannot be located, then the Agency agreement for repayment satisfactory Collections Officer may determine, to the ACO or his designee, or the debt with the concurrence of the General is not subject to administrative offset Counsel, that collection efforts may be (as described in § 11.43), the ACO may terminated. report the claim to consumer reporting (4) Litigative possibilities. The criteria agencies if: and procedures of § 11.50(a)(4) of this (1) The Agency Collections Officer or subpart may be used to terminate col- his designee has determined that the lection efforts if it appears unlikely debt is overdue, that the Government would prevail if (2) Notice has been sent certified it were to litigate collection of the mail, return receipt requested, to debt- debt. or informing him that: (c) Debts exceeding $100,000. Debts ex- (i) Payment of the debt is overdue, ceeding $100,000 or higher limits pre- (ii) The Agency intends to disclose scribed by the Attorney General in ac- the debtor’s debt records to a consumer cordance with 31 U.S.C. 3711(a)(2) (ex- reporting agency within a stated pe- clusive of interest, penalty charges and riod, not less than 60 days after the administrative charges) shall not be mailing of such debt, compromised by FEMA unless the pro- (iii) Specified items of information posed compromise has been referred for being released shall be listed in the no- approval by the Department of Justice tice. Such items will normally include

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the debtor’s name, taxpayer account Treasury taxpayer identity informa- number, last known address, other in- tion files for Agency use in collecting formation necessary to establish the claims. Any information so received identity of the individual, the nature, from the Secretary of the Treausury amount and status of the outstanding shall be safeguarded in accordance with claim, and programs under which the provisions of 26 U.S.C. 6103(p)(4) and 26 claim arose, and CFR parts 301 and 601. (iv) The debtor has a right to a full (b) Taxpayer identity information explanation of the debt, to dispute any (which includes IRS current address information in the records concerning and social security number) shall be re- the debt, and to have an administrative leased to consumer reporting agencies review. If the debtor petitions for ad- only for the purpose of preparation of ministrative review, then no further commercial credit reports for use by action on referring debtor information Federal agencies in accordance with to consumer reporting agencies shall section 3 of the Debt Collection Act (31 be undertaken until the administrative U.S.C. 3711(f)). A notice to this effect review is completed. shall be placed on each page containing (c) Administrative review. The debtor taxpayer identitiy information which shall send with his petition arguments is sent to consumer reporting agencies. in writing and documentary evidence to the Agency Collection Officer, Office § 11.54 Contracts with debt collection of Financial Management, Federal agencies. Emergency Management Agency, Washington, DC 20472. These shall be (a) General. FEMA shall utilize man- reviewed by the ACO or an official des- datory, government-wide debt collec- ignated by him. The reviewing official tion agency contracts negotiated by shall prepare a reply, within 60 days the General Services Administration or after receipt of the petition, either ac- the Department of the Treasury to ef- cepting the debtor’s assertions in fect collection of debts owed FEMA. whole or is part or rejecting them. If (b) Debt collection contract provisions. the debtor’s assertions are rejected in Contracts entered into under authority whole or in part, then the debt data, of this secion shall have provisions re- described in paragraph (b)(2)(iii) of this lating to: section (with correction made as indi- (1) Protection of data relating to in- cated by the reviewing official) shall be dividuals which shall not be less than sent to consumer reporting agencies. that provided under the terms of the (d) Information released. Information Privacy Act (5 U.S.C. 552a). released to consumer reporting agen- (2) Protection of data derived from cies shall be limited to the following Department of the Treasury taxpayer items: identity information files shall in ac- (1) Name of debtor, address, taxpayer cordance with 26 U.S.C. 6103(p)(4) and 26 identification number, and other infor- CFR parts 301 and 601. mation necessary to establish the iden- (3) Authority to terminate collection tity of the debtor, action, settle or compromise claims (2) Amount, status and history of the shall remain with the Director of the debt and Agency or the ACO rather than with (3) Program under which the debt the Contracting Officer. arose. (4) Resolution of disputes relating to [49 FR 38267, Sept. 28, 1984, as amended at 57 the claim shall remain with the ACO or FR 54715, Nov. 20, 1992] the Agency Director. Resolution of disputes arising under the contract or § 11.53 Securing debtor addresses from with the contractor shall remain with the Department of Treasury. the Agency Contracting Officer who (a) If the ACO is unable to obtain a shall handle such disputes in accord- current address for the debtor, then a ance with the Contract Disputes Act written request shall be sent to the (Pub. L. 95–563). Secretary of the Treasury asking for (5) Judicial enforcement of the claim the debtor’s most current mailing ad- shall be handled by the U.S. Depart- dress from the Department of the ment of Justice.

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(6) The contractor shall adhere to (4) Data required by the GAO Claims Federal and State laws and regulations Collection Litigation Report form. If pertaining to debt collection practices the debt is less than $600, exclusive of including the Fair Debt Collection interest, then referral shall not be Practices Act (15 U.S.C. 1692 et seq.) made to the Department of Justice, ex- (7) Contracts, entered into under pro- cept in unusual cases. visions of this section, shall be subject (b) Referral to the General Accounting to competition to the maximum prac- Office. Debts arising from audits excep- ticable extent. tions taken by the General Accounting (8) The contractor shall be required Office (GAO) shall be referred to GAO to strictly account for all amounts col- before referring such debts to the De- lected. partment of Justice. If the merits of (c) Collection fees. Contracts entered the debt or the propriety of a proposed into under this section may provide compromise, suspension or termination that fees payable to the contractor are in doubt, then the matter should be may be paid only from the amounts referred to GAO prior to referral to the collected from the debtor as deter- Department of Justice. mined by the Contracting Officer. How- (c) Prompt referral. Such referrals ever, such contracts shall be funded shall be made as early as possible con- only from funds available for the time sistent with aggressive collection ac- period in which the contract is exe- tion, and, in any event, well within the cuted. statute of limitation for bringing suit against the debtor. Ordinarily, debt (Approved by the Office of Management and collection referrals will be made to the Budget under control number 3067–0122) Department of Justice within six [49 FR 38267, Sept. 28, 1984; 50 FR 40007, Oct. months after FEMA has determined 1, 1985; 50 FR 42023, Oct. 17, 1985; 51 FR 34605, that a debt is owing in an amount cer- Sept. 30, 1986; 53 FR 47212, Nov. 22, 1988] tain.

§ 11.55 Referral to GAO or Justice De- § 11.56 Analysis of costs. partment. The ACO shall provide for periodic (a) Referral to the Department of Jus- comparison of costs incurred and tice. With the exception of debts de- amounts collected. Data on costs and scribed in paragraph (b), of this sec- corresponding recovery rates for debts tion, those debts which cannot be col- of different types and in various dollar lected or compromised or terminated ranges should be used to compare the in accordance with 3 CFR parts 103 and cost effectiveness of alternative collec- 104 and §§ 11.50 and 11.51, shall be re- tion techniques, establish guidelines ferred to the Department of Justice for with respect to the points at which collection action. All such referrals costs of further collection efforts are shall be done by the ACO, who shall likely to exceed recoveries, assist in consult with the FEMA Office of Gen- evaluating offers in compromise, and eral Counsel. The referral shall be ac- establish minimum debt amounts companied by a copy of the complete below which collection efforts need not debt collection file. In addition, the be taken. Cost and recovery data following information shall be pro- should also be useful in justifying ade- vided: quate resources for an effective collec- (1) Current address of debtor. Effort tion action. shall be made to locate the debtor if he is missing. If the debtor is a corpora- § 11.57 Automation. tion, then the name and address of the The ACO shall work to automate the agent upon whom service of process Agency’s debt collection operations to may be made, shall be provided. the extent that it is cost effective and (2) Credit data which may be in the feasible. form of a credit report or a statement, under oath, of the debtor’s assets and § 11.58 Prevention of overpayments, liabilities. delinquencies, and defaults. (3) History of prior collection ac- The ACO shall establish procedures tions. to identify the causes of overpayments,

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delinquencies, and defaults and the cor- partment of the Treasury and its con- rective actions needed. All debts or stituent agencies. loans, when first established, may be (1) Information submitted to the De- reported to commercial credit bureaus. partment of the Treasury shall include a description of: § 11.59 Office of General Counsel. (i) The size and age of FEMA’s inven- The Office of General Counsel shall tory of delinquent debts; and provide legal advice on claims collec- (ii) The prior collection efforts that tion matters to all debt collection offi- the inventory reflects; and cers and the Agency Collection Officer, (2) In accordance with time limits as needed. and record transmission requirements established by the Department of the § 11.60 Sale of debts due the United Treasury or its constituent agencies, States arising under programs ad- FEMA may submit magnetic media ministered by the Agency. containing information on debtors Where debts due the United States being referred to that Department for arising under programs administered tax refund offset. FEMA may use the by the Agency prove to be uncollect- electronic data transmissions facilities able or unresolvable through proce- of other federal agencies in transmit- dures described in §§ 11.33 through 11.35, ting data on debtors or for referral of 11.41 through 11.48, and 11.50 through debts to the Department of the Treas- 11.55 and where the stated value of the ury. debt is less than $100,000 or such higher (c) FEMA shall establish a collect- limit prescribed by the Attorney Gen- call or toll-free telephone number that eral in accordance with 31 U.S.C. the Department of the Treasury or its 3711(a)(2), excluding penalties and in- constituent agencies will furnish to terest, then the Agency may contract debtors whose refunds have been offset to sell or assign such debts under com- to obtain information from FEMA con- petitive sales procedures. The Agency cerning the offsets taken. may sell or assign debts valued at $600, (d) Tax refund offset procedures de- or less, excluding penalties and inter- scribed in §§ 11.61 through 11.64 shall est, after decision by the ACO. Where apply to debts owed to the United the debt exceeds $600, but is less than States that are past-due and legally en- $100,000 or such higher limit prescribed forceable, and by the Attorney General in accordance (1) Except in the case of a judgment with 31 U.S.C. 3711(a)(2), exclusive of debt, the debt has been delinquent for interest and penalties, the Agency may at least three months but has not been sell or assign such debts only after the delinquent for more than ten years at ACO has coordinated such action with the time the offset is made; and the Department of Justice and the (2) Where FEMA has given the debtor General Accounting Office. at least 60 days from the date of mail- [49 FR 38267, Sept. 28, 1984, as amended at 57 ing of the notification (described in FR 54715, Nov. 20, 1992] § 11.63 of this part) to request a review within FEMA and to present evidence § 11.61 Referral of delinquent debts to that all or part of the debt is not past- Department of the Treasury for off- due or legally enforceable. If the debtor sets against tax refunds. has requested a review and presented (a) FEMA may refer delinquent debts evidence, then FEMA has considered to the Department of the Treasury for the debtor’s evidence and reasons and offset against tax refunds in accord- has determined that all or a part of the ance with 31 U.S.C. 3720A and that De- debt is past-due and legally enforce- partment’s implementing regulations. able; and (b) FEMA will provide information to (3) With respect to which FEMA has the Department of the Treasury within notified or has made a reasonable at- time limits prescribed by the Secretary tempt to notify the debtor that the of the Treasury or his or her designee debt is past-due and, unless repaid and in accordance with agreements en- within 60 days of the mailing of the no- tered into between FEMA and the De- tification the debt will be referred to

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the Department of the Treasury for off- tent that all or a part of the debt is not set against any overpayment of tax; due. A debtor requesting a review with- and in the Agency shall send these argu- (4) Is at least $25.00; and ments to the FEMA office that sent the (5) Meets all other requirements of 31 notice of intent under § 11.63(a)(2); and U.S.C. 3720A and the Department of the (v) Debtor has had an opportunity to Treasury regulations relating to the arrange to inspect and copy records re- eligibility of a debt for tax refund off- lating to the debt by mailing a request set have been satisfied. to the FEMA office sending the notice [63 FR 1068, Jan. 8, 1998] of intent under § 11.63(a)(2); and (vi) If no reply is received from the § 11.62 Administrative charges incurred in referrals for tax refund debtor within 60 days of mailing of the offset. notice, FEMA may refer the debt to the U.S. Department of the Treasury In accordance with § 11.48(e), all administrative costs incurred in connec- after reviewing the file and deter- tion with the referral of the debts to mining that the debt is due; and the Department of the Treasury for (vii) Debtor may negotiate a repay- collection by tax refund offset shall be ment agreement, satisfactory to added to the amount owed by the debt- FEMA, for the repayment of the debt. or. Such costs will include, but not be (b) If the debtor has presented evi- limited to, a pro-rata share of total dence and arguments as described in costs of taking offsets incurred by the subsection (a)(2)(iv) FEMA will refer Department of the Treasury in accord- the debt to the Department of the ance with agreements executed by Treasury only after the FEMA Office of FEMA, the Department of the Treas- General Counsel has rendered a deci- ury and the Department’s constituent sion under provisions of §§ 11.64 and agencies. 11.65 of this subpart concerning the [63 FR 1069, Jan. 8, 1998] debtor’s arguments and evidence, if any, and has determined that the debt § 11.63 Notice to debtor before tax re- is due either in whole or in part. If the fund offset. debtor has submitted evidence in ac- (a) FEMA will refer a debt to the De- cordance with paragraph (a)(2)(iv)(g) of partment of the Treasury for tax re- this section, the FEMA Office of Gen- fund offset only after FEMA: eral Counsel shall notify the debtor of (1) Makes a determination that the the Agency’s final determination. debt is owed to the United States; (c) If the debtor has questions con- (2) Sends the debtor a notice of cerning the debt or procedures being FEMA’s intent to use Department of used, the debtor may contact FEMA at the Treasury tax refund offset that an address and telephone number pro- provides the debtor with items of information described in paragraphs (a)(2) vided in the notice of intent under (i) through (vii) as follows: § 11.63(a)(2). (i) Debtor owes FEMA an amount [63 FR 1069, Jan. 8, 1998] due; and (ii) The debt is past due; and § 11.64 Review within Federal Emer- (iii) Unless the debt is repaid within gency Management Agency. 60 days of the date of FEMA’s mailing (a) Notification by debtor. A debtor re- the notice of intent described above, ceiving notice of intent under FEMA intends to collect the debt by requesting the Department of the § 11.63(a)(2) has the right to present evi- Treasury to take offset to reduce the dence and arguments within 60 days of debtor’s federal tax refund by the mailing of the notice of intent that all amount of the principal amount of the of the debt is not past-due or not le- debt and all accumulated interest, pen- gally enforceable. To exercise this alty, and other charges; and right, the debtor must: (iv) Debtor has an opportunity to (1) Send a written request for review present arguments and evidence within of evidence to the FEMA office sending 60 days of mailing of the notice of in- the notice of intent; and

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(2) State in the request the amount FEMA’s original debt collection deci- disputed and the reasons why the debt- sion. or believes that the debt is not past- [63 FR 1069, Jan. 8, 1998] due or is not legally enforceable; and (3) Include in the request any documents that the debtor wishes to be con- Subpart D—Personnel Claims sidered, or state that additional infor- Regulations mation will be submitted within the remainder of the 60-day period. FEMA is AUTHORITY: 31 U.S.C. 3721. not obligated to consider any of debt- SOURCE: 50 FR 8112, Feb. 28, 1985. or’s evidence received after the 60-day period, except as specified in paragraph § 11.70 Scope and purpose. (c) of this section. (a) The Director, Federal Emergency (b) Submission of evidence. The debtor Management Agency (FEMA), is au- may submit evidence that all or part of thorized by 31 U.S.C. 3721 to settle and the debt is not past due or legally en- pay (including replacement in kind) forceable along with the notification claims of officers and employees of required by paragraph (a) of this sec- FEMA, amounting to not more than tion. Debtor’s failure to submit the no- $25,000 for damage to or loss of personal tification and evidence within the 60- property incident to their service. day period may result in FEMA’s refer- Property may be replaced in-kind at ral of the debt to the Department of the option of the Government. Claims the Treasury with only a review by the are payable only for such types, quan- ACO or the ACO’s designee that tities, or amounts of tangible personal FEMA’s records show that the debt is property (including money) as the ap- actually due FEMA. proving authority shall determine to (c) Late filed requests for review within be reasonable, useful, or proper under FEMA. If the debtor submits a request the circumstances existing at the time for review after the 60-day time limit and place of the loss. In determining in paragraph (a) of this section, FEMA what is reasonable, useful, or proper, shall render a decision as described in the approving authority will consider paragraph (d) of this section, but the type and quantity of property in- FEMA shall not stay offset action as volved, circumstances attending acqui- described in § 11.65. However, if FEMA, sition and use of the property, and after the review of the debtor’s evi- whether possession or use by the claim- dence and arguments, determines that ant at the time of damage or loss was the debtor owes less than the amounts incident to service. that FEMA has taken through offset, (b) The Government does not under- then FEMA shall refund any difference write all personal property losses that between any amounts offset and a claimant may sustain and it does not amounts that the review within the underwrite individual tastes. While the Agency determines is actually owed. Government does not attempt to limit (d) Review of the evidence. FEMA will possession of property by an individual, review the debtor’s arguments and evi- payment for damage or loss is made dence in accordance with procedures only to the extent that the possession set forth in § 11.43(c). of the property is determined to be reasonable, useful, or proper. If individ- [63 FR 1069, Jan. 8, 1998] uals possess excessive quantities of items, or expensive items, they should § 11.65 Stay of tax refund offset action. have such property privately insured. If the debtor notifies FEMA that the Failure of the claimant to comply with debtor is exercising rights described in these procedures may reduce or pre- § 11.64 and submits evidence within clude payment of the claim under this time limits specified in § 11.64, any no- subpart. tice to the Department of the Treasury concerning tax refund offset will be § 11.71 Claimants. stayed until the issuance of a written (a) A claim pursuant to this subpart decision that sustains, amends, or ends may only be made by: (1) An employee collection action resulting from of FEMA; (2) a former employee of

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FEMA whose claim arises out of an in- stantiated by proper and convincing cident occurring before his/her separa- evidence. tion from FEMA; (3) survivors of a per- (b) Claims which are otherwise allow- son named in paragraph (a) (1) or (2) of able under this subpart shall not be this section, in the following order of disallowed solely because the property precedence: (i) Spouse; (ii) children; was not in the possession of the claim- (iii) father or mother, or both or (iv) ant at the time of the damage or loss, brothers or sisters, or both; (4) the au- or solely because the claimant was not thorized agent or legal representative the legal owner of the property for of a person named in paragraphs (a) (1), which the claim is made. For example, (2), and (3) of this section. borrowed property may be the subject (b) A claim may not be presented by of a claim. or for the benefit of a subrogee, as- (c) Subject to the conditions in para- signee, conditional vendor, or other graph (a) of this section, and the other third party. provisions of this subpart, any claim for damage to, or loss of, personal prop- § 11.72 Time limitations. erty incident to service with FEMA may be considered and allowed. The (a) A claim under this part may be following are examples of the principal allowed only if it is in writing, speci- types of claims which may be allowed, fies a sum certain and is received in unless excluded by § 11.74. the Office of General Counsel, Federal (1) Property loss or damage in quarters Emergency Management Agency, or other authorized places. Claims may Washington, DC 20472: (1) Within 2 be allowed for damage to, or loss of, years after it accrues; (2) or if it cannot property arising from fire, flood, hurri- be filed within the time limits of para- cane, other natural disaster, theft, or graph (a)(1) of this section because it other unusual occurrence, while such accrues in time of war or in time of property is located at: armed conflict in which any armed (i) Quarters within the 50 states or force of the United States is engaged or the District of Columbia that were as- if such a war or armed conflict inter- signed to the claimant or otherwise venes within 2 years after the claim ac- provided in-kind by the United States; crues, when the claimant shows good or cause, the claim may be filed within 2 (ii) Any warehouse, office, working years after the cause ceases to exist area, or other place (except quarters) but not more than 2 years after termi- authorized for the reception or storage nation of the war or armed conflict. of property. (b) For purposes of this subpart, a (2) Transportation or travel losses. claim accrues at the time of the acci- Claims may be allowed for damage to, dent or incident causing the loss or or loss of, property incident to trans- damage, or at such time as the loss or portation or storage pursuant to or- damage should have been discovered by ders, or in connection with travel the claimant by the exercise of due under orders, including property in the diligence. custody of a carrier, an agent or agency of the Government, or the claimant. § 11.73 Allowable claims. (3) Motor vehicles. Claims may be al- (a) A claim may be allowed only if: lowed for automobiles and other motor (1) The damage or loss was not caused vehicles damaged or lost by overseas wholly or partly by the negligent or shipments provided by the Govern- wrongful act of the claimant, his/her ment. ‘‘Shipments provided by the agent, the members of his/her family, Government’’ means via Government or his/her private employee (the stand- vessels, charter of commercial vessels, ard to be applied is that of reasonable or by Government bills of lading on care under the circumstances); and (2) commercial vessels, and includes stor- the possession of the property lost or age, unloading, and offloading incident damaged and the quantity possessed is thereto. Other claims for damage to or determined to have been reasonable, loss of automobiles and other major ve- useful, or proper under the cir- hicles may be allowed when use of the cumstances; and (3) the claim is sub- vehicles on a nonreimbursable basis

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was required by the claimant’s super- as fire, flood, hurricane, or by enemy visor, but these claims shall be limited or other belligerent action; to a maximum of $1,000.00. (iii) In cases involving faulty equip- (4) Mobile homes. Claims may be al- ment or defective furniture maintained lowed for damage to or loss of mobile by the Government and used by the homes and their content under the pro- claimant required by the job situation; visions of paragraph (c)(2) of this sec- or tion. Claims for structural damage to (iv) When using a motor vehicle. mobile homes resulting from such (7) Property used for benefit of the Gov- structural damage must contain con- ernment. Claims may be allowed for clusive evidence that the damage was damage to or loss of property (except not caused by structural deficiency of motor vehicles, see §§ 11.73(c)(3) and the mobile home and that it was not 11.74(b)(13)) used for the benefit of the overloaded. Claims for damage to or Government at the request of, or with loss of tires mounted on mobile homes the knowledge and consent of, superior may be allowed only in cases of colli- authority or by reason of necessity. sion, theft, or vandalism. (8) Enemy action or public service. (5) Money. Claims for money in an Claims may be allowed for damage to amount that is determined to be rea- or loss of property as a direct con- sonable for the claimant to possess at sequence of: the time of the loss are payable: (i) Enemy action or threat thereof, or (i) Where personal funds were accept- combat, guerrilla, brigandage, or other ed by responsible Government per- belligerent activity, or unjust confisca- sonnel with apparent authority to re- tion by a foreign power or its nation: ceive them for safekeeping, deposit, (ii) Action by the claimant to quiet a transmittal, or other authorized disposition, but were neither applied as civil disturbance or to alleviate a pub- directed by the owner nor returned; lic disaster; or (ii) When lost incident to a marine or (iii) Efforts by the claimant to save aircraft disaster; human life or Government property. (iii) When lost by fire, flood, hurri- (9) Marine or aircraft disaster. Claims cane, or other natural disaster; may be allowed for personal property (iv) When stolen from the quarters of damaged or lost as a result of marine the claimant where it is conclusively or aircraft disaster or accident. shown that the money was in a locked (10) Government property. Claims may container and that the quarters them- be allowed for property owned by the selves were locked. Exceptions to the United States only when the claimant foregoing ‘‘double lock’’ rule are per- is financially responsible to an agency mitted when the adjudicating author- of the Government other than FEMA. ity determines that the theft loss was (11) Borrowed property. Claims may be not caused wholly or partly by the neg- allowed for borrowed property that has ligent or wrongful act of the claimant, been damaged or lost. their agent, or their employee. The ad- (12)(i) A claim against the Govern- judicating authority should use the ment may be made for not more than test of whether the claimant did their $40,000 by an officer or employee of the best under the circumstances to pro- agency for damage to, or loss of, per- tect the property; or sonal property in a foreign country (v) When taken by force from the that was incurred incident to service, claimant’s person. and— (6) Clothing. Claims may be allowed (A) The officer, or employee was for clothing and accessories custom- evacuated from the country on a rec- arily worn on the person which are ommendation or order of the Secretary damaged or lost: of State or other competent authority (i) During the performance of official that was made in responding to an inci- duties in an unusual or extraordinary- dent of political unrest or hostile act risk situation; by people in that country; and the (ii) In cases involving emergency ac- damage or loss resulted from the evac- tion required by natural disaster such uation, incident, or hostile act; or

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(B) The damage or loss resulted from apply to articles in the personal cus- a hostile act directed against the Gov- tody of the claimant or articles prop- ernment or its officers, or employees. erly checked, provided that reasonable (ii) On paying the claim under this protection or security measures have section, the Government is subrogated been taken, by the claimant. for the amount of the payment to a (7) Articles acquired for other persons. right or claim that the claimant may Claims are not payable for articles in- have against the foreign country for tended directly or indirectly for per- the damage or loss for which the Gov- sons other than the claimant or mem- ernment made the payment. bers of the claimants’ immediate (iii) Amounts may be obligated or ex- household. This prohibition includes pended for claims under this section articles acquired at the request of oth- only to the extent provided in advance ers and articles for sale. in appropriation laws. (8) Property used for business. Claims are not payable for property normally § 11.74 Claims not allowed. used for business or profit. (a) A claim is not allowable if: (9) Unserviceable property. Claims are (1) The damage or loss was caused not payable for wornout or unservice- wholly or partly by the negligent or able property. wrongful act of the claimant, claim- (10) Violation of law or directive. ant’s agent, claimant’s employee, or a Claims are not payable for property ac- member of claimant’s family; quired, possessed, or transported in (2) The damage or loss occurred in violation of law, regulation, or other quarters occupied by the claimant directive. This does not apply to limi- within the 50 states and the District of tation imposed on the weight of ship- Columbia that were not assigned to the ments of household goods. claimant or otherwise provided in-kind by the United States; (11) Intangible property. Claims are (3) Possession of the property lost or not payable for intangible property damaged was not incident to service or such as bank books, checks, promis- not reasonable or proper under the cir- sory notes, stock certificates, bonds, cumstances. bills of lading, warehouse receipts, bag- (b) In addition to claims falling with- gage checks, insurance policies, money in the categories of paragraph (a) of orders, and traveler’s checks. this section, the following are exam- (12) Government property. Claims are ples of claims which are not payable: not payable for property owned by the (1) Claims not incident to service. United States unless the claimant is fi- Claims which arose during the conduct nancially responsible for the property of personal business are not payable. to an agency of the Government other (2) Subrogation claims. Claims based than FEMA. upon payment or other consideration (13) Motor vehicles. Claims for motor to a proper claimant are not payable. vehicles, except as provided for by (3) Assigned claims. Claims based upon § 11.73(c)(3), will ordinarily not be paid. assignment of a claim by a proper However, in exceptional cases, meri- claimant are not payable. torious claims for damage to or loss of (4) Conditional vendor claims. Claims motor vehicles, limited to a maximum asserted by or on behalf of a condi- of $1,000.00, may be recommended to tional vendor are not payable. the Office of General Counsel for con- (5) Claims by improper claimants. sideration and approval for payment. Claims by persons not designated in (14) Enemy property. Claims are not § 11.71 are not payable. payable for enemy property, including (6) Articles of extraordinary value. war trophies. Claims are not payable for valuable or (15) Losses recoverable from carrier, in- expensive articles, such as cameras, surer or contractor. Claims are not pay- watches, jewelry, furs, or other articles able for losses, or any portion thereof, of extraordinary value, when shipped which have been recovered or are re- with household goods or as unaccom- coverable from a carrier, insurer or panied baggage (shipment includes under contract except as permitted storage). This prohibition does not under § 11.75.

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(16) Fees for estimates. Claims are not and prior to the filing of a claim normally payable for fees paid to ob- against the Government. tain estimates of repair in conjunction (3) If it is apparent that the damage with submitting a claim under this or loss is attributable to packing, stor- subpart. However, where, in the opin- age, or unpacking while in the custody ion of the adjudicating authority, the of the Government, no demand need be claimant could not obtain an estimate made against the carrier. without paying a fee, such a claim may (b) Whenever property which is dam- be considered in an amount reasonable aged, lost, or destroyed incident to the in relation to the value for the cost of claimant’s service is insured in whole repairs of the articles involved, pro- or in part, the claimant must make de- vided that the evidence furnished mand in writing against the insurer for clearly indicates that the amount of reimbursement under terms and condi- the fee paid will not be deducted from tions of the insurance coverage, prior the cost of repairs if the work is ac- to the filing of the concurrent claim complished by the estimator. against the Government. (17) Items fraudulently claimed. Claims (c) Failure to make a demand on a are not payable for items fraudulently carrier or insurer or to make all rea- claimed. When investigation discloses sonable efforts to protect and pros- that a claimant, claimant’s agent, ecute rights available against a carrier claimant’s employee, or member of or insurer and to collect the amount claimant’s family has intentionally recoverable from the carrier or insurer misrepresented an item claimed as to may result in reducing the amount re- cost, condition, costs to repair, etc., coverable from the Government by the the item will be disallowed in its en- maximum amount which would have tirety even though some actual damage been recoverable from the carrier or in- has been sustained. However, if the re- surer, had the claim been timely or mainder of the claim is proper, it may diligently prosecuted. However, no de- be paid. This does not preclude appro- duction will be made where the cir- priate disciplinary action if warranted. cumstances of the claimant’s service (18) Minimum amount. Loss or damage preclude reasonable filing of such a amounting to less than $10. claim or diligent prosecution, or the evidence indicates a demand was im- § 11.75 Claims involving carriers and practicable or would have been insurers. unavailing. In the event the property which is (d) Following the submission of the the subject of a claim was lost or dam- claim against the carrier or insurer, aged while in the possession of a car- the claimant may immediately submit rier or was insured, the following pro- a claim against the Government in ac- cedures will apply: cordance with the provisions of this (a) Whenever property is damaged, subpart, without waiting until either lost, or destroyed while being shipped final approval or denial of the claim is pursuant to authorized travel orders, made by the carrier or insurer. the owner must file a written claim for (1) Upon submission of a claim to the reimbursement with the last commer- Government, the claimant must certify cial carrier known or believed to have in the claim that no recovery (or the handled the goods, or the carrier amount of recovery) has been gained known to be in possession of the prop- from a carrier or insurer, and enclose erty when the damage or loss occurred, all correspondence pertinent thereto. according to the terms of its bill of lad- (2) If the carrier or insurer has not ing or contract, before submitting a taken final action on the claim against claim against the Government under them, by the time the claimant sub- this subpart. mits a claim to the Government, the (1) If more than one bill of lading or claimant will immediately notify them contract was issued, a separate demand to address all correspondence in regard should be made against the last carrier to the claim to him/her, in care of the on each such document. General Counsel of FEMA. (2) The demand should be made with- (3) The claimant shall timely advise in the time limit provided in the policy the General Counsel in writing, of any

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action which is taken by the carrier or (4) Cost, date, and place of acquisi- insurer on the claim. On request, the tion of each price of property damaged claimant also will furnish such evi- or lost; dence as may be required to enable the (5) Two itemized repair estimates, or United States to enforce the claim. value estimates, whichever is applica- (e) When a claim is paid by FEMA, ble; the claimant will assign to the United (6) Copies of police reports, if applica- States, to the extent of any payment ble; on the claim accepted by claimant, all (7) A statement from the claimant’s rights, title, and interest in any claim supervisor that the loss was incident to against the carrier, insurer, or other service; party arising out of the incident on (8) A statement that the property which the claim against the Govern- was or was not insured; ment is based. After payment of the (9) With respect to claims involving claim by the Government, the claimant thefts or losses in quarters or other will, upon receipt of any payment from places where the property was reason- a carrier or insurer, pay the proceeds ably kept, a statement as to what secu- to the United States to the extent of rity precautions were taken to protect the payment received by the claimant the property involved; from the United States. (10) With respect to claims involving (f) When a claimant recovers for the property being used for the benefit of loss from the carrier or insurer before the Government, a statement by the the claim against the Government claimant’s supervisor that the claim- under this subpart is settled, the ant was required to provide such prop- amount or recovery shall be applied to erty or that the claimant’s providing it the claim as follows: was in the interest of the Government; (1) When the amount recovered from and a carrier, insurer, or other third party (11) Other evidence as may be re- is greater than or equal to the claim- quired. ant’s total loss as determined under (b) Single claim. A single claim shall this subpart, no compensation is allow- be presented for all lost or damaged able under this subpart. property resulting from the same inci- (2) When the amount recovered is less dent. If this procedure causes a hard- than such total loss, the allowable ship, the claimant may present an ini- amount is determined by deducting the tial claim with notice that it is a par- recovery from the amount of such total tial claim, an explanation of the cir- loss; cumstances causing the hardship, and (3) For the purpose of this paragraph an estimate of the balance of the claim (f) the claimant’s total loss is to be de- and the date it will be submitted. Pay- termined without regard to the $25,000 ment may be made on a partial claim if maximum set forth above. However, if the adjudicating authority determines the resulting amount, after making that a genuine hardship exists. this deduction, exceeds $25,000, the (c) Loss in quarters. Claims for prop- claimant will be allowed only $25,000. erty loss in quarters or other authorized places should be accompanied by a § 11.76 Claims procedures. statement indicating: (a) Filing a claim. Applicants shall file (1) Geographical location; claims in writing with the General (2) Whether the quarters were as- Counsel, Federal Emergency Manage- signed or provided in-kind by the Gov- ment Agency, Washington, DC 20472. ernment; Each written claim shall contain, as a (3) Whether the quarters are regu- minimum: larly occupied by the claimant; (1) Name, address, and place of em- (4) Names of the authority, if any, ployment of the claimant; who designated the place of storage of (2) Place and date of the damage or the property if other than quarters; loss: (5) Measures taken to protect the (3) A brief statement of the facts and property; and circumstances surrounding the damage (6) Whether the claimant is a local or loss; inhabitant.

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(d) Loss by theft or robbery. Claims for (xiii) Insurance certificate or policy property loss by theft or robbery if losses are privately insured; should be accompanied by a statement (xiv) Copy of the demand on carrier indicating: or insured, or both, when required, and (1) Geographical location; the reply, if any; (2) Facts and circumstances sur- (xv) Action taken by the claimant to rounding the loss, including evidence of locate missing baggage or household the crime such as breaking and enter- effects, including related corresponding, capture of the thief or robber, or ence. recovery of part of the stolen goods; (f) Marine or aircraft disaster. Claims and for property losses due to marine or (3) Evidence that the claimant exer- aircraft disaster should be accom- cised due care in protecting the prop- panied by a copy of orders or other evi- erty prior to the loss, including infor- dence to establish the claimant’s right mation as to the degree of care nor- to be, or to have property on board. mally exercised in the locale of the loss due to any unusual risks involved. (g) Enemy action, public disaster, or (e) Transportation losses. Claims for public service. Claims for property transportation losses should be accom- losses due to enemy action, public dis- panied by the following: aster, or public service should be ac- (1) Copies of orders authorizing the companied by: travel, transportation, or shipment or (1) Copies of orders or other evidence a certificate explaining the absence of establishing the claimant’s required orders and stating their substance; presence in the area involved; and (2) Statement in cases where prop- (2) A detailed statement of facts and erty was turned over to a shipping offi- circumstances showing an applicable cer, supply officer, or contract packer case enumerated in § 11.73(c)(8). indicating: (h) Money. Claims for loss of money (i) Name (or designation) and address deposited for safekeeping, transmittal, of the shipping officer, supply officer, or other authorized disposition should or contract packer indicating; be accompanied by: (ii) Date the property was turned (1) Name, grade, and address of the over; person or persons who received money (iii) Inventoried condition when the and any others involved; property was turned over; (2) Name and designation of the au- (iv) When and where the property was thority who authorized such person or packed and by whom; persons to accept personal funds and (v) Date of shipment; the disposition required; and (vi) Copies of all bills of lading, in- (3) Receipts and written sworn state- ventories, and other applicable shipments explaining the failure to ac- ping documents; count for funds or return them to the (vii) Date and place of delivery to the claimant. claimant; (viii) Date the property was un- (i) Motor vehicles or mobile homes in packed by the carrier, claimant, or transit. Claims for damage to motor ve- Government; hicles or mobile homes in transit (ix) Statement of disinterested wit- should be accompanied by a copy of or- nesses as to the condition of the prop- ders or other available evidence to es- erty when received and delivered, or as tablish the claimant’s lawful right to to handling or storage; have the property shipped and evidence (x) Whether the negligence of any to establish damage in transit. Government employee acting within the scope of his/her employment caused § 11.77 Settlement of claims. the damage or loss; (a) The General Counsel, FEMA, is (xi) Whether the last common carrier authorized to settle (consider, ascer- or local carrier was given a clear retain, adjust, determine, and dispose of, ceipt, except for concealed damages; whether by full or partial allowance or (xii) Total gross, tare, and new disallowance) any claim under this sub- weight of shipment; part.

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(b) The General Counsel may formu- (c) Replacement of lost or damaged late such procedures and make such re- property may be made in-kind when- delegations as may be required to ful- ever appropriate. fill the objectives of this subpart. (c) The General Counsel shall con- § 11.79 Attorney’s fees. duct or request the Office of Inspector No more than 10 per centum of the General to conduct such investigation amount paid in settlement of each in- as may be appropriate in order to de- dividual claim submitted and settled termine the validity of a claim. under this subpart shall be paid or de- (d) The General Counsel shall notify livered to or received by any agent or a claimant in writing of action taken attorney on account of services ren- on their claim, and if partial or full dered in connection with that claim. A disallowance is made, the reasons person violating this section shall be fined not more than $1,000. therefor. (e) In the event a claim submitted (Information collection approved by Office of against a carrier under § 11.75 has not Management and Budget under Control No. been settled, before settlement of the 3067–0167) claim against the Government pursuant to this subpart, the General Coun- PART 12—ADVISORY COMMITTEES sel shall notify such carrier or insurer to pay the proceeds of the claim to Sec. FEMA to the extent FEMA has paid 12.1 Purpose and applicability. 12.2 Definitions. such to claimant in settlement. 12.3 Policy. (f) The settlement of a claim under 12.4 Interpretations. this subpart, whether by full or partial 12.5 Advisory committee management offi- allowance or disallowance, is final and cer. conclusive. 12.6 Establishment of advisory committees. 12.7 Charter. 12.8 Meetings. § 11.78 Computation of amount of 12.9 Closed meetings. award. 12.10 Designated Federal officer or em- (a) The amount allowed for damage ployee. to or loss of any items of property may 12.11 Public notice. not exceed the cost of the item (either 12.12 Minutes. 12.13 Transcripts of the advisory committee the price paid in cash or property, or meetings and agency proceedings. the value at the time of acquisition if 12.14 Annual comprehensive review. not acquired by purchase or exchange), 12.15 Termination and renewal of advisory and there will be no allowance for re- committees. placement cost or for appreciation in 12.16 Reports about the advisory commit- the value of the property. Subject to tees. these limitations, the amount allow- 12.17 Availability of documents and information on advisory committees. able is either: 12.18 Uniform pay guidelines. (1) The depreciated value, imme- 12.19 Fiscal and administrative responsibil- diately prior to the loss or damage, of ities. property lost or damaged beyond eco- AUTHORITY: Federal Advisory Committee nomical repair, less any salvage value; Act, 5 U.S.C. app. 1; Reorganization Plan No. or 3 of 1978; E.O. 12127; E.O. 12148; E.O. 12024.

(2) The reasonable cost or repairs, SOURCE: 45 FR 64180, Sept. 29, 1980, unless when property is economically repair- otherwise noted. able, provided that the cost of repairs does not exceed the amount allowable § 12.1 Purpose and applicability. under paragraph (a)(1) of this section. (a) The regulations in this part im- (b) Depreciation in value is deter- plement the Federal Advisory Com- mined by considering the type of arti- mittee Act, Executive Order 12024 and cle involved, its costs, its conditions General Services Administration Regu- when damaged or lost, and the time lation 41 CFR part 101–6. The provisions elapsed between the date of acquisition of the Federal Advisory Committee Act and the date of damage or loss. in this part shall apply to all advisory

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committees established by the Federal Any officer of the Federal Government Emergency Management Agency means any agency official or employee (FEMA), including advisory commit- of the Federal government designated tees created pursuant to any act of to perform duties with respect to an Congress relating to the United States advisory committee established under Fire Administration, Federal Insurance this part. Administration, or any other compo- Nonstatutory advisory committee means nent of the Federal Emergency Man- an advisory committee not established agement Agency, except to the extent by statute or reorganization plan. that any act of Congress establishing an advisory committee reporting to the § 12.3 Policy. agencies specifically provides other- In determining whether an advisory wise. committee should be created, and in (b) This part does not apply to inter- reviewing the functions of operating agency advisory committees or advi- advisory committees, the Agency will: sory committees established by the (a) Establish new advisory commit- President unless specifically made ap- tees only when they are determined to plicable by the establishing authority. be essential, keeping their number to (c) This part does not apply to any the minimum necessary to accomplish local group, contractor, grantee, or the assigned mission of the agency or other organization whose primary its components; function is to render public service (b) Provide standards and uniform with respect to a Federal program, or procedures to govern the establish- any state or local committee, counsel, ment, operation, administration, and board, commission, or similar group es- duration of the advisory committees; tablished to advise or make rec- (c) Terminate the advisory commit- ommendations to State or local offi- tees when they are no longer necessary cials or agencies. to carry out the purposes for which they were established; and [45 FR 64180, Sept. 29, 1980, as amended at 48 (d) Keep the Congress and the public FR 44543, Sept. 29, 1983; 50 FR 40007, Oct. 1, informed with respect to the number, 1985] purpose, membership, activity, and § 12.2 Definitions. cost of the advisory committees. As used in this part— § 12.4 Interpretations. Act means the Federal Advisory Com- Except as specifically authorized in mittee Act (86 Stat. 770). writing by the Director, including in- Advisory Committee is used as per the ternal instructions, no interpretation meaning set forth in section 3(2) of the of the meaning of the regulations in Act. this part by any employee or officer of Agency means the Federal Emergency the Agency, other than a written inter- Management Agency, established by pretation by the General Counsel, will Presidential Reorganization Plan No. 3 be recognized to be binding upon the of 1978, or any component thereof. Agency. Administrator, GSA means the Admin- istrator of General Services. § 12.5 Advisory committee manage- Director means the Director of the ment officer. Federal Emergency Management Agen- (a) The Director will designate as ad- cy. visory committee management officer FEMA means the Federal Emergency the Chief, Staff Planning and Evalua- Management Agency. tion, Office of Administrative Support, GSA means the General Services Ad- who shall: ministration. (1) Exercise control and supervision Presidential Advisory Committee means over the establishment, procedures, an advisory committee which advises and accomplishments of the advisory the President of the United States. committees established by the Direc- Secretariat means the Committee tor; and Management Secretariat of the Gen- (2) Assemble and maintain the re- eral Services Administration. ports, records, and other papers of any

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advisory committee during its exist- (c) Consultation with the Secretariat ence. may be in the form of a letter from the (b) The name of the Advisory Com- Agency describing the nature and pur- mittee Management Officer designated pose of the proposed advisory com- in accordance with this part shall be mittee, including an explanation of provided to the Secretariat. why the functions of the proposed committee could not be performed by [45 FR 64180, Sept. 29, 1980, as amended at 47 FEMA or by an existing committee. FR 13149, Mar. 29, 1982; 48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984] The letter should describe the Agency’s plan to attain balanced membership on § 12.6 Establishment of advisory com- the proposed committee, as prescribed mittees. in paragraph (b)(2) of this section. If the Secretariat is satisfied that the es- (a) No advisory committee shall be tablishment of the advisory committee established under this part unless such will be in accord with the Act, the establishment is: Agency shall certify in writing that (1) Specifically authorized by statute creation of the advisory committee is or the President of the United States; in the public interest. or (d) Unless otherwise specifically pro- (2) Determined as a matter of formal vided by statute or Presidential direc- record by the Director after consulta- tive, advisory committees shall be uti- tion with the Secretariat, with timely lized solely for advisory functions. notice published in the FEDERAL REG- ISTER as a matter of the public inter- § 12.7 Charter. est, in connection with the perform- (a) No advisory committee estab- ance of duties imposed on the agency lished under this part shall meet or by law. take any action until an advisory com- (b) The determination required by mittee charter has been filed with the paragraph (a)(2) of this section shall: Agency and the standing Committee or (1) Contain a clearly defined purpose Committees of the Senate and House of for the advisory committee; Representatives having legislative ju- (2) Require the membership of the ad- risdiction over the FEMA component visory committee to be fairly balanced to which the advisory committee ren- in terms of the points of view rep- ders its advice. resented in the functions performed by (b) The charter required by para- the advisory committee; graph (a) of this section shall contain (3) Contain appropriate provisions to at least the following information: assure that the advice and rec- (1) The committee’s official designa- ommendations of the advisory com- tions; mittee will not be inappropriately in- (2) The committee’s objectives and fluenced by the appointing authority the scope of its activities; or by any special interest, but will in- (3) The period of time necessary for stead be the result of the advisory com- the committee to carry out its pur- mittee’s independent judgment; poses; (4) Contain provisions dealing with (4) The FEMA component and official the date for submission of reports (if to whom the committee reports; any), the duration of the advisory com- (5) The FEMA component responsible mittee, and the publication of reports for providing the necessary support for and other materials, to the extent that the committee; the agency determines the provisions (6) A description of the duties for of § 12.16 of this part to be inadequate; which the committee is responsible, and and, if such duties are not solely advi- (5) Contain provisions which will as- sory, specification of the authority for sure that the advisory committee will such functions; have adequate staff (either supplied by (7) The estimated annual operating the Agency or employed by it), will be cost in dollars and man years for the provided adequate quarters, and will committee; have funds available to meet its other (8) The estimated number in fre- necessary expenses. quency of committee meetings;

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(9) The committee’s termination open to the public. Interested persons date, if less than 2 years from the date may also be permitted by the com- of committee’s establishment; and mittee chairman to speak at such (10) The date the charter is filed. meetings in accordance with the proce- (c) A copy of the charter required by dures established by the committee. paragraph (a) of this section shall also be furnished at the time of filing to the § 12.9 Closed meetings. Library of Congress, Exchange and Gift (a) The requirements of § 12.8 (c) and Division, Federal Advisory Committee, (d) of this part that meetings shall be Washington, DC 20540. open to the public and that the public (d) An amendment to the charter shall be afforded an opportunity to par- may be filed whenever there is a sub- ticipate in such meetings shall not stantial change regarding matters stat- apply to any advisory committee meet- ed in the original charter. ing which the President or the Director (e) The requirements of this section determines is concerned with matters shall also apply to committees utilized listed in 5 U.S.C. 552b(c). as advisory committees, even though not expressly established for that pur- (b) An advisory committee which pose. seeks to have all or part of its meetings closed shall notify the Director be- § 12.8 Meetings. fore the scheduled date of the meeting. The notification shall be in writing and (a) Advisory committees established shall specify the reasons why any part under this part shall not hold any of the meeting should be closed. meetings, nor shall they render any advice, except at the call of, or with the (c) A request that the meeting be advice and approval of, the Federal Of- closed will be granted upon determina- ficer or employee designated in accord- tion by the Director that the request is ance with § 12.10 of this part, who shall in accordance with the policies of this also approve the agenda of such meet- part. The Director’s determination will ings. Timely notice of each meeting be in writing and will state the specific shall be provided in accordance with reasons for closing all or part of the § 12.11 of this part. meeting. The determination will be (b) The agenda required by paragraph made available to the public upon re- (a) of this section shall list the matters quest. to be considered at the meeting. It (d) The Director may delegate re- shall also indicate when any part of the sponsibility for making the determina- meeting will concern matters within tion required by paragraph (c) of this the exceptions of the (Government) section. In any case where the deter- Sunshine Act, 5 U.S.C. 552b, and § 12.9 of mination to close the meeting is made this part. by the Director’s delegate, the deter- (c) Subject to the provisions of § 12.9 mination will be reviewed by the Gen- of this part, each advisory committee eral Counsel. meeting shall be open to the public. (e) When a meeting is closed to the Meetings which are completely or part- public, the advisory committee shall ly open to the public shall be held at issue a report, at least annually, set- reasonable times and at such a place ting forth a summary of its activities that is reasonably accessible to the in such meetings, addressing those republic. The size of the meeting room lated matters as would be informative should be determined by such factors to the public and consistent with the as the size of the committee, the num- policy of 5 U.S.C. 552b(c) and of this ber of members of the public who could part. Notice of the availability of such reasonably be expected to attend, the annual reports shall be published in ac- number of persons who attended simi- cordance with § 12.11 of this part. lar meetings in the past, and the resource facilities available. § 12.10 Designated Federal officer or (d) Any member of the public shall be employee. permitted to file a written statement (a) The Agency will designate an offi- with the committee related to any cer or employee of the Federal Govern- meeting that is completely or partly ment to chair or attend each meeting

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of each advisory committee established published for reasons of national secu- under this part. rity shall be submitted to the Adminis- (b) No advisory committee shall con- trator GSA with a statement of rea- duct any meeting in the absence of the sons supporting such request at least 30 Federal employee or officer designated days before the meeting is scheduled. in accordance with paragraph (a) of Where, however, there is a significant this section. likelihood of severe damage to prop- (c) The Federal officer or employee erty or injury to individuals, the notice designated in accordance with para- period may be reduced as necessary to graph (a) of this section is authorized, minimize such damage or injury. whenever he/she determines it to be in (c) In addition to the notice required the public interest, to adjourn any by paragraph (b) of this section, other committee meeting he/she is des- forms of notice such as public releases ignated to chair or attend. and notices by mail should be used to inform the public of advisory com- § 12.11 Public notice. mittee meetings. (a) The Agency’s determination pro- (d) The Committee Management Offi- cedure described by § 12.6 of this part cer, in coordination with the Office of for the creation of the advisory com- Public Affairs, should, where practical, mittee, and a description of the nature maintain lists of people and organiza- and purpose of the committee, should tions interested in advisory commit- be published in the FEDERAL REGISTER tees and notify them of meetings by at least 15 days prior to the filing of mail. the committee’s charter, unless the (e) Notice of the availability of the Secretariat, for good cause, authorizes annual reports required by § 12.9(e) of a shorter period of time between publi- this part will be published in the FED- cation of the notice and the filing of ERAL REGISTER no later than 60 days the charter. after their completion. Notice will in- (b) Except when the Administrator clude instructions which will allow the GSA determines contrarily for reasons public access to the reports. of national security, timely notice of each advisory committee meeting, § 12.12 Minutes. whether open or closed to the public, (a) Detailed minutes of each advisory shall be published in the FEDERAL REG- committee meeting shall be kept and ISTER at least 15 days before the meet- shall contain a record of the persons ing date. Such notice should state the present, a complete summary of mat- name of the advisory committee, the ters discussed and conclusions reached, time, place and purpose of the meeting, and copies of all reports received, and should include, where appropriate, issued, or approved by the advisory a summary of the meeting agenda. No- committee. The record of persons tice ordinarily should state that the present shall include the time and meeting is open to the public or ex- place of the meeting, a list of advisory plain why the meeting or any portion committee members and staff and of the meeting is to be closed. Notices agency employees present at the meet- shorter than the time prescribed by ing, a list of members of the public who this paragraph may be provided in presented oral or written statements, emergency situations, and the reasons and an estimated number of members for such emergency exceptions should of the public who attended the meet- be made part of the meeting notice. ing. The minutes shall describe the ex- Due to the emergency nature of FEMA’s tent to which the meeting was open to many programs, it is contemplated that the public and the extent of public par- advisory committees may have to be estab- ticipation. If it is impracticable to at- lished or meetings called on fairly short tach to the minutes of the meeting any notice; however, every effort should be report received, issued, or approved by made to comply with the notice require- the advisory committee, then the min- ment, except in cases where delay may re- utes will describe the report in suffi- sult in harm to individuals or damage to cient detail to enable any person re- property. A request for a determination questing the report to readily identify that notice of a meeting should not be it.

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(b) The accuracy of all minutes shall (5) Whether information or rec- be certified by the chairperson of the ommendations could be obtained from advisory committee concerned, except sources within the Agency or from in the case of a subcommittee or sub- other advisory committees already in group of the advisory committee, in existence; which case the accuracy of the minutes (6) The degree of duplication of effort shall be certified by the chairperson of by the committee as compared with the subcommittee or subgroup con- that of other parts of the Agency or cerned and co-signed by the chairperson other advisory committees; and of the advisory committee. (7) The estimated annual cost of the committee. § 12.13 Transcripts of the advisory (c) The annual review required by committee meetings and agency this section shall be conducted on a proceedings. calendar year basis, and results of the Copies of transcripts of advisory review shall be included in the annual committee meetings which have been report to the Secretariat required by prepared will be made available to any § 12.16(b) of this part. The report shall person at the actual cost of duplica- contain a justification of each advisory tion, as prescribed in § 12.17 of this committee which the Agency deter- part. mines should be continued, making reference, as appropriate, to the factors § 12.14 Annual comprehensive review. specified in paragraph (b) of this sec- (a) The Agency will conduct an an- tion. nual comprehensive review of the ac- (d) The review will examine all advi- tivities and responsibilities of each ad- sory committees, and committees visory committee to determine: found to be no longer needed shall be (1) Whether such committee is car- terminated. Advisory committees es- rying out its purpose; tablished by act of Congress or the (2) Whether, consistent with the pro- President of the United States will be visions of applicable statutes, the re- reviewed, and if appropriate, their ter- sponsibilities assigned to it should be mination will be recommended. revised; (3) Whether it should be merged with § 12.15 Termination and renewal of ad- any other advisory committee or com- visory committees. mittees; or (a) Each advisory committee shall (4) Whether it should be abolished. terminate not later than the expiration (b) Pertinent factors to be considered of the 2 year period beginning on the in the comprehensive review required date of its establishment, unless: by paragraph (a) of this section in- (1) In the case of an advisory com- cludes the following: mittee established by the President or (1) The number of times the com- an officer of the Federal Government, mittee has met in the past year; such advisory committee is renewed by (2) The number of reports or rec- the President or such officer by appro- ommendations submitted by the com- priate action prior to the end of such mittee; period; or (3) An evaluation of the substance of (2) In the case of an advisory com- the reports or recommendations sub- mittee established by an Act of Con- mitted by the committee, regarding gress, its duration is otherwise pro- the Agency’s programs or operations; vided by law. (4) An evaluation of the utilization (b) Any advisory committee which is by the Agency of the committee’s pol- renewed by the President or any officer icy formation recommendations in: of the Federal Government may be con- program planning, decision making, tinued only for successive 2-year peri- more effective achievement of program ods by appropriate action taken by the objectives, and more economical ac- President or such officer prior to the complishment of programs in general, date on which the advisory committee with emphasis in such evaluation on would otherwise terminate. the preceding 12 month period of the (c) Before it renews a non-statutory committee’s work; advisory committee in accordance with

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paragraph (a) or (b) of this section, the made during any given month the re- Agency will inform the Secretariat by port of the Secretariat is not required. letter, not more than 60 days nor less [45 FR 64180, Sept. 29, 1980, as amended at 48 than 30 days before the committee ex- FR 44543, Sept. 29, 1983] pires, of the following: (1) Its determination that a renewal § 12.17 Availability of documents and is necessary and is in the public inter- information on advisory commit- est; tees. (2) The reasons for its determination; (a) Subject to the provisions of (3) The Agency’s plan to attain bal- §§ 12.12 and 12.13 of this part, the anced membership on the committee; records, reports, transcripts, minutes, (4) An explanation of why the com- appendices, working papers, drafts, mittee’s functions cannot be performed studies, agenda, or other documents by the Agency or by an existing advi- which were made available to or pre- sory committee. pared for by each advisory committee (d) After concurrence by the Secre- shall be available for public inspection tariat, the Agency will certify in writ- and copying at a single location in the ing that the renewal of the advisory FEMA Headquarters, Washington, DC, committee is in the public interest, in accordance with the regulations in and will publish a notice of the renewal part 5 of this chapter. (b) The Agency will maintain system- in the FEDERAL REGISTER, and will file a new charter in accordance with § 12.7 atic information on the nature, func- of this part. tions, and operations of each of its advisory committees. A complete set of (e) Any advisory committee estab- the charters of the Agency’s advisory lished by an Act of Congress shall file committees and copies of the annual a charter in accordance with § 12.7 of reports required by § 12.16 will be main- this part upon the expiration of each tained for public inspection in the successive 2-year period following the FEMA Headquarters. date of enactment of the Act establishing such advisory committee. [45 FR 64180, Sept. 29, 1980, as amended at 47 (f) No advisory committee required FR 13150, Mar. 29, 1982] under this section to file a charter § 12.18 Uniform pay guidelines. shall take any action, other than preparation and filing of such charter, be- (a) Members. Subject to the provisions tween the date the new charter is re- of this section, the pay of any member quired and the date on which such of an advisory committee shall be fixed charter is actually filed. at the daily equivalent rate of the FEMA general salary schedule unless § 12.16 Reports about the advisory the member is appointed as a consult- committees. ant, to be compensated as provided in paragraph (c) of this section. In deter- (a) The Agency will furnish a report mining an appropriate rate of pay for of the activities of the FEMA advisory the members of an advisory com- committees annually to the Adminis- mittee, consideration shall be given to trator, General Services Administra- the significance, scope and technical tion, in accordance with the Federal complexity of the matters with which Property Management Regulations. the advisory committee is concerned, (b) The Agency will furnish a report and the qualifications required of the of the activities of FEMA advisory members of the advisory committee. committees annually to the Secre- The pay of the members of an advisory tariat. committee shall not be fixed at a rate (c) The Agency will inform the Secre- higher than the daily equivalent of the tariat, by letter, of the termination of, maximum rate for GS–15 unless the Di- or other significant changes with re- rector has determined that, under the spect to, its advisory committees no factors set forth in this paragraph, a later than 10 working days following higher rate of pay is justified and nec- the end of the month in which the com- essary. Such a determination will be mittee is changed. If no changes are reviewed annually by the Director.

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(b) Advisory committee staff. The pay the activities of the FEMA advisory of each member of the staff of an advi- committees. sory committee shall be fixed at a rate (c) Support services shall be provided of the general salary schedule in which by FEMA for each advisory committee the staff member’s position would be established by or reporting to it, unless appropriately compensated for in the the establishing authority provides FEMA evaluation system applicable to otherwise. Where such advisory com- the position. Pay of the member of the mittee reports to more than one agen- staff of an advisory committee shall cy, only one agency or component not be fixed at a rate higher than the thereof shall be responsible for support daily equivalent of the maximum rate services at any one time, and the es- for a GS–15 unless the Director or his tablishing authority shall designate designee has determined that, under its the agency responsible for providing evaluation system, the staff member’s such services. position would appropriately be placed [45 FR 64180, Sept. 29, 1980, as amended at 48 in the General Salary Schedule at a FR 44543, Sept. 29, 1983] grade higher than GS–15. Such a determination will be reviewed by the Direc- tor annually. PART 13—UNIFORM ADMINISTRA- (c) Consultants. The rate of pay of a TIVE REQUIREMENTS FOR GRANTS consultant to an advisory committee AND COOPERATIVE AGREE- shall not exceed the maximum rate of MENTS TO STATE AND LOCAL pay which FEMA may pay experts and GOVERNMENTS consultants under 5 U.S.C. 3109. Consid- eration shall be given to the qualifica- Subpart A—General tions required of the consultant and the significance, scope, and technical Sec. 13.1 Purpose and scope of this part. complexity of the work in fixing the 13.2 Scope of subpart. rate of pay for the consultants. 13.3 Definitions. (d) Voluntary services. The provisions 13.4 Applicability. of this section shall not prevent FEMA 13.5 Effect on other issuances. from accepting the voluntary services 13.6 Additions and exceptions. of a member of an advisory committee, or a member of the staff of an advisory Subpart B—Pre-Award Requirements committee, provided that FEMA has 13.10 Forms for applying for grants. the authority to accept such services 13.11 State plans. without compensation. 13.12 Special grant or subgrant conditions (e) Reimbursable travel expenses. The for ‘‘high-risk’’ grantees. members of an advisory committee and the staff thereof, while engaged in the Subpart C—Post-Award Requirements performance of their duties away from FINANCIAL ADMINISTRATION their home or regular places of business, may be allowed travel expenses, 13.20 Standards for financial management including per diem and in lieu of systems. subsistences, as authorized by 5 U.S.C. 13.21 Payment. 13.22 Allowable costs. 5703 for persons employed intermit- 13.23 Period of availability of funds. tently in the government service. 13.24 Matching or cost sharing. 13.25 Program income. § 12.19 Fiscal and administrative re- 13.26 Non-Federal audit. sponsibilities. (a) The Comptroller, FEMA, shall CHANGES, PROPERTY, AND SUBAWARDS keep such records as will fully disclose 13.30 Changes. the disposition of any funds which may 13.31 Real property. be at the disposal of any FEMA advi- 13.32 Equipment. sory committee. 13.33 Supplies. 13.34 Copyrights. (b) The FEMA Advisory Committee 13.35 Subawards to debarred and suspended management officer or designee shall parties. keep such records as are necessary to 13.36 Procurement. fully disclose the nature and extent of 13.37 Subgrants.

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REPORTS, RECORDS RETENTION, AND Accrued income means the sum of: (1) ENFORCEMENT Earnings during a given period from 13.40 Monitoring and reporting program services performed by the grantee and performance. goods and other tangible property de- 13.41 Financial reporting. livered to purchasers, and (2) amounts 13.42 Retention and access requirements for becoming owed to the grantee for records. which no current services or perform- 13.43 Enforcement. ance is required by the grantee. 13.44 Termination for convenience. Acquisition cost of an item of pur- Subpart D—After-the-Grant Requirements chased equipment means the net invoice unit price of the property includ- 13.50 Closeout. ing the cost of modifications, attach- 13.51 Later disallowances and adjustments. ments, accessories, or auxiliary appa- 13.52 Collection of amounts due. ratus necessary to make the property Subpart E—Entitlement [Reserved] usable for the purpose for which it was acquired. Other charges such as the AUTHORITY: Reorganization Plan No. 3of cost of installation, transportation, 1978; 43 FR 41943, 3 CFR, 1978 Comp., p. 329; taxes, duty or protective in-transit in- E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. surance, shall be included or excluded 412. from the unit acquisition cost in ac- SOURCE: 53 FR 8078, 8087, Mar. 11, 1988, un- cordance with the grantee’s regular ac- less otherwise noted. counting practices.

EDITORIAL NOTE: For additional informa- Administrative requirements mean tion, see related documents published at 49 those matters common to grants in FR 24958, June 18, 1984; 52 FR 20178, May 29, general, such as financial management, 1987; and 53 FR 8028, Mar. 11, 1988. kinds and frequency of reports, and retention of records. These are distin- Subpart A—General guished from ‘‘programmatic’’ requirements, which concern matters that can § 13.1 Purpose and scope of this part. be treated only on a program-by-pro- This part establishes uniform admin- gram or grant-by-grant basis, such as istrative rules for Federal grants and kinds of activities that can be sup- cooperative agreements and subawards ported by grants under a particular to State, local and Indian tribal gov- program. ernments. Awarding agency means (1) with respect to a grant, the Federal agency, § 13.2 Scope of subpart. and (2) with respect to a subgrant, the This subpart contains general rules party that awarded the subgrant. pertaining to this part and procedures Cash contributions means the grant- for control of exceptions from this ee’s cash outlay, including the outlay part. of money contributed to the grantee or subgrantee by other public agencies § 13.3 Definitions. and institutions, and private organiza- As used in this part: tions and individuals. When authorized Accrued expenditures mean the by Federal legislation, Federal funds charges incurred by the grantee during received from other assistance agree- a given period requiring the provision ments may be considered as grantee or of funds for: subgrantee cash contributions. (1) Goods and other tangible property Contract means (except as used in the received; definitions for grant and subgrant in (2) Services performed by employees, this section and except where qualified contractors, subgrantees, subcontrac- by Federal) a procurement contract tors, and other payees; and under a grant or subgrant, and means a (3) Other amounts becoming owed procurement subcontract under a con- under programs for which no current tract. services or performance is required, Cost sharing or matching means the such as annuities, insurance claims, value of the third party in-kind con- and other benefit payments. tributions and the portion of the costs

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of a federally assisted project or pro- component of the entity is designated gram not borne by the Federal Govern- in the grant award document. ment. Local government means a county, Cost-type contract means a contract or municipality, city, town, township, subcontract under a grant in which the local public authority (including any contractor or subcontractor is paid on public and Indian housing agency the basis of the costs it incurs, with or under the United States Housing Act of without a fee. 1937) school district, special district, Equipment means tangible, non- intrastate district, council of govern- expendable, personal property having a ments (whether or not incorporated as useful life of more than one year and a nonprofit corporation under state an acquisition cost of $5,000 or more law), any other regional or interstate per unit. A grantee may use its own government entity, or any agency or definition of equipment provided that instrumentality of a local government. such definition would at least include Obligations means the amounts of or- all equipment defined above. ders placed, contracts and subgrants Expenditure report means: (1) For non- awarded, goods and services received, construction grants, the SF–269 ‘‘Fi- and similar transactions during a given nancial Status Report’’ (or other equiv- period that will require payment by alent report); (2) for construction the grantee during the same or a future grants, the SF–271 ‘‘Outlay Report and period. Request for Reimbursement’’ (or other OMB means the United States Office equivalent report). of Management and Budget. Federally recognized Indian tribal gov- Outlays (expenditures) mean charges ernment means the governing body or a made to the project or program. They governmental agency of any Indian may be reported on a cash or accrual tribe, band, nation, or other organized basis. For reports prepared on a cash group or community (including any basis, outlays are the sum of actual Native village as defined in section 3 of cash disbursement for direct charges the Alaska Native Claims Settlement for goods and services, the amount of Act, 85 Stat 688) certified by the Sec- indirect expense incurred, the value of retary of the Interior as eligible for the in-kind contributions applied, and the special programs and services provided amount of cash advances and payments by him through the Bureau of Indian made to contractors and subgrantees. Affairs. For reports prepared on an accrued ex- Government means a State or local penditure basis, outlays are the sum of government or a federally recognized actual cash disbursements, the amount Indian tribal government. of indirect expense incurred, the value Grant means an award of financial as- of inkind contributions applied, and sistance, including cooperative agree- the new increase (or decrease) in the ments, in the form of money, or prop- amounts owed by the grantee for goods erty in lieu of money, by the Federal and other property received, for serv- Government to an eligible grantee. The ices performed by employees, contrac- term does not include technical assist- tors, subgrantees, subcontractors, and ance which provides services instead of other payees, and other amounts be- money, or other assistance in the form coming owed under programs for which of revenue sharing, loans, loan guaran- no current services or performance are tees, interest subsidies, insurance, or required, such as annuities, insurance direct appropriations. Also, the term claims, and other benefit payments. does not include assistance, such as a Percentage of completion method refers fellowship or other lump sum award, to a system under which payments are which the grantee is not required to ac- made for construction work according count for. to the percentage of completion of the Grantee means the government to work, rather than to the grantee’s cost which a grant is awarded and which is incurred. accountable for the use of the funds Prior approval means documentation provided. The grantee is the entire evidencing consent prior to incurring legal entity even if only a particular specific cost.

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Real property means land, including Termination means permanent with- land improvements, structures and ap- drawal of the authority to obligate pre- purtenances thereto, excluding mov- viously-awarded grant funds before able machinery and equipment. that authority would otherwise expire. Share, when referring to the awarding It also means the voluntary relinquish- agency’s portion of real property, ment of that authority by the grantee equipment or supplies, means the same or subgrantee. ‘‘Termination’’ does not percentage as the awarding agency’s include: (1) Withdrawal of funds award- portion of the acquiring party’s total ed on the basis of the grantee’s under- costs under the grant to which the ac- estimate of the unobligated balance in quisition costs under the grant to a prior period; (2) Withdrawal of the which the acquisition cost of the prop- unobligated balance as of the expira- erty was charged. Only costs are to be tion of a grant; (3) Refusal to extend a counted—not the value of third-party grant or award additional funds, to in-kind contributions. make a competing or noncompeting State means any of the several States continuation, renewal, extension, or of the United States, the District of supplemental award; or (4) voiding of a Columbia, the Commonwealth of Puer- grant upon determination that the to Rico, any territory or possession of award was obtained fraudulently, or the United States, or any agency or in- was otherwise illegal or invalid from strumentality of a State exclusive of inception. local governments. The term does not Terms of a grant or subgrant mean all include any public and Indian housing requirements of the grant or subgrant, agency under United States Housing whether in statute, regulations, or the Act of 1937. award document. Subgrant means an award of financial Third party in-kind contributions mean assistance in the form of money, or property or services which benefit a property in lieu of money, made under federally assisted project or program a grant by a grantee to an eligible sub- and which are contributed by non-Fed- grantee. The term includes financial eral third parties without charge to the assistance when provided by contrac- grantee, or a cost-type contractor tual legal agreement, but does not in- under the grant agreement. clude procurement purchases, nor does it include any form of assistance which Unliquidated obligations for reports is excluded from the definition of grant prepared on a cash basis mean the in this part. amount of obligations incurred by the grantee that has not been paid. For re- Subgrantee means the government or ports prepared on an accrued expendi- other legal entity to which a subgrant is awarded and which is accountable to ture basis, they represent the amount the grantee for the use of the funds of obligations incurred by the grantee provided. for which an outlay has not been recorded. Supplies means all tangible personal property other than equipment as de- Unobligated balance means the por- fined in this part. tion of the funds authorized by the Federal agency that has not been obli- Suspension means depending on the gated by the grantee and is determined context, either (1) temporary withdrawal of the authority to obligate by deducting the cumulative obliga- grant funds pending corrective action tions from the cumulative funds au- by the grantee or subgrantee or a deci- thorized. sion to terminate the grant, or (2) an § 13.4 Applicability. action taken by a suspending official in accordance with agency regulations (a) General. Subparts A through D of implementing E.O. 12549 to imme- this part apply to all grants and sub- diately exclude a person from partici- grants to governments, except where pating in grant transactions for a pe- inconsistent with Federal statutes or riod, pending completion of an inves- with regulations authorized in accord- tigation and such legal or debarment ance with the exception provision of proceedings as may ensue. section 13.6, or:

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(1) Grants and subgrants to State and (v) Child Care Food Program (section local institutions of higher education 17 of the Act). or State and local hospitals. (5) Entitlement grants under the fol- (2) The block grants authorized by lowing programs of The Child Nutri- the Omnibus Budget Reconciliation tion Act of 1966: Act of 1981 (Community Services; Pre- (i) Special Milk (section 3 of the Act), ventive Health and Health Services; Al- and cohol, Drug Abuse, and Mental Health (ii) School Breakfast (section 4 of the Services; Maternal and Child Health Act). Services; Social Services; Low-Income (6) Entitlement grants for State Ad- Home Energy Assistance; States’ Pro- ministrative expenses under The Food gram of Community Development Stamp Act of 1977 (section 16 of the Block Grants for Small Cities; and Ele- Act). mentary and Secondary Education (7) A grant for an experimental, pilot, other than programs administered by or demonstration project that is also the Secretary of Education under title supported by a grant listed in para- V, subtitle D, Chapter 2, Section 583— graph (a)(3) of this section; the Secretary’s discretionary grant (8) Grant funds awarded under sub- program) and titles I–III of the Job section 412(e) of the Immigration and Training Partnership Act of 1982 and Nationality Act (8 U.S.C. 1522(e)) and under the Public Health Services Act subsection 501(a) of the Refugee Edu- (section 1921), Alcohol and Drug Abuse cation Assistance Act of 1980 (Pub. L. Treatment and Rehabilitation Block 96–422, 94 Stat. 1809), for cash assist- Grant and Part C of title V, Mental ance, medical assistance, and supple- Health Service for the Homeless Block mental security income benefits to ref- Grant). ugees and entrants and the administra- (3) Entitlement grants to carry out tive costs of providing the assistance the following programs of the Social and benefits; Security Act: (9) Grants to local education agencies (i) Aid to Needy Families with De- under 20 U.S.C. 236 through 241–1(a), pendent Children (Title IV–A of the and 242 through 244 (portions of the Im- Act, not including the Work Incentive pact Aid program), except for 20 U.S.C. Program (WIN) authorized by section 238(d)(2)(c) and 240(f) (Entitlement In- 402(a)19(G); HHS grants for WIN are crease for Handicapped Children); and subject to this part); (10) Payments under the Veterans Administration’s State Home Per Diem (ii) Child Support Enforcement and Program (38 U.S.C. 641(a)). Establishment of Paternity (Title IV–D (b) Entitlement programs. Entitlement of the Act); programs enumerated above in § 13.4(a) (iii) Foster Care and Adoption Assist- (3) through (8) are subject to subpart E. ance (Title IV–E of the Act); (iv) Aid to the Aged, Blind, and Dis- § 13.5 Effect on other issuances. abled (Titles I, X, XIV, and XVI–AABD All other grants administration proof the Act); and visions of codified program regula- (v) Medical Assistance (Medicaid) tions, program manuals, handbooks (Title XIX of the Act) not including the and other nonregulatory materials State Medicaid Fraud Control program which are inconsistent with this part authorized by section 1903(a)(6)(B). are superseded, except to the extent (4) Entitlement grants under the fol- they are required by statute, or au- lowing programs of The National thorized in accordance with the excep- School Lunch Act: tion provision in § 13.6. (i) School Lunch (section 4 of the Act), § 13.6 Additions and exceptions. (ii) Commodity Assistance (section 6 (a) For classes of grants and grantees of the Act), subject to this part, Federal agencies (iii) Special Meal Assistance (section may not impose additional administra- 11 of the Act), tive requirements except in codified (iv) Summer Food Service for Chil- regulations published in the FEDERAL dren (section 13 of the Act), and REGISTER.

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(b) Exceptions for classes of grants or the affected pages need be submitted. grantees may be authorized only by Previously submitted pages with infor- OMB. mation that is still current need not be (c) Exceptions on a case-by-case basis resubmitted. and for subgrantees may be authorized by the affected Federal agencies. § 13.11 State plans. (a) Scope. The statutes for some pro- Subpart B—Pre-Award grams require States to submit plans Requirements before receiving grants. Under regulations implementing Executive Order § 13.10 Forms for applying for grants. 12372, ‘‘Intergovernmental Review of (a) Scope. (1) This section prescribes Federal Programs,’’ States are allowed forms and instructions to be used by to simplify, consolidate and substitute governmental organizations (except plans. This section contains additional hospitals and institutions of higher provisions for plans that are subject to education operated by a government) regulations implementing the Execu- in applying for grants. This section is tive Order. not applicable, however, to formula (b) Requirements. A State need meet grant programs which do not require only Federal administrative or pro- applicants to apply for funds on a grammatic requirements for a plan project basis. that are in statutes or codified regula- (2) This section applies only to appli- tions. cations to Federal agencies for grants, (c) Assurances. In each plan the State and is not required to be applied by will include an assurance that the grantees in dealing with applicants for State shall comply with all applicable subgrants. However, grantees are en- Federal statutes and regulations in ef- couraged to avoid more detailed or bur- fect with respect to the periods for densome application requirements for which it receives grant funding. For subgrants. this assurance and other assurances re- (b) Authorized forms and instructions quired in the plan, the State may: for governmental organizations. (1) In ap- (1) Cite by number the statutory or plying for grants, applicants shall only regulatory provisions requiring the as- use standard application forms or those surances and affirm that it gives the prescribed by the granting agency with assurances required by those provi- the approval of OMB under the Paper- sions, work Reduction Act of 1980. (2) Repeat the assurance language in (2) Applicants are not required to the statutes or regulations, or submit more than the original and two (3) Develop its own language to the copies of preapplications or applica- extent permitted by law. tions. (d) Amendments. A State will amend a (3) Applicants must follow all appli- plan whenever necessary to reflect: (1) cable instructions that bear OMB New or revised Federal statutes or reg- clearance numbers. Federal agencies ulations or (2) a material change in any may specify and describe the programs, State law, organization, policy, or functions, or activities that will be State agency operation. The State will used to plan, budget, and evaluate the obtain approval for the amendment and work under a grant. Other supple- its effective date but need submit for mentary instructions may be issued approval only the amended portions of only with the approval of OMB to the the plan. extent required under the Paperwork Reduction Act of 1980. For any stand- § 13.12 Special grant or subgrant con- ard form, except the SF–424 facesheet, ditions for ‘‘high-risk’’ grantees. Federal agencies may shade out or in- (a) A grantee or subgrantee may be struct the applicant to disregard any considered ‘‘high risk’’ if an awarding line item that is not needed. agency determines that a grantee or (4) When a grantee applies for addi- subgrantee: tional funding (such as a continuation (1) Has a history of unsatisfactory or supplemental award) or amends a performance, or previously submitted application, only (2) Is not financially stable, or

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(3) Has a management system which (1) Permit preparation of reports re- does not meet the management stand- quired by this part and the statutes au- ards set forth in this part, or thorizing the grant, and (4) Has not conformed to terms and (2) Permit the tracing of funds to a conditions of previous awards, or level of expenditures adequate to es- (5) Is otherwise not responsible; and tablish that such funds have not been if the awarding agency determines that used in violation of the restrictions an award will be made, special condi- and prohibitions of applicable statutes. tions and/or restrictions shall cor- (b) The financial management sys- respond to the high risk condition and tems of other grantees and subgrantees shall be included in the award. must meet the following standards: (b) Special conditions or restrictions (1) Financial reporting. Accurate, cur- may include: rent, and complete disclosure of the fi- (1) Payment on a reimbursement nancial results of financially assisted basis; activities must be made in accordance (2) Withholding authority to proceed with the financial reporting require- to the next phase until receipt of evi- ments of the grant or subgrant. dence of acceptable performance within (2) Accounting records. Grantees and a given funding period; subgrantees must maintain records (3) Requiring additional, more de- which adequately identify the source tailed financial reports; and application of funds provided for fi- (4) Additional project monitoring; nancially-assisted activities. These (5) Requiring the grante or sub- records must contain information per- grantee to obtain technical or manage- taining to grant or subgrant awards ment assistance; or and authorizations, obligations, unobli- (6) Establishing additional prior ap- gated balances, assets, liabilities, out- provals. lays or expenditures, and income. (c) If an awarding agency decides to (3) Internal control. Effective control impose such conditions, the awarding and accountability must be maintained official will notify the grantee or sub- for all grant and subgrant cash, real grantee as early as possible, in writing, and personal property, and other as- of: sets. Grantees and subgrantees must (1) The nature of the special condi- adequately safeguard all such property tions/restrictions; and must assure that it is used solely (2) The reason(s) for imposing them; for authorized purposes. (3) The corrective actions which must (4) Budget control. Actual expendi- be taken before they will be removed tures or outlays must be compared and the time allowed for completing with budgeted amounts for each grant the corrective actions and or subgrant. Financial information (4) The method of requesting recon- must be related to performance or pro- sideration of the conditions/restric- ductivity data, including the develop- tions imposed. ment of unit cost information whenever appropriate or specifically re- Subpart C—Post-Award quired in the grant or subgrant agree- Requirements ment. If unit cost data are required, estimates based on available documenta- FINANCIAL ADMINISTRATION tion will be accepted whenever possible. § 13.20 Standards for financial man- (5) Allowable cost. Applicable OMB agement systems. cost principles, agency program regula- (a) A State must expand and account tions, and the terms of grant and for grant funds in accordance with subgrant agreements will be followed State laws and procedures for expend- in determining the reasonableness, al- ing and accounting for its own funds. lowability, and allocability of costs. Fiscal control and accounting proce- (6) Source documentation. Accounting dures of the State, as well as its sub- records must be supported by such grantees and cost-type contractors, source documentation as cancelled must be sufficient to— checks, paid bills, payrolls, time and

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attendance records, contract and bursement for any construction grant. subgrant award documents, etc. Except as otherwise specified in regula- (7) Cash management. Procedures for tion, Federal agencies shall not use the minimizing the time elapsing between percentage of completion method to the transfer of funds from the U.S. pay construction grants. The grantee Treasury and disbursement by grantees or subgrantee may use that method to and subgrantees must be followed pay its construction contractor, and if whenever advance payment procedures it does, the awarding agency’s pay- are used. Grantees must establish rea- ments to the grantee or subgrantee sonable procedures to ensure the re- will be based on the grantee’s or sub- ceipt of reports on subgrantees’ cash grantee’s actual rate of disbursement. balances and cash disbursements in (e) Working capital advances. If a sufficient time to enable them to pre- grantee cannot meet the criteria for pare complete and accurate cash trans- advance payments described in para- actions reports to the awarding agen- graph (c) of this section, and the Fed- cy. When advances are made by letter- eral agency has determined that reim- of-credit or electronic transfer of funds bursement is not feasible because the methods, the grantee must make grantee lacks sufficient working cap- drawdowns as close as possible to the ital, the awarding agency may provide time of making disbursements. Grant- cash or a working capital advance ees must monitor cash drawdowns by basis. Under this procedure the award- their subgrantees to assure that they ing agency shall advance cash to the conform substantially to the same grantee to cover its estimated dis- standards of timing and amount as bursement needs for an initial period apply to advances to the grantees. generally geared to the grantee’s dis- (c) An awarding agency may review bursing cycle. Thereafter, the awarding the adequacy of the financial manage- agency shall reimburse the grantee for ment system of any applicant for fi- its actual cash disbursements. The nancial assistance as part of a working capital advance method of preaward review or at any time subse- payment shall not be used by grantees quent to award. or subgrantees if the reason for using § 13.21 Payment. such method is the unwillingness or inability of the grantee to provide timely (a) Scope. This section prescribes the advances to the subgrantee to meet the basic standard and the methods under subgrantee’s actual cash disburse- which a Federal agency will make payments. ments to grantees, and grantees will (f) Effect of program income, refunds, make payments to subgrantees and and audit recoveries on payment. (1) contractors. Grantees and subgrantees shall dis- (b) Basic standard. Methods and procedures for payment shall minimize burse repayments to and interest the time elapsing between the transfer earned on a revolving fund before re- of funds and disbursement by the questing additional cash payments for grantee or subgrantee, in accordance the same activity. with Treasury regulations at 31 CFR (2) Except as provided in paragraph part 205. (f)(1) of this section, grantees and sub- (c) Advances. Grantees and subgrantees shall disburse program in- grantees shall be paid in advance, pro- come, rebates, refunds, contract settle- vided they maintain or demonstrate ments, audit recoveries and interest the willingness and ability to maintain earned on such funds before requesting procedures to minimize the time elaps- additional cash payments. ing between the transfer of the funds (g) Withholding payments. (1) Unless and their disbursement by the grantee otherwise required by Federal statute, or subgrantee. awarding agencies shall not withhold (d) Reimbursement. Reimbursement payments for proper charges incurred shall be the preferred method when the by grantees or subgrantees unless— requirements in paragraph (c) of this (i) The grantee or subgrantee has section are not met. Grantees and sub- failed to comply with grant award con- grantees may also be paid by reim- ditions or

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(ii) The grantee or subgrantee is in- able costs) to the grantee or sub- debted to the United States. grantee. (2) Cash withheld for failure to com- (b) Applicable cost principles. For each ply with grant award condition, but kind of organization, there is a set of without suspension of the grant, shall Federal principles for determining al- be released to the grantee upon subse- lowable costs. Allowable costs will be quent compliance. When a grant is sus- determined in accordance with the cost pended, payment adjustments will be principles applicable to the organiza- made in accordance with § 13.43(c). tion incurring the costs. The following (3) A Federal agency shall not make chart lists the kinds of organizations payment to grantees for amounts that and the applicable cost principles. are withheld by grantees or subgrantees from payment to contractors For the costs of a— Use the principles in— to assure satisfactory completion of work. Payments shall be made by the State, local or Indian tribal OMB Circular A–87. Federal agency when the grantees or government. Private nonprofit organization OBM Circular A–122. subgrantees actually disburse the with- other than an (1) institution held funds to the contractors or to es- of higher education, (2) crow accounts established to assure hospital, or (3) organization named in OMB Circular A– satisfactory completion of work. 122 as not subject to that (h) Cash depositories. (1) Consistent circular. with the national goal of expanding the Educational institutions...... OMB Circular A–21. opportunities for minority business en- For-profit organization other 48 CFR part 31. Contract terprises, grantees and subgrantees are than a hospital and an or- Cost Principles and Proce- ganization named in OBM dures, or uniform cost ac- encouraged to use minority banks (a Circular A–122 as not sub- counting standards that bank which is owned at least 50 percent ject to that circular. comply with cost principles by minority group members). A list of acceptable to the Federal minority owned banks can be obtained agency. from the Minority Business Develop- ment Agency, Department of Com- § 13.23 Period of availability of funds. merce, Washington, DC 20230. (a) General. Where a funding period is (2) A grantee or subgrantee shall specified, a grantee may charge to the maintain a separate bank account only award only costs resulting from obliga- when required by Federal-State agree- tions of the funding period unless car- ment. ryover of unobligated balances is per- (i) Interest earned on advances. Except mitted, in which case the carryover for interest earned on advances of balances may be charged for costs refunds exempt under the Intergovern- mental Cooperation Act (31 U.S.C. 6501 sulting from obligations of the subse- et seq.) and the Indian Self-Determina- quent funding period. tion Act (23 U.S.C. 450), grantees and (b) Liquidation of obligations. A grant- subgrantees shall promptly, but at ee must liquidate all obligations in- least quarterly, remit interest earned curred under the award not later than on advances to the Federal agency. The 90 days after the end of the funding pe- grantee or subgrantee may keep inter- riod (or as specified in a program regu- est amounts up to $100 per year for ad- lation) to coincide with the submission ministrative expenses. of the annual Financial Status Report (SF–269). The Federal agency may ex- § 13.22 Allowable costs. tend this deadline at the request of the (a) Limitation on use of funds. Grant grantee. funds may be used only for: (1) The allowable costs of the grant- § 13.24 Matching or cost sharing. ees, subgrantees and cost-type contrac- (a) Basic rule: Costs and contributions tors, including allowable costs in the acceptable. With the qualifications and form of payments to fixed-price con- exceptions listed in paragraph (b) of tractors; and this section, a matching or cost shar- (2) Reasonable fees or profit to costing requirement may be satisfied by ei- type contractors but not any fee or ther or both of the following: profit (or other increment above allow-

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(1) Allowable costs incurred by the pressly permit this kind of income to grantee, subgrantee or a cost-type con- be used to meet the requirement. tractor under the assistance agree- (6) Records. Costs and third party in- ment. This includes allowable costs kind contributions counting towards borne by non-Federal grants or by oth- satisfying a cost sharing or matching ers cash donations from non-Federal requirement must be verifiable from third parties. the records of grantees and subgrantee (2) The value of third party in-kind or cost-type contractors. These records contributions applicable to the period must show how the value placed on to which the cost sharing or matching third party in-kind contributions was requirements applies. derived. To the extent feasible, volun- (b) Qualifications and exceptions—(1) teer services will be supported by the Costs borne by other Federal grant agree- same methods that the organization ments. Except as provided by Federal uses to support the allocability of reg- statute, a cost sharing or matching re- ular personnel costs. quirement may not be met by costs borne by another Federal grant. This (7) Special standards for third party in- prohibition does not apply to income kind contributions. (i) Third party in- earned by a grantee or subgrantee from kind contributions count towards sat- a contract awarded under another Fed- isfying a cost sharing or matching re- eral grant. quirement only where, if the party re- (2) General revenue sharing. For the ceiving the contributions were to pay purpose of this section, general revenue for them, the payments would be allow- sharing funds distributed under 31 able costs. U.S.C. 6702 are not considered Federal (ii) Some third party in-kind con- grant funds. tributions are goods and services that, (3) Cost or contributions counted to- if the grantee, subgrantee, or con- wards other Federal costs-sharing require- tractor receiving the contribution had ments. Neither costs nor the values of to pay for them, the payments would third party in-kind contributions may have been an indirect costs. Costs shar- count towards satisfying a cost sharing ing or matching credit for such con- or matching requirement of a grant tributions shall be given only if the agreement if they have been or will be grantee, subgrantee, or contractor has counted towards satisfying a cost shar- established, along with its regular indi- ing or matching requirement of an- rect cost rate, a special rate for allo- other Federal grant agreement, a Fed- cating to individual projects or pro- eral procurement contract, or any grams the value of the contributions. other award of Federal funds. (iii) A third party in-kind contribu- (4) Costs financed by program income. tion to a fixed-price contract may Costs financed by program income, as defined in § 13.25, shall not count to- count towards satisfying a cost sharing wards satisfying a cost sharing or or matching requirement only if it re- matching requirement unless they are sults in: expressly permitted in the terms of the (A) An increase in the services or assistance agreement. (This use of gen- property provided under the contract eral program income is described in (without additional cost to the grantee § 13.25(g).) or subgrantee) or (5) Services or property financed by in- (B) A cost savings to the grantee or come earned by contractors. Contractors subgrantee. under a grant may earn income from (iv) The values placed on third party the activities carried out under the in-kind contributions for cost sharing contract in addition to the amounts or matching purposes will conform to earned from the party awarding the the rules in the succeeding sections of contract. No costs of services or prop- this part. If a third party in-kind con- erty supported by this income may tribution is a type not treated in those count toward satisfying a cost sharing sections, the value placed upon it shall or matching requirement unless other be fair and reasonable. provisions of the grant agreement ex-

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(c) Valuation of donated services—(1) the time of donation of the donated Volunteer services. Unpaid services pro- equipment or buildings and the fair vided to a grantee or subgrantee by in- rental rate of the donated land may be dividuals will be valued at rates con- counted as cost sharing or matching. sistent with those ordinarily paid for In the case of a subgrant, the terms of similar work in the grantee’s or sub- the grant agreement may require that grantee’s organization. If the grantee the approval be obtained from the Fed- or subgrantee does not have employees eral agency as well as the grantee. In performing similar work, the rates will all cases, the approval may be given be consistent with those ordinarily only if a purchase of the equipment or paid by other employers for similar rental of the land would be approved as work in the same labor market. In ei- an allowable direct cost. If any part of ther case, a reasonable amount for the donated property was acquired fringe benefits may be included in the with Federal funds, only the non-Fed- valuation. eral share of the property may be (2) Employees of other organizations. counted as cost-sharing or matching. When an employer other than a grant- (ii) If approval is not obtained under ee, subgrantee, or cost-type contractor paragraph (e)(2)(i) of this section, no furnishes free of charge the services of amount may be counted for donated an employee in the employee’s normal land, and only depreciation or use al- line of work, the services will be valued lowances may be counted for donated at the employee’s regular rate of pay equipment and buildings. The deprecia- exclusive of the employee’s fringe ben- tion or use allowances for this property efits and overhead costs. If the services are not treated as third party in-kind are in a different line of work, para- contributions. Instead, they are treat- graph (c)(1) of this section applies. ed as costs incurred by the grantee or (d) Valuation of third party donated subgrantee. They are computed and al- supplies and loaned equipment or space. located (usually as indirect costs) in (1) If a third party donates supplies, accordance with the cost principles the contribution will be valued at the specified in § 13.22, in the same way as market value of the supplies at the depreciation or use allowances for pur- time of donation. (2) If a third party donates the use of chased equipment and buildings. The equipment or space in a building but amount of depreciation or use allow- retains title, the contribution will be ances for donated equipment and build- valued at the fair rental rate of the ings is based on the property’s market equipment or space. value at the time it was donated. (e) Valuation of third party donated (f) Valuation of grantee or subgrantee equipment, buildings, and land. If a third donated real property for construction/ac- party donates equipment, buildings, or quisition. If a grantee or subgrantee do- land, and title passes to a grantee or nates real property for a construction subgrantee, the treatment of the do- or facilities acquisition project, the nated property will depend upon the current market value of that property purpose of the grant or subgrant, as may be counted as cost sharing or follows: matching. If any part of the donated (1) Awards for capital expenditures. If property was acquired with Federal the purpose of the grant or subgrant is funds, only the non-Federal share of to assist the grantee or subgrantee in the property may be counted as cost the acquisition of property, the market sharing or matching. value of that property at the time of (g) Appraisal of real property. In some donation may be counted as cost shar- cases under paragraphs (d), (e) and (f) ing or matching, of this section, it will be necessary to (2) Other awards. If assisting in the establish the market value of land or a acquisition of property is not the pur- building or the fair rental rate of land pose of the grant or subgrant, para- or of space in a building. In these cases, graphs (e)(2) (i) and (ii) of this section the Federal agency may require the apply: market value or fair rental value be set (i) If approval is obtained from the by an independent appraiser, and that awarding agency, the market value at the value or rate be certified by the

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grantee. This requirement will also be Federal as described below, unless the imposed by the grantee on subgrantees. Federal agency regulations or the grant agreement specify another alter- § 13.25 Program income. native (or a combination of the alter- (a) General. Grantees are encouraged natives). In specifying alternatives, the to earn income to defray program Federal agency may distinguish be- costs. Program income includes income tween income earned by the grantee from fees for services performed, from and income earned by subgrantees and the use or rental of real or personal between the sources, kinds, or amounts property acquired with grant funds, of income. When Federal agencies au- from the sale of commodities or items thorize the alternatives in paragraphs fabricated under a grant agreement, (g) (2) and (3) of this section, program and from payments of principal and in- income in excess of any limits stipu- terest on loans made with grant funds. lated shall also be deducted from out- Except as otherwise provided in regula- lays. tions of the Federal agency, program (1) Deduction. Ordinarily program in- income does not include interest on come shall be deducted from total al- grant funds, rebates, credits, discounts, lowable costs to determine the net al- refunds, etc. and interest earned on lowable costs. Program income shall be any of them. used for current costs unless the Fed- (b) Definition of program income. Pro- eral agency authorizes otherwise. Pro- gram income means gross income re- gram income which the grantee did not ceived by the grantee or subgrantee di- anticipate at the time of the award rectly generated by a grant supported shall be used to reduce the Federal activity, or earned only as a result of agency and grantee contributions rath- the grant agreement during the grant er than to increase the funds com- period. During the grant period is the mitted to the project. time between the effective date of the (2) Addition. When authorized, pro- award and the ending date of the award gram income may be added to the reflected in the final financial report. funds committed to the grant agree- (c) Cost of generating program income. ment by the Federal agency and the If authorized by Federal regulations or grantee. The program income shall be the grant agreement, costs incident to used for the purposes and under the the generation of program income may conditions of the grant agreement. be deducted from gross income to de- (3) Cost sharing or matching. When au- termine program income. thorized, program income may be used (d) Governmental revenues. Taxes, spe- to meet the cost sharing or matching cial assessments, levies, fines, and requirement of the grant agreement. other such revenues raised by a grantee The amount of the Federal grant award or subgrantee are not program income remains the same. unless the revenues are specifically (h) Income after the award period. identified in the grant agreement or There are no Federal requirements gov- Federal agency regulations as program erning the disposition of program in- income. come earned after the end of the award (e) Royalties. Income from royalties period (i.e., until the ending date of the and license fees for copyrighted mate- final financial report, see paragraph (a) rial, patents, and inventions developed of this section), unless the terms of the by a grantee or subgrantee is program agreement or the Federal agency regu- income only if the revenues are specifi- lations provide otherwise. cally identified in the grant agreement or Federal agency regulations as pro- § 13.26 Non-Federal audit. gram income. (See § 13.34.) (a) Basic rule. Grantees and sub- (f) Property. Proceeds from the sale of grantees are responsible for obtaining real property or equipment will be han- audits in accordance with the Single dled in accordance with the require- Audit Act Amendments of 1996 (31 ments of §§ 13.31 and 13.32. U.S.C. 7501–7507) and revised OMB Cir- (g) Use of program income. Program cular A–133, ‘‘Audits of States, Local income shall be deducted from outlays Governments, and Non-Profit Organi- which may be both Federal and non- zations.’’ The audits shall be made by

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an independent auditor in accordance CHANGES, PROPERTY, AND SUBAWARDS with generally accepted government auditing standards covering financial § 13.30 Changes. audits. (a) General. Grantees and subgrantees (b) Subgrantees. State or local govern- are permitted to rebudget within the ments, as those terms are defined for approved direct cost budget to meet purposes of the Single Audit Act unanticipated requirements and may Amendments of 1996, that provide Fed- make limited program changes to the eral awards to a subgrantee, which ex- approved project. However, unless pends $300,000 or more (or other waived by the awarding agency, certain amount as specified by OMB) in Fed- types of post-award changes in budgets eral awards in a fiscal year, shall: and projects shall require the prior (1) Determine whether State or local written approval of the awarding agen- subgrantees have met the audit re- cy. quirements of the Act and whether sub- (b) Relation to cost principles. The ap- grantees covered by OMB Circular A– plicable cost principles (see § 13.22) con- 110, ‘‘Uniform Administrative Require- tain requirements for prior approval of ments for Grants and Agreements with certain types of costs. Except where Institutions of Higher Education, Hos- waived, those requirements apply to all pitals, and Other Non-Profit Organiza- grants and subgrants even if para- tions,’’ have met the audit require- graphs (c) through (f) of this section do ments of the Act. Commercial contrac- not. tors (private for-profit and private and (c) Budget changes—(1) Nonconstruc- governmental organizations) providing tion projects. Except as stated in other goods and services to State and local regulations or an award document, governments are not required to have a grantees or subgrantees shall obtain single audit performed. State and local the prior approval of the awarding governments should use their own pro- agency whenever any of the following cedures to ensure that the contractor changes is anticipated under a non- has complied with laws and regulations construction award: affecting the expenditure of Federal (i) Any revision which would result funds; in the need for additional funding. (2) Determine whether the sub- (ii) Unless waived by the awarding grantee spent Federal assistance funds agency, cumulative transfers among di- provided in accordance with applicable rect cost categories, or, if applicable, laws and regulations. This may be ac- among separately budgeted programs, complished by reviewing an audit of projects, functions, or activities which the subgrantee made in accordance exceed or are expected to exceed ten with the Act, Circular A–110, or percent of the current total approved through other means (e.g., program rebudget, whenever the awarding agen- views) if the subgrantee has not had cy’s share exceeds $100,000. such an audit; (iii) Transfer of funds allotted for (3) Ensure that appropriate correc- training allowances (i.e., from direct tive action is taken within six months payments to trainees to other expense after receipt of the audit report in in- categories). stance of noncompliance with Federal (2) Construction projects. Grantees and laws and regulations; subgrantees shall obtain prior written (4) Consider whether subgrantee au- approval for any budget revision which dits necessitate adjustment of the would result in the need for additional grantee’s own records; and funds. (5) Require each subgrantee to permit (3) Combined construction and non- independent auditors to have access to construction projects. When a grant or the records and financial statements. subgrant provides funding for both con- (c) Auditor selection. In arranging for struction and nonconstruction activi- audit services, § 13.36 shall be followed. ties, the grantee or subgrantee must [53 FR 8079, 887, Mar. 11, 1988, as amended at obtain prior written approval from the 62 FR 45939, 45945, Aug. 29, 1997] awarding agency before making any

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fund or budget transfer from non- change to the grantee’s approved construction to construction or vice project which requires Federal prior versa. approval, the grantee will obtain the (d) Programmatic changes. Grantees or Federal agency’s approval before ap- subgrantees must obtain the prior approving the subgrantee’s request. proval of the awarding agency whenever any of the following actions is an- § 13.31 Real property. ticipated: (a) Title. Subject to the obligations (1) Any revision of the scope or objec- and conditions set forth in this section, tives of the project (regardless of title to real property acquired under a whether there is an associated budget grant or subgrant will vest upon acqui- revision requiring prior approval). sition in the grantee or subgrantee re- (2) Need to extend the period of avail- spectively. ability of funds. (b) Use. Except as otherwise provided (3) Changes in key persons in cases by Federal statutes, real property will where specified in an application or a be used for the originally authorized grant award. In research projects, a purposes as long as needed for that pur- change in the project director or prin- poses, and the grantee or subgrantee cipal investigator shall always require shall not dispose of or encumber its approval unless waived by the award- title or other interests. ing agency. (c) Disposition. When real property is (4) Under nonconstruction projects, no longer needed for the originally au- contracting out, subgranting (if authorized purpose, the grantee or sub- thorized by law) or otherwise obtaining grantee will request disposition in- the services of a third party to perform structions from the awarding agency. activities which are central to the pur- The instructions will provide for one of poses of the award. This approval re- the following alternatives: quirement is in addition to the ap- (1) Retention of title. Retain title after proval requirements of § 13.36 but does compensating the awarding agency. not apply to the procurement of equip- The amount paid to the awarding agen- ment, supplies, and general support cy will be computed by applying the services. awarding agency’s percentage of par- (e) Additional prior approval require- ticipation in the cost of the original ments. The awarding agency may not purchase to the fair market value of require prior approval for any budget the property. However, in those situa- revision which is not described in para- tions where a grantee or subgrantee is graph (c) of this section. disposing of real property acquired (f) Requesting prior approval. (1) A re- with grant funds and acquiring replace- quest for prior approval of any budget ment real property under the same pro- revision will be in the same budget for- gram, the net proceeds from the dis- mal the grantee used in its application position may be used as an offset to the and shall be accompanied by a nar- cost of the replacement property. rative justification for the proposed re- (2) Sale of property. Sell the property vision. and compensate the awarding agency. (2) A request for a prior approval The amount due to the awarding agen- under the applicable Federal cost prin- cy will be calculated by applying the ciples (see § 13.22) may be made by let- awarding agency’s percentage of par- ter. ticipation in the cost of the original (3) A request by a subgrantee for purchase to the proceeds of the sale prior approval will be addressed in after deduction of any actual and rea- writing to the grantee. The grantee sonable selling and fixing-up expenses. will promptly review such request and If the grant is still active, the net pro- shall approve or disapprove the request ceeds from sale may be offset against in writing. A grantee will not approve the original cost of the property. When any budget or project revision which is a grantee or subgrantee is directed to inconsistent with the purpose or terms sell property, sales procedures shall be and conditions of the Federal grant to followed that provide for competition the grantee. If the revision, requested to the extent practicable and result in by the subgrantee would result in a the highest possible return.

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(3) Transfer of title. Transfer title to may use the equipment to be replaced the awarding agency or to a third- as a trade-in or sell the property and party designated/approved by the use the proceeds to offset the cost of awarding agency. The grantee or sub- the replacement property, subject to grantee shall be paid an amount cal- the approval of the awarding agency. culated by applying the grantee or sub- (d) Management requirements. Proce- grantee’s percentage of participation dures for managing equipment (includ- in the purchase of the real property to ing replacement equipment), whether the current fair market value of the acquired in whole or in part with grant property. funds, until disposition takes place will, as a minimum, meet the following § 13.32 Equipment. requirements: (a) Title. Subject to the obligations (1) Property records must be main- and conditions set forth in this section, tained that include a description of the title to equipment acquired under a property, a serial number or other grant or subgrant will vest upon acqui- identification number, the source of sition in the grantee or subgrantee re- property, who holds title, the acquisi- spectively. tion date, and cost of the property, per- (b) States. A State will use, manage, centage of Federal participation in the and dispose of equipment acquired cost of the property, the location, use under a grant by the State in accord- and condition of the property, and any ance with State laws and procedures. ultimate disposition data including the Other grantees and subgrantees will date of disposal and sale price of the follow paragraphs (c) through (e) of property. this section. (2) A physical inventory of the prop- (c) Use. (1) Equipment shall be used erty must be taken and the results rec- by the grantee or subgrantee in the onciled with the property records at program or project for which it was ac- least once every two years. quired as long as needed, whether or (3) A control system must be devel- not the project or program continues oped to ensure adequate safeguards to to be supported by Federal funds. When prevent loss, damage, or theft of the no longer needed for the original pro- property. Any loss, damage, or theft gram or project, the equipment may be shall be investigated. used in other activities currently or (4) Adequate maintenance procedures previously supported by a Federal must be developed to keep the property agency. in good condition. (2) The grantee or subgrantee shall (5) If the grantee or subgrantee is au- also make equipment available for use thorized or required to sell the prop- on other projects or programs cur- erty, proper sales procedures must be rently or previously supported by the established to ensure the highest pos- Federal Government, providing such sible return. use will not interfere with the work on (e) Disposition. When original or re- the projects or program for which it placement equipment acquired under a was originally acquired. First pref- grant or subgrant is no longer needed erence for other use shall be given to for the original project or program or other programs or projects supported for other activities currently or pre- by the awarding agency. User fees viously supported by a Federal agency, should be considered if appropriate. disposition of the equipment will be (3) Notwithstanding the encourage- made as follows: ment in § 13.25(a) to earn program in- (1) Items of equipment with a current come, the grantee or subgrantee must per-unit fair market value of less than not use equipment acquired with grant $5,000 may be retained, sold or other- funds to provide services for a fee to wise disposed of with no further obliga- compete unfairly with private compa- tion to the awarding agency. nies that provide equivalent services, (2) Items of equipment with a current unless specifically permitted or con- per unit fair market value in excess of templated by Federal statute. $5,000 may be retained or sold and the (4) When acquiring replacement awarding agency shall have a right to equipment, the grantee or subgrantee an amount calculated by multiplying

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the current market value or proceeds not needed for any other federally from sale by the awarding agency’s sponsored programs or projects, the share of the equipment. grantee or subgrantee shall com- (3) In cases where a grantee or sub- pensate the awarding agency for its grantee fails to take appropriate dis- share. position actions, the awarding agency may direct the grantee or subgrantee § 13.34 Copyrights. to take excess and disposition actions. The Federal awarding agency re- (f) Federal equipment. In the event a serves a royalty-free, nonexclusive, and grantee or subgrantee is provided fed- irrevocable license to reproduce, pub- erally-owned equipment: lish or otherwise use, and to authorize (1) Title will remain vested in the others to use, for Federal Government Federal Government. purposes: (2) Grantees or subgrantees will man- (a) The copyright in any work devel- age the equipment in accordance with oped under a grant, subgrant, or con- Federal agency rules and procedures, tract under a grant or subgrant; and and submit an annual inventory list- (b) Any rights of copyright to which ing. a grantee, subgrantee or a contractor (3) When the equipment is no longer purchases ownership with grant sup- needed, the grantee or subgrantee will port. request disposition instructions from the Federal agency. § 13.35 Subawards to debarred and (g) Right to transfer title. The Federal suspended parties. awarding agency may reserve the right to transfer title to the Federal Govern- Grantees and subgrantees must not ment or a third part named by the make any award or permit any award awarding agency when such a third (subgrant or contract) at any tier to party is otherwise eligible under exist- any party which is debarred or sus- ing statutes. Such transfers shall be pended or is otherwise excluded from or subject to the following standards: ineligible for participation in Federal (1) The property shall be identified in assistance programs under Executive the grant or otherwise made known to Order 12549, ‘‘Debarment and Suspen- the grantee in writing. sion.’’ (2) The Federal awarding agency shall issue disposition instruction § 13.36 Procurement. within 120 calendar days after the end (a) States. When procuring property of the Federal support of the project and services under a grant, a State will for which it was acquired. If the Fed- follow the same policies and procedures eral awarding agency fails to issue dis- it uses for procurements from its non- position instructions within the 120 Federal funds. The State will ensure calendar-day period the grantee shall that every purchase order or other con- follow § 13.32(e). tract includes any clauses required by (3) When title to equipment is trans- Federal statutes and executive orders ferred, the grantee shall be paid an and their implementing regulations. amount calculated by applying the per- Other grantees and subgrantees will centage of participation in the pur- follow paragraphs (b) through (i) in chase to the current fair market value this section. of the property. (b) Procurement standards. (1) Grant- ees and subgrantees will use their own § 13.33 Supplies. procurement procedures which reflect (a) Title. Title to supplies acquired applicable State and local laws and under a grant or subgrant will vest, regulations, provided that the procure- upon acquisition, in the grantee or sub- ments conform to applicable Federal grantee respectively. law and the standards identified in this (b) Disposition. If there is a residual section. inventory of unused supplies exceeding (2) Grantees and subgrantees will $5,000 in total aggregate fair market maintain a contract administration value upon termination or completion system which ensures that contractors of the award, and if the supplies are perform in accordance with the terms,

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conditions, and specifications of their for procurement or use of common contracts or purchase orders. goods and services. (3) Grantees and subgrantees will (6) Grantees and subgrantees are en- maintain a written code of standards of couraged to use Federal excess and sur- conduct governing the performance of plus property in lieu of purchasing new their employees engaged in the award equipment and property whenever such and administration of contracts. No use is feasible and reduces project employee, officer or agent of the grant- costs. ee or subgrantee shall participate in se- (7) Grantees and subgrantees are en- lection, or in the award or administra- couraged to use value engineering tion of a contract supported by Federal clauses in contracts for construction funds if a conflict of interest, real or projects of sufficient size to offer rea- apparent, would be involved. Such a sonable opportunities for cost reduc- conflict would arise when: tions. Value engineering is a system- (i) The employee, officer or agent, atic and creative anaylsis of each con- (ii) Any member of his immediate tract item or task to ensure that its es- family, sential function is provided at the (iii) His or her partner, or overall lower cost. (iv) An organization which employs, (8) Grantees and subgrantees will or is about to employ, any of the make awards only to responsible con- above, has a financial or other interest tractors possessing the ability to per- in the firm selected for award. The form successfully under the terms and grantee’s or subgrantee’s officers, em- conditions of a proposed procurement. ployees or agents will neither solicit Consideration will be given to such nor accept gratuities, favors or any- matters as contractor integrity, com- thing of monetary value from contrac- pliance with public policy, record of tors, potential contractors, or parties past performance, and financial and to subagreements. Grantee and sub- technical resources. grantees may set minimum rules where the financial interest is not substantial (9) Grantees and subgrantees will or the gift is an unsolicited item of maintain records sufficient to detail nominal intrinsic value. To the extent the significant history of a procure- permitted by State or local law or reg- ment. These records will include, but ulations, such standards or conduct are not necessarily limited to the fol- will provide for penalties, sanctions, or lowing: rationale for the method of other disciplinary actions for viola- procurement, selection of contract tions of such standards by the grant- type, contractor selection or rejection, ee’s and subgrantee’s officers, employ- and the basis for the contract price. ees, or agents, or by contractors or (10) Grantees and subgrantees will their agents. The awarding agency may use time and material type contracts in regulation provide additional prohi- only— bitions relative to real, apparent, or (i) After a determination that no potential conflicts of interest. other contract is suitable, and (4) Grantee and subgrantee proce- (ii) If the contract includes a ceiling dures will provide for a review of pro- price that the contractor exceeds at its posed procurements to avoid purchase own risk. of unnecessary or duplicative items. (11) Grantees and subgrantees alone Consideration should be given to con- will be responsible, in accordance with solidating or breaking out procure- good administrative practice and sound ments to obtain a more economical business judgment, for the settlement purchase. Where appropriate, an anal- of all contractual and administrative ysis will be made of lease versus pur- issues arising out of procurements. chase alternatives, and any other ap- These issues include, but are not lim- propriate analysis to determine the ited to source evaluation, protests, dis- most economical approach. putes, and claims. These standards do (5) To foster greater economy and ef- not relieve the grantee or subgrantee ficiency, grantees and subgrantees are of any contractual responsibilities encouraged to enter into State and under its contracts. Federal agencies local intergovernmental agreements will not substitute their judgment for

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that of the grantee or subgrantee un- evaluation of bids or proposals, except less the matter is primarily a Federal in those cases where applicable Federal concern. Violations of law will be re- statutes expressly mandate or encour- ferred to the local, State, or Federal age geographic preference. Nothing in authority having proper jurisdiction. this section preempts State licensing (12) Grantees and subgrantees will laws. When contracting for architec- have protest procedures to handle and tural and engineering (A/E) services, resolve disputes relating to their pro- geographic location may be a selection curements and shall in all instances criteria provided its application leaves disclose information regarding the pro- an appropriate number of qualified test to the awarding agency. A firms, given the nature and size of the protestor must exhaust all administra- project, to compete for the contract. tive remedies with the grantee and sub- (3) Grantees will have written selec- grantee before pursuing a protest with tion procedures for procurement trans- the Federal agency. Reviews of pro- actions. These procedures will ensure tests by the Federal agency will be lim- that all solicitations: ited to: (i) Incorporate a clear and accurate (i) Violations of Federal law or regu- description of the technical require- lations and the standards of this sec- ments for the material, product, or tion (violations of State or local law service to be procured. Such descrip- will be under the jurisdiction of State tion shall not, in competitive procure- or local authorities) and ments, contain features which unduly (ii) Violations of the grantee’s or sub- restrict competition. The description grantee’s protest procedures for failure may include a statement of the quali- to review a complaint or protest. Pro- tative nature of the material, product tests received by the Federal agency or service to be procured, and when other than those specified above will be necessary, shall set forth those min- referred to the grantee or subgrantee. imum essential characteristics and (c) Competition. (1) All procurement standards to which it must conform if transactions will be conducted in a it is to satisfy its intended use. De- manner providing full and open com- tailed product specifications should be petition consistent with the standards avoided if at all possible. When it is of section 13.36. Some of the situations impractical or uneconomical to make a considered to be restrictive of competi- clear and accurate description of the tion include but are not limited to: technical requirements, a ‘‘brand name (i) Placing unreasonable require- or equal’’ description may be used as a ments on firms in order for them to qualify to do business, means to define the performance or (ii) Requiring unnecessary experience other salient requirements of a pro- and excessive bonding, curement. The specific features of the (iii) Noncompetitive pricing practices named brand which must be met by between firms or between affiliated offerors shall be clearly stated; and companies, (ii) Identify all requirements which (iv) Noncompetitive awards to con- the offerors must fulfill and all other sultants that are on retainer contracts, factors to be used in evaluating bids or (v) Organizational conflicts of inter- proposals. est, (4) Grantees and subgrantees will en- (vi) Specifying only a ‘‘brand name’’ sure that all prequalified lists of per- product instead of allowing ‘‘an equal’’ sons, firms, or products which are used product to be offered and describing in acquiring goods and services are cur- the performance of other relevant re- rent and include enough qualified quirements of the procurement, and sources to ensure maximum open and (vii) Any arbitrary action in the pro- free competition. Also, grantees and curement process. subgrantees will not preclude potential (2) Grantees and subgrantees will bidders from qualifying during the so- conduct procurements in a manner licitation period. that prohibits the use of statutorily or (d) Methods of procurement to be fol- administratively imposed in-State or lowed—(1) Procurement by small purchase local geographical preferences in the procedures. Small purchase procedures

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are those relatively simple and infor- prior experience indicates that such mal procurement methods for securing discounts are usually taken advantage services, supplies, or other property of; and that do not cost more than the sim- (E) Any or all bids may be rejected if plified acquisition threshold fixed at 41 there is a sound documented reason. U.S.C. 403(11) (currently set at $100,000). (3) Procurement by competitive pro- If small purchase procedures are used, posals. The technique of competitive price or rate quotations shall be ob- proposals is normally conducted with tained from an adequate number of more than one source submitting an qualified sources. offer, and either a fixed-price or cost- (2) Procurement by sealed bids (for- reimbursement type contract is award- mal advertising). Bids are publicly so- ed. It is generally used when conditions licited and a firm-fixed-price contract are not appropriate for the use of (lump sum or unit price) is awarded to sealed bids. If this method is used, the the responsible bidder whose bid, con- following requirements apply: forming with all the material terms (i) Requests for proposals will be pub- and conditions of the invitation for licized and identify all evaluation fac- bids, is the lowest in price. The sealed tors and their relative importance. Any bid method is the preferred method for response to publicized requests for pro- procuring construction, if the condi- posals shall be honored to the max- tions in § 13.36(d)(2)(i) apply. imum extent practical; (i) In order for sealed bidding to be (ii) Proposals will be solicited from feasible, the following conditions should be present: an adequate number of qualified (A) A complete, adequate, and real- sources; istic specification or purchase descrip- (iii) Grantees and subgrantees will tion is available; have a method for conducting tech- (B) Two or more responsible bidders nical evaluations of the proposals re- are willing and able to compete effec- ceived and for selecting awardees; tively and for the business; and (iv) Awards will be made to the re- (C) The procurement lends itself to a sponsible firm whose proposal is most firm fixed price contract and the selec- advantageous to the program, with tion of the successful bidder can be price and other factors considered; and made principally on the basis of price. (v) Grantees and subgrantees may (ii) If sealed bids are used, the fol- use competitive proposal procedures lowing requirements apply: for qualifications-based procurement of (A) The invitation for bids will be architectural/engineering (A/E) profes- publicly advertised and bids shall be sional services whereby competitors’ solicited from an adequate number of qualifications are evaluated and the known suppliers, providing them suffi- most qualified competitor is selected, cient time prior to the date set for subject to negotiation of fair and rea- opening the bids; sonable compensation. The method, (B) The invitation for bids, which where price is not used as a selection will include any specifications and per- factor, can only be used in procure- tinent attachments, shall define the ment of A/E professional services. It items or services in order for the bidder cannot be used to purchase other types to properly respond; of services though A/E firms are a po- (C) All bids will be publicly opened at tential source to perform the proposed the time and place prescribed in the in- effort. vitation for bids; (4) Procurement by noncompetitive (D) A firm fixed-price contract award proposals is procurement through solic- will be made in writing to the lowest itation of a proposal from only one responsive and responsible bidder. source, or after solicitation of a num- Where specified in bidding documents, ber of sources, competition is deter- factors such as discounts, transpor- mined inadequate. tation cost, and life cycle costs shall be (i) Procurement by noncompetitive considered in determining which bid is proposals may be used only when the lowest. Payment discounts will only be award of a contract is infeasible under used to determine the low bid when small purchase procedures, sealed bids

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or competitive proposals and one of the graphs (e)(2) (i) through (v) of this sec- following circumstances applies: tion. (A) The item is available only from a (f) Contract cost and price. (1) Grant- single source; ees and subgrantees must perform a (B) The public exigency or emergency cost or price analysis in connection for the requirement will not permit a with every procurement action includ- delay resulting from competitive solic- ing contract modifications. The meth- itation; od and degree of analysis is dependent (C) The awarding agency authorizes on the facts surrounding the particular noncompetitive proposals; or procurement situation, but as a start- (D) After solicitation of a number of ing point, grantees must make inde- sources, competition is determined in- pendent estimates before receiving bids adequate. or proposals. A cost analysis must be (ii) Cost analysis, i.e., verifying the performed when the offeror is required proposed cost data, the projections of to submit the elements of his esti- the data, and the evaluation of the spe- mated cost, e.g., under professional, cific elements of costs and profits, is consulting, and architectural engineer- required. ing services contracts. A cost analysis will be necessary when adequate price (iii) Grantees and subgrantees may competition is lacking, and for sole be required to submit the proposed pro- source procurements, including con- curement to the awarding agency for tract modifications or change orders, pre-award review in accordance with unless price resonableness can be es- paragraph (g) of this section. tablished on the basis of a catalog or (e) Contracting with small and minority market price of a commercial product firms, women’s business enterprise and sold in substantial quantities to the labor surplus area firms. (1) The grantee general public or based on prices set by and subgrantee will take all necessary law or regulation. A price analysis will affirmative steps to assure that minor- be used in all other instances to deter- ity firms, women’s business enter- mine the reasonableness of the pro- prises, and labor surplus area firms are posed contract price. used when possible. (2) Grantees and subgrantees will ne- (2) Affirmative steps shall include: gotiate profit as a separate element of (i) Placing qualified small and minor- the price for each contract in which ity businesses and women’s business there is no price competition and in all enterprises on solicitation lists; cases where cost analysis is performed. (ii) Assuring that small and minority To establish a fair and reasonable prof- businesses, and women’s business en- it, consideration will be given to the terprises are solicited whenever they complexity of the work to be per- are potential sources; formed, the risk borne by the con- (iii) Dividing total requirements, tractor, the contractor’s investment, when economically feasible, into small- the amount of subcontracting, the er tasks or quantities to permit max- quality of its record of past perform- imum participation by small and mi- ance, and industry profit rates in the nority business, and women’s business surrounding geographical area for enterprises; similar work. (iv) Establishing delivery schedules, (3) Costs or prices based on estimated where the requirement permits, which costs for contracts under grants will be encourage participation by small and allowable only to the extent that costs minority business, and women’s busi- incurred or cost estimates included in ness enterprises; negotiated prices are consistent with (v) Using the services and assistance Federal cost principles (see § 13.22). of the Small Business Administration, Grantees may reference their own cost and the Minority Business Develop- principles that comply with the appli- ment Agency of the Department of cable Federal cost principles. Commerce; and (4) The cost plus a percentage of cost (vi) Requiring the prime contractor, and percentage of construction cost if subcontracts are to be let, to take methods of contracting shall not be the affirmative steps listed in para- used.

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(g) Awarding agency review. (1) Grant- these standards in order for its system ees and subgrantees must make avail- to be certified. Generally, these re- able, upon request of the awarding views shall occur where there is a con- agency, technical specifications on pro- tinuous high-dollar funding, and third- posed procurements where the award- party contracts are awarded on a reg- ing agency believes such review is ular basis. needed to ensure that the item and/or (ii) A grantee or subgrantee may self- service specified is the one being pro- certify its procurement system. Such posed for purchase. This review gen- self-certification shall not limit the erally will take place prior to the time awarding agency’s right to survey the the specification is incorporated into a system. Under a self-certification pro- solicitation document. However, if the cedure, awarding agencies may wish to grantee or subgrantee desires to have rely on written assurances from the the review accomplished after a solici- grantee or subgrantee that it is com- tation has been developed, the award- plying with these standards. A grantee ing agency may still review the speci- or subgrantee will cite specific proce- fications, with such review usually lim- dures, regulations, standards, etc., as ited to the technical aspects of the pro- being in compliance with these require- posed purchase. ments and have its system available (2) Grantees and subgrantees must on for review. request make available for awarding (h) Bonding requirements. For con- agency pre-award review procurement struction or facility improvement con- documents, such as requests for pro- tracts or subcontracts exceeding the posals or invitations for bids, inde- simplified acquisition threshold, the pendent cost estimates, etc. when: awarding agency may accept the bond- (i) A grantee’s or subgrantee’s pro- ing policy and requirements of the curement procedures or operation fails grantee or subgrantee provided the to comply with the procurement stand- awarding agency has made a deter- ards in this section; or mination that the awarding agency’s (ii) The procurement is expected to interest is adequately protected. If exceed the simplified acquisition such a determination has not been threshold and is to be awarded without made, the minimum requirements shall competition or only one bid or offer is be as follows: received in response to a solicitation; or (1) A bid guarantee from each bidder (iii) The procurement, which is ex- equivalent to five percent of the bid price. pected to exceed the simplified acquisi- The ‘‘bid guarantee’’ shall consist of a tion threshold, specifies a ‘‘brand firm commitment such as a bid bond, name’’ product; or certified check, or other negotiable in- (iv) The proposed award is more than strument accompanying a bid as assur- the simplified acquisition threshold ance that the bidder will, upon accept- and is to be awarded to other than the ance of his bid, execute such contrac- apparent low bidder under a sealed bid tual documents as may be required procurement; or within the time specified. (v) A proposed contract modification (2) A performance bond on the part of changes the scope of a contract or in- the contractor for 100 percent of the con- creases the contract amount by more tract price. A ‘‘performance bond’’ is than the simplified acquisition thresh- one executed in connection with a con- old. tract to secure fulfillment of all the (3) A grantee or subgrantee will be contractor’s obligations under such exempt from the pre-award review in contract. paragraph (g)(2) of this section if the (3) A payment bond on the part of the awarding agency determines that its contractor for 100 percent of the contract procurement systems comply with the price. A ‘‘payment bond’’ is one exe- standards of this section. cuted in connection with a contract to (i) A grantee or subgrantee may re- assure payment as required by law of quest that its procurement system be all persons supplying labor and mate- reviewed by the awarding agency to de- rial in the execution of the work pro- termine whether its system meets vided for in the contract.

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(i) Contract provisions. A grantee’s (8) Notice of awarding agency re- and subgrantee’s contracts must con- quirements and regulations pertaining tain provisions in paragraph (i) of this to patent rights with respect to any section. Federal agencies are permitted discovery or invention which arises or to require changes, remedies, changed is developed in the course of or under conditions, access and records reten- such contract. tion, suspension of work, and other (9) Awarding agency requirements clauses approved by the Office of Fed- and regulations pertaining to copy- eral Procurement Policy. rights and rights in data. (1) Administrative, contractual, or (10) Access by the grantee, the sub- legal remedies in instances where con- grantee, the Federal grantor agency, tractors violate or breach contract the Comptroller General of the United terms, and provide for such sanctions States, or any of their duly authorized and penalties as may be appropriate. representatives to any books, docu- (Contracts more than the simplified ac- ments, papers, and records of the con- quisition threshold) tractor which are directly pertinent to (2) Termination for cause and for that specific contract for the purpose convenience by the grantee or sub- of making audit, examination, ex- grantee including the manner by which cerpts, and transcriptions. it will be effected and the basis for set- (11) Retention of all required records tlement. (All contracts in excess of for three years after grantees or sub- $10,000) grantees make final payments and all (3) Compliance with Executive Order other pending matters are closed. 11246 of September 24, 1965, entitled (12) Compliance with all applicable ‘‘Equal Employment Opportunity,’’ as standards, orders, or requirements amended by Executive Order 11375 of issued under section 306 of the Clean October 13, 1967, and as supplemented Air Act (42 U.S.C. 1857(h)), section 508 in Department of Labor regulations (41 of the Clean Water Act (33 U.S.C. 1368), CFR chapter 60). (All construction con- Executive Order 11738, and Environ- tracts awarded in excess of $10,000 by mental Protection Agency regulations grantees and their contractors or sub- (40 CFR part 15). (Contracts, subgrantees) contracts, and subgrants of amounts in (4) Compliance with the Copeland excess of $100,000) ‘‘Anti-Kickback’’ Act (18 U.S.C. 874) as (13) Mandatory standards and policies supplemented in Department of Labor relating to energy efficiency which are regulations (29 CFR Part 3). (All con- contained in the state energy conserva- tracts and subgrants for construction tion plan issued in compliance with the or repair) Energy Policy and Conservation Act (5) Compliance with the Davis-Bacon (Pub. L. 94–163, 89 Stat. 871). Act (40 U.S.C. 276a to 276a–7) as supplemented by Department of Labor regu- [53 FR 8078, 8087, Mar. 11, 1988, as amended at lations (29 CFR Part 5). (Construction 60 FR 19639, 19645, Apr. 19, 1995] contracts in excess of $2000 awarded by § 13.37 Subgrants. grantees and subgrantees when required by Federal grant program legis- (a) States. States shall follow state lation) law and procedures when awarding and (6) Compliance with Sections 103 and administering subgrants (whether on a 107 of the Contract Work Hours and cost reimbursement or fixed amount Safety Standards Act (40 U.S.C. 327–330) basis) of financial assistance to local as supplemented by Department of and Indian tribal governments. States Labor regulations (29 CFR Part 5). shall: (Construction contracts awarded by (1) Ensure that every subgrant in- grantees and subgrantees in excess of cludes any clauses required by Federal $2000, and in excess of $2500 for other statute and executive orders and their contracts which involve the employ- implementing regulations; ment of mechanics or laborers) (2) Ensure that subgrantees are (7) Notice of awarding agency re- aware of requirements imposed upon quirements and regulations pertaining them by Federal statute and regula- to reporting. tion;

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(3) Ensure that a provision for com- meet its programmatic needs, require pliance with § 13.42 is placed in every the grantee to submit a performance cost reimbursement subgrant; and report only upon expiration or termi- (4) Conform any advances of grant nation of grant support. Unless waived funds to subgrantees substantially to by the Federal agency this report will the same standards of timing and be due on the same date as the final Fi- amount that apply to cash advances by nancial Status Report. Federal agencies. (1) Grantees shall submit annual per- (b) All other grantees. All other grant- formance reports unless the awarding ees shall follow the provisions of this agency requires quarterly or semi-an- part which are applicable to awarding nual reports. However, performance re- agencies when awarding and admin- ports will not be required more fre- istering subgrants (whether on a cost quently than quarterly. Annual reports reimbursement or fixed amount basis) shall be due 90 days after the grant of financial assistance to local and In- year, quarterly or semi-annual reports dian tribal governments. Grantees shall be due 30 days after the reporting shall: period. The final performance report (1) Ensure that every subgrant in- will be due 90 days after the expiration cludes a provision for compliance with or termination of grant support. If a this part; justified request is submitted by a (2) Ensure that every subgrant in- grantee, the Federal agency may excludes any clauses required by Federal tend the due date for any performance statute and executive orders and their report. Additionally, requirements for implementing regulations; and unnecessary performance reports may (3) Ensure that subgrantees are be waived by the Federal agency. aware of requirements imposed upon (2) Performance reports will contain, them by Federal statutes and regula- for each grant, brief information on the tions. following: (c) Exceptions. By their own terms, (i) A comparison of actual accom- certain provisions of this part do not plishments to the objectives estab- apply to the award and administration lished for the period. Where the output of subgrants: of the project can be quantified, a com- (1) Section 13.10; putation of the cost per unit of output (2) Section 13.11; may be required if that information (3) The letter-of-credit procedures will be useful. specified in Treasury Regulations at 31 (ii) The reasons for slippage if estab- CFR part 205, cited in § 13.21; and lished objectives were not met. (4) Section 13.50. (iii) Additional pertinent information REPORTS, RECORDS RETENTION, AND including, when appropriate, analysis ENFORCEMENT and explanation of cost overruns or high unit costs. § 13.40 Monitoring and reporting pro- (3) Grantees will not be required to gram performance. submit more than the original and two (a) Monitoring by grantees. Grantees copies of performance reports. are responsible for managing the day- (4) Grantees will adhere to the stand- to-day operations of grant and ards in this section in prescribing per- subgrant supported activities. Grantees formance reporting requirements for must monitor grant and subgrant sup- subgrantees. ported activities to assure compliance (c) Construction performance reports. with applicable Federal requirements For the most part, on-site technical in- and that performance goals are being spections and certified percentage-of- achieved. Grantee monitoring must completion data are relied on heavily cover each program, function or activ- by Federal agencies to monitor ity. progress under construction grants and (b) Nonconstruction performance re- subgrants. The Federal agency will reports. The Federal agency may, if it de- quire additional formal performance cides that performance information reports only when considered nec- available from subsequent applications essary, and never more frequently than contains sufficient information to quarterly.

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(d) Significant developments. Events connection with forms specified in may occur between the scheduled per- paragraphs (b) through (e) of this sec- formance reporting dates which have tion. Federal agencies may issue sub- significant impact upon the grant or stantive supplementary instructions subgrant supported activity. In such only with the approval of OMB. Federal cases, the grantee must inform the agencies may shade out or instruct the Federal agency as soon as the following grantee to disregard any line item that types of conditions become known: the Federal agency finds unnecessary (1) Problems, delays, or adverse con- for its decisionmaking purposes. ditions which will materially impair (4) Grantees will not be required to the ability to meet the objective of the submit more than the original and two award. This disclosure must include a copies of forms required under this statement of the action taken, or con- part. templated, and any assistance needed (5) Federal agencies may provide to resolve the situation. computer outputs to grantees to expe- (2) Favorable developments which en- dite or contribute to the accuracy of able meeting time schedules and objec- reporting. Federal agencies may accept tives sooner or at less cost than antici- the required information from grantees pated or producing more beneficial rein machine usable format or computer sults than originally planned. printouts instead of prescribed forms. (e) Federal agencies may make site (6) Federal agencies may waive any visits as warranted by program needs. report required by this section if not (f) Waivers, extensions. (1) Federal needed. agencies may waive any performance (7) Federal agencies may extend the report required by this part if not need- due date of any financial report upon ed. receiving a justified request from a (2) The grantee may waive any per- grantee. formance report from a subgrantee (b) Financial Status Report—(1) Form. when not needed. The grantee may ex- Grantees will use Standard Form 269 or tend the due date for any performance 269A, Financial Status Report, to re- report from a subgrantee if the grantee port the status of funds for all non- will still be able to meet its perform- construction grants and for construc- ance reporting obligations to the Fed- tion grants when required in accord- eral agency. ance with paragraph (e)(2)(iii) of this section. § 13.41 Financial reporting. (2) Accounting basis. Each grantee will (a) General. (1) Except as provided in report program outlays and program paragraphs (a) (2) and (5) of this sec- income on a cash or accrual basis as tion, grantees will use only the forms prescribed by the awarding agency. If specified in paragraphs (a) through (e) the Federal agency requires accrual in- of this section, and such supple- formation and the grantee’s accounting mentary or other forms as may from records are not normally kept on the time to time be authorized by OMB, accural basis, the grantee shall not be for: required to convert its accounting sys- (i) Submitting financial reports to tem but shall develop such accrual in- Federal agencies, or formation through and analysis of the (ii) Requesting advances or reim- documentation on hand. bursements when letters of credit are (3) Frequency. The Federal agency not used. may prescribe the frequency of the re- (2) Grantees need not apply the forms port for each project or program. How- prescribed in this section in dealing ever, the report will not be required with their subgrantees. However, more frequently than quarterly. If the grantees shall not impose more burden- Federal agency does not specify the some requirements on subgrantees. frequency of the report, it will be sub- (3) Grantees shall follow all applica- mitted annually. A final report will be ble standard and supplemental Federal required upon expiration or termi- agency instructions approved by OMB nation of grant support. to the extend required under the Paper- (4) Due date. When reports are re- work Reduction Act of 1980 for use in quired on a quarterly or semiannual

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basis, they will be due 30 days after the electronic funds transfer or when reporting period. When required on an Treasury check advance payments are annual basis, they will be due 90 days made to the grantee automatically on after the grant year. Final reports will a predetermined basis.) be due 90 days after the expiration or (2) Reimbursements. Requests for reim- termination of grant support. bursement under nonconstruction (c) Federal Cash Transactions Report— grants will also be submitted on Stand- (1) Form. (i) For grants paid by letter or ard Form 270. (For reimbursement re- credit, Treasury check advances or quests under construction grants, see electronic transfer of funds, the grant- paragraph (e)(1) of this section.) ee will submit the Standard Form 272, (3) The frequency for submitting pay- Federal Cash Transactions Report, and ment requests is treated in paragraph when necessary, its continuation sheet, (b)(3) of this section. Standard Form 272a, unless the terms (e) Outlay report and request for reim- of the award exempt the grantee from bursement for construction programs. (1) this requirement. Grants that support construction ac- (ii) These reports will be used by the tivities paid by reimbursement meth- Federal agency to monitor cash ad- od. vanced to grantees and to obtain dis- (i) Requests for reimbursement under bursement or outlay information for construction grants will be submitted each grant from grantees. The format on Standard Form 271, Outlay Report of the report may be adapted as appro- and Request for Reimbursement for priate when reporting is to be accomplished with the assistance of auto- Construction Programs. Federal agen- matic data processing equipment pro- cies may, however, prescribe the Re- vided that the information to be sub- quest for Advance or Reimbursement mitted is not changed in substance. form, specified in paragraph (d) of this section, instead of this form. (2) Forecasts of Federal cash requirements. Forecasts of Federal cash re- (ii) The frequency for submitting requirements may be required in the imbursement requests is treated in ‘‘Remarks’’ section of the report. paragraph (b)(3) of this section. (3) Cash in hands of subgrantees. When (2) Grants that support construction considered necessary and feasible by activities paid by letter of credit, elec- the Federal agency, grantees may be tronic funds transfer or Treasury check required to report the amount of cash advance. advances in excess of three days’ needs (i) When a construction grant is paid in the hands of their subgrantees or by letter of credit, electronic funds contractors and to provide short nar- transfer or Treasury check advances, rative explanations of actions taken by the grantee will report its outlays to the grantee to reduce the excess bal- the Federal agency using Standard ances. Form 271, Outlay Report and Request (4) Frequency and due date. Grantees for Reimbursement for Construction must submit the report no later than 15 Programs. The Federal agency will pro- working days following the end of each vide any necessary special instruction. quarter. However, where an advance ei- However, frequency and due date shall ther by letter of credit or electronic be governed by paragraphs (b) (3) and transfer of funds is authorized at an (4) of this section. annualized rate of one million dollars (ii) When a construction grant is paid or more, the Federal agency may re- by Treasury check advances based on quire the report to be submitted within periodic requests from the grantee, the 15 working days following the end of advances will be requested on the form each month. specified in paragraph (d) of this sec- (d) Request for advance or reimburse- tion. ment—(1) Advance payments. Requests (iii) The Federal agency may sub- for Treasury check advance payments stitute the Financial Status Report will be submitted on Standard Form specified in paragraph (b) of this sec- 270, Request for Advance or Reimburse- tion for the Outlay Report and Request ment. (This form will not be used for for Reimbursement for Construction drawdowns under a letter of credit, Programs.

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(3) Accounting basis. The accounting or last expenditure report for that pe- basis for the Outlay Report and Re- riod. However, if grant support is con- quest for Reimbursement for Construc- tinued or renewed quarterly, the retention Programs shall be governed by tion period for each year’s records paragraph (b)(2) of this section. starts on the day the grantee submits its expenditure report for the last quar- § 13.42 Retention and access require- ter of the Federal fiscal year. In all ments for records. other cases, the retention period starts (a) Applicability. (1) This section ap- on the day the grantee submits its plies to all financial and programmatic final expenditure report. If an expendi- records, supporting documents, statis- ture report has been waived, the reten- tical records, and other records of tion period starts on the day the report grantees or subgrantees which are: would have been due. (i) Required to be maintained by the (2) Real property and equipment terms of this part, program regulations records. The retention period for real or the grant agreement, or property and equipment records starts (ii) Otherwise reasonably considered from the date of the disposition or reas pertinent to program regulations or placement or transfer at the direction the grant agreement. of the awarding agency. (2) This section does not apply to (3) Records for income transactions records maintained by contractors or after grant or subgrant support. In some subcontractors. For a requirement to cases grantees must report income place a provision concerning records in after the period of grant support. certain kinds of contracts, see Where there is such a requirement, the § 13.36(i)(10). retention period for the records per- (b) Length of retention period. (1) Ex- taining to the earning of the income cept as otherwise provided, records starts from the end of the grantee’s fis- must be retained for three years from cal year in which the income is earned. the starting date specified in paragraph (4) Indirect cost rate proposals, cost al- (c) of this section. (2) If any litigation, claim, negotia- locations plans, etc. This paragraph ap- tion, audit or other action involving plies to the following types of docu- the records has been started before the ments, and their supporting records: expiration of the 3-year period, the indirect cost rate computations or pro- records must be retained until comple- posals, cost allocation plans, and any tion of the action and resolution of all similar accounting computations of issues which arise from it, or until the the rate at which a particular group of end of the regular 3-year period, which- costs is chargeable (such as computer ever is later. usage chargeback rates or composite (3) To avoid duplicate recordkeeping, fringe benefit rates). awarding agencies may make special (i) If submitted for negotiation. If the arrangements with grantees and sub- proposal, plan, or other computation is grantees to retain any records which required to be submitted to the Federal are continuously needed for joint use. Government (or to the grantee) to form The awarding agency will request the basis for negotiation of the rate, transfer of records to its custody when then the 3-year retention period for its it determines that the records possess supporting records starts from the date long-term retention value. When the of such submission. records are transferred to or main- (ii) If not submitted for negotiation. If tained by the Federal agency, the 3- the proposal, plan, or other computa- year retention requirement is not ap- tion is not required to be submitted to plicable to the grantee or subgrantee. the Federal Government (or to the (c) Starting date of retention period—(1) grantee) for negotiation purposes, then General. When grant support is contin- the 3-year retention period for the pro- ued or renewed at annual or other in- posal plan, or computation and its sup- tervals, the retention period for the porting records starts from end of the records of each funding period starts on fiscal year (or other accounting period) the day the grantee or subgrantee sub- covered by the proposal, plan, or other mits to the awarding agency its single computation.

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(d) Substitution of microfilm. Copies peal, or other administrative pro- made by microfilming, photocopying, ceeding to which the grantee or sub- or similar methods may be substituted grantee is entitled under any statute for the original records. or regulation applicable to the action (e) Access to records—(1) Records of involved. grantees and subgrantees. The awarding (c) Effects of suspension and termi- agency and the Comptroller General of nation. Costs of grantee or subgrantee the United States, or any of their au- resulting from obligations incurred by thorized representatives, shall have the the grantee or subgrantee during a sus- right of access to any pertinent books, pension or after termination of an documents, papers, or other records of award are not allowable unless the grantees and subgrantees which are awarding agency expressly authorizes pertinent to the grant, in order to them in the notice of suspension or ter- make audits, examinations, excerpts, mination or subsequently. Other grant- and transcripts. ee or subgrantee costs during suspen- (2) Expiration of right of access. The sion or after termination which are rights of access in this section must necessary and not reasonably avoidable not be limited to the required reten- are allowable if: tion period but shall last as long as the (1) The costs result from obligations records are retained. which were properly incurred by the (f) Restrictions on public access. The grantee or subgrantee before the effec- Federal Freedom of Information Act (5 tive date of suspension or termination, U.S.C. 552) does not apply to records are not in anticipation of it, and, in the Unless required by Federal, State, or case of a termination, are local law, grantees and subgrantees are noncancellable, and, not required to permit public access to (2) The costs would be allowable if their records. the award were not suspended or ex- § 13.43 Enforcement. pired normally at the end of the funding period in which the termination (a) Remedies for noncompliance. If a takes effect. grantee or subgrantee materially fails (d) Relationship to Debarment and Sus- to comply with any term of an award, pension. The enforcement remedies whether stated in a Federal statute or identified in this section, including regulation, an assurance, in a State suspension and termination, do not plan or application, a notice of award, preclude grantee or subgrantee from or elsewhere, the awarding agency may being subject to ‘‘Debarment and Sus- take one or more of the following ac- pension’’ under E.O. 12549 (see § 13.35). tions, as appropriate in the circumstances: § 13.44 Termination for convenience. (1) Temporarily withhold cash payments pending correction of the defi- Except as provided in § 13.43 awards ciency by the grantee or subgrantee or may be terminated in whole or in part more severe enforcement action by the only as follows: awarding agency, (a) By the awarding agency with the (2) Disallow (that is, deny both use of consent of the grantee or subgrantee in funds and matching credit for) all or which case the two parties shall agree part of the cost of the activity or ac- upon the termination conditions, in- tion not in compliance, cluding the effective date and in the (3) Wholly or partly suspend or ter- case of partial termination, the portion minate the current award for the to be terminated, or grantee’s or subgrantee’s program, (b) By the grantee or subgrantee (4) Withhold further awards for the upon written notification to the award- program, or ing agency, setting forth the reasons (5) Take other remedies that may be for such termination, the effective legally available. date, and in the case of partial termi- (b) Hearings, appeals. In taking an en- nation, the portion to be terminated. forcement action, the awarding agency However, if, in the case of a partial ter- will provide the grantee or subgrantee mination, the awarding agency deter- an opportunity for such hearing, ap- mines that the remaining portion of

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the award will not accomplish the pur- § 13.51 Later disallowances and adjust- poses for which the award was made, ments. the awarding agency may terminate The closeout of a grant does not af- the award in its entirety under either fect: § 13.43 or paragraph (a) of this section. (a) The Federal agency’s right to disallow costs and recover funds on the Subpart D—After-The-Grant basis of a later audit or other review; Requirements (b) The grantee’s obligation to return any funds due as a result of later re- § 13.50 Closeout. funds, corrections, or other transactions; (a) General. The Federal agency will (c) Records retention as required in close out the award when it determines § 13.42; that all applicable administrative ac- (d) Property management require- tions and all required work of the ments in §§ 13.31 and 13.32; and grant has been completed. (e) Audit requirements in § 13.26. (b) Reports. Within 90 days after the expiration or termination of the grant, § 13.52 Collection of amounts due. the grantee must submit all financial, (a) Any funds paid to a grantee in ex- performance, and other reports re- cess of the amount to which the grant- quired as a condition of the grant. ee is finally determined to be entitled Upon request by the grantee, Federal under the terms of the award con- agencies may extend this timeframe. stitute a debt to the Federal Govern- These may include but are not limited ment. If not paid within a reasonable to: period after demand, the Federal agen- (1) Final performance or progress re- cy may reduce the debt by: port. (1) Making an adminstrative offset (2) Financial Status Report (SF 269) or against other requests for reimbursements, Outlay Report and Request for Reim- (2) Withholding advance payments bursement for Construction Programs otherwise due to the grantee, or (SF–271) (as applicable.) (3) Other action permitted by law. (3) Final request for payment (SF–270) (b) Except where otherwise provided (if applicable). by statutes or regulations, the Federal (4) Invention disclosure (if applicable). agency will charge interest on an over- (5) Federally-owned property report: due debt in accordance with the Fed- In accordance with § 13.32(f), a grantee eral Claims Collection Standards (4 must submit an inventory of all feder- CFR Chapter II). The date from which ally owned property (as distinct from interest is computed is not extended by property acquired with grant funds) for litigation or the filing of any form of which it is accountable and request dis- appeal. position instructions from the Federal agency of property no longer needed. Subpart E—Entitlement [Reserved] (c) Cost adjustment. The Federal agency will, within 90 days after receipt of PART 14—ADMINISTRATION OF reports in paragraph (b) of this section, GRANTS: AUDITS OF STATE AND make upward or downward adjust- LOCAL GOVERNMENTS ments to the allowable costs. (d) Cash adjustments. (1) The Federal Sec. agency will make prompt payment to 14.1 Scope of part. 14.2 Non-Federal audits. the grantee for allowable reimbursable APPENDIX A TO PART 14—OMB CIRCULAR A– costs. 128, ‘‘AUDITS OF STATE AND LOCAL GOV- (2) The grantee must immediately re- ERNMENTS’’ fund to the Federal agency any balance AUTHORITY: Reorganization Plan No. 3 of of unobligated (unencumbered) cash 1978; E.O. 12127, E.O. 12148, 31 U.S.C. 7505. advanced that is not authorized to be retained for use on other grants. SOURCE: 51 FR 24347, July 3, 1986, unless otherwise noted.

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§ 14.1 Scope of part. 1. Purpose. This Circular is issued pursuant to the Single Audit Act of 1984, Public Law (a) This part contains standards for 98–502. It establishes audit requirements for non-Federal audits of recipients of fi- State and local governments that receive nancial assistance from the Federal Federal aid, and defines Federal responsibil- Emergency Management Agency (here- ities for implementing and monitoring those in called recipients). This includes, requirements. without limitation, assistance under 2. Supersession. The Circular supersedes At- the Disaster Relief Act of 1974 as tachment P, ‘‘Audit Requirements,’’ of Cir- amended, and the Federal Civil Defense cular A–102, ‘‘Uniform requirements for grants to State and local governments.’’ Act of 1950, as amended. 3. Background. The Single Audit Act builds (b) FEMA may not impose on recipi- upon earlier efforts to improve audits of Fed- ents additional requirements con- eral aid programs. The Act requires State or cerning non-Federal audits. However, local governments that receive $100,000 or it may provide recipients with sugges- more a year in Federal funds to have an tions and assistance on this subject. audit made for that year. Section 7505 of the Act requires the Director of the Office of § 14.2 Non-Federal audits. Management and Budget to prescribe policies, procedures and guidelines to implement (a) Governmental recipients. Recipients the Act. It specifies that the Director shall that are governments shall comply designate ‘‘cognizant’’ Federal agencies, de- with OMB Circular A–128 including any termine criteria for making appropriate amendments published in the FEDERAL charges to Federal programs for the cost of REGISTER by OMB. The Circular is codi- audits, and provide procedures to assure that fied verbatim as Appendix A to this small firms or firms owned and controlled by part. disadvantaged individuals have the oppor- (b) Grant or contract audits. Recipi- tunity to participate in contracts for single audits. ents of $25,000 or more, but less than 4. Policy. The Single Audit Act requires the $100,000 in Federal financial assistance following: that choose not to have an organiza- a. State or local governments that receive tion wide single audit must conduct in- $100,000 or more a year in Federal financial dividual grant or contract audits on all assistance shall have an audit made in ac- FEMA awards over $25,000. cordance with this Circular. (c) Submission of audit reports. All cop- b. State or local governments that receive ies of audit reports that a recipient is between $25,000 and $100,000 a year shall have required under OMB Circular A–128 to an audit made in accordance with this Cir- submit to FEMA shall be addressed to cular, or in accordance with Federal laws the FEMA District Inspector General and regulations governing the programs they participate in. responsible for the FEMA Region in c. State or local governments that receive which the recipient is located. The less than $25,000 a year shall be exempt from FEMA Office of Inspector General will compliance with the Act and other Federal distribute copies as appropriate within audit requirements. These State and local the Agency. Recipients therefore are governments shall be governed by audit re- not required to send their audit reports quirements prescribed by State or local law to any FEMA officials other than the or regulation. responsible District Inspector General. d. Nothing in this paragraph exempts State or local governments from maintaining APPENDIX A TO PART 14—OMB CIR- records of Federal financial assistance or from providing access to such records to Fed- CULAR A–128, ‘‘AUDITS OF STATE AND eral agencies, as provided for in Federal law LOCAL GOVERNMENTS’’ or in Circular A–102, ‘‘Uniform requirements EXECUTIVE OFFICE OF THE PRESIDENT for grants to State or local governments.’’ 5. Definitions. For the purposes of this Cir- Office of Management and Budget cular the following definitions from the Sin- gle Audit Act apply: CIRCULAR NO. A–128 a. Cognizant agency means the Federal agency assigned by the Office of Manage- April 12, 1985 ment and Budget to carry out the respon- To the Heads of Executive Departments and sibilities described in paragraph 11 of this Establishments. Circular. Subject: Audits of State and Local Govern- b. Federal financial assistance means assist- ments. ance provided by a Federal agency in the

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form of grants, contracts, cooperative agree- multi-State, regional, or interstate entity ments, loans, loan guarantees, property, in- that has governmental functions and any In- terest subsidies, insurance, or direct appro- dian tribe. priations, but does not include direct Federal m. Subrecipient means any person or gov- cash assistance to individuals. It includes ernment department, agency, or establish- awards received directly from Federal agen- ment that receives Federal financial assist- cies, or indirectly through other units of ance to carry out a program through a State State and local governments. or local government, but does not include an c. Federal agency has the same meaning as individual that is a beneficiary of such a pro- the term agency in section 551(1) of title 5, gram. A subrecipient may also be a direct re- United States Code. cipient of Federal financial assistance. d. Generally accepted accounting principles 6. Scope of audit. The Single Audit Act pro- has the meaning specified in the generally vides that: accepted government auditing standards. a. The audit shall be made by an inde- e. Generally accepted government auditing pendent auditor in accordance with gen- standards means the Standards For Audit of erally accepted government auditing stand- Government Organizations, Programs, Activi- ards covering financial and compliance au- ties, and Functions, developed by the Comp- dits. troller General, dated Febuary 27, 1981. b. The audit shall cover the entire oper- f. Independent auditor means: ations of a State or local government or, at (1) A State or local government auditor the option of that government, it may cover who meets the independence standards speci- departments, agencies or establishments fied in generally accepted government audit- that received, expended, or otherwise admin- ing standards; or istered Federal financial assistance during (2) A public accountant who meets such the year. However, if a State or local govern- independence standards. ment receives $25,000 or more in General g. Internal controls means the plan of orga- Revenue Sharing Funds in a fiscal year, it nization and methods and procedures adopt- shall have an audit of its entire operations. ed by management to ensure that: A series of audits of individual departments, (1) Resource use is consistent with laws, agencies, and establishments for the same regulations, and policies; fiscal year may be considered a single audit. (2) Resources are safeguarded against c. Public hospitals and public colleges and waste, loss, and misuse; and universities may be excluded from State and (3) Reliable data are obtained, maintained, local audits and the requirements of this Cir- and fairly disclosed in reports. cular. However, if such entities are excluded, h. Indian tribe means any Indian tribe, audits of these entities shall be made in ac- band, nations, or other organized group or cordance with statutory requirements and community, including any Alaskan Native the provisions of Circular A–110, ‘‘Uniform village or regional or village corporations (as requirements for grants to universities, hos- defined in, or established under, the Alaskan pitals, and other nonprofit organizations.’’ Native Claims Settlement Act) that is recog- d. The auditor shall determine whether: nized by the United States as eligible for the (1) The financial statements of the govern- special programs and services provided by ment, department, agency or establishment the United States to Indians because of their present fairly its financial position and the status as Indians. results of its financial operations in accord- i. Local government means any unit of local ance with generally accepted accounting government within a State, including a principles; county, a borough, municipality, city, town, (2) The organization has internal account- township, parish, local public authority, spe- ing and other control systems to provide rea- cial district, school district, intrastate dis- sonable assurance that it is managing Fed- trict, council of governments, and any other eral financial assistance programs in compli- instrumentality of local government. ance with applicable laws and regulations; j. Major Federal Assistance Program, as de- and fined by Public Law 98–502, is described in (3) The organization has complied with the Attachment to this Circular. laws and regulations that may have material k. Public accountants means those individ- effect on its financial statements and on uals who meet the qualification standards each major Federal assistance program. included in generally accepted government 7. Frequency of audit. Audits shall be made auditing standards for personnel performing annually unless the State or local govern- government audits. ment has, by January 1, 1987, a constitu- l. State means any State of the United tional or statutory requirement for less fre- States, the District of Columbia, the Com- quent audits. For those governments, the monwealth of Puerto Rico, the Virgin Is- cognizant agency shall permit biennial au- lands, Guam, American Samoa, the Com- dits, covering both years, if the government monwealth of the Northern Mariana Islands, so requests. It shall also honor requests for and the Trust Territory of the Pacific Is- biennial audits by governments that have an lands, any instrumentality thereof, and any administrative policy calling for audits less

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frequent than annual, but only for fiscal —The records show that those who received years beginning before January 1, 1987. services or benefits were eligible to receive 8. Internal control and compliance reviews. them. The Single Audit Act requires that the inde- (b) In addition to transaction testing, the pendent auditor determine and report on auditor shall determine whether: whether the organization has internal control systems to provide reasonable assurance —Matching requirements, levels of effort and that it is managing Federal assistance pro- earmarking limitations were met, grams in compliance with applicable laws —Federal financial reports and claims for advances and reimbursements contain in- and regulations. formation that is supported by the books a. Internal control review. In order to pro- and records from which the basic financial vide this assurance the auditor must make a statements have been prepared, and study and evaluation of internal control sys- —Amounts claimed or used for matching tems used in administering Federal assist- were determined in accordance with OMB ance programs. The study and evaluation Circular A–87, ‘‘Cost principles for State must be made whether or not the auditor in- and local governments,’’ and Attachment tends to place reliance on such systems. As F of Circular A–102, ‘‘Uniform require- part of this review, the auditor shall: ments for grants to State and local govern- (1) Test whether these internal control sys- ments.’’ tems are functioning in accordance with pre- (c) The principal compliance requirements scribed procedures. of the largest Federal aid programs may be (2) Examine the recipient’s system for ascertained by referring to the Compliance monitoring subrecipients and obtaining and Supplement for Single Audits of State and Local acting on subrecipient audit reports. Governments, issued by OMB and available b. Compliance review. The law also requires from the Government Printing Office. For the auditor to determine whether the organi- those programs not covered in the Compli- zation has complied with laws and regula- ance Supplement, the auditor may ascertain tions that may have a material effect on compliance requirements by researching the each major Federal assistance program. statutes, regulations, and agreements gov- (1) In order to determine which major pro- erning individual programs. grams are to be tested for compliance, State (3) Transactions related to other Federal and local governments shall identify in their assistance programs that are selected in con- accounts all Federal funds received and ex- nection with examinations of financial state- pended and the programs under which they ments and evaluations of internal controls were received. This shall include funds re- shall be tested for compliance with Federal ceived directly from Federal agencies and laws and regulations that apply to such through other State and local governments. transactions. (2) The review must include the selection 9. Subrecipients. State or local governments and testing of a representative number of that receive Federal financial assistance and charges from each major Federal assistance provide $25,000 or more of it in a fiscal year program. The selection and testing of trans- to a subrecipient shall: actions shall be based on the auditor’s pro- a. Determine whether State or local sub- fessional judgment considering such factors recipients have met the audit requirements as the amount of expeditures for the proof this Circular and whether subrecipients gram and the individual awards; the newness covered by Circular A–110, ‘‘Uniform require- of the program or changes in its conditions; ments for grants to universities, hospitals, prior experience with the program, particu- and other nonprofit organizations,’’ have larly as revealed in audits and other evalua- met that requirement; tions (e.g., inspections, program reviews); b. Determine whether the subrecipient the extent to which the program is carried spent Federal assistance funds provided in out through subrecipients; the extent to accordance with applicable laws and regula- which the program contracts for goods or tions. This may be accomplished by review- services; the level to which the program is ing an audit of the subrecipient made in ac- already subject to program reviews or other cordance with this Circular, Circular A–110, forms of independent oversight; the ade- or through other means (e.g., program re- quacy of the controls for ensuring compli- views) if the subrecipient has not yet had ance; the expectation of adherence or lack of such an audit; adherence to the applicable laws and regula- c. Ensure that appropriate corrective actions; and the potential impact of adverse tion is taken within six months after receipt findings. of the audit report in instances of non- (a) In making the test of transactions, the compliance with Federal laws and regula- auditor shall determine whether: tions; d. Consider whether subrecipient audits ne- —The amounts reported as expenditures cessitate adjustment of the recipient’s own were for allowable services, and records; and

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e. Require each subrecipient to permit organizations, and provide the results, when independent auditors to have access to the appropriate, to other interested organiza- records and financial statements as nec- tions. essary to comply with this Circular. (4) Promptly inform other affected Federal 10. Relation to other audit requirements. The agencies and appropriate Federal law en- Single Audit Act provides that an audit forcement officials of any reported illegal made in accordance with this Circular shall acts or irregularities. They should also in- be in lieu of any financial or financial com- form State or local law enforcement and pliance audit required under individual Fed- prosecuting authorities, if not advised by the eral assistance programs. To the extent that recipient, of any violation of law within a single audit provides Federal agencies with their jurisdiction. information and assurances they need to (5) Advise the recipient of audits that have carry out their overall responsibilities, they been found not to have met the requirements shall rely upon and use such information. set forth in this Circular. In such instances, However, a Federal agency shall make any the recipient will be expected to work with additional audits which are necessary to the auditor to take corrective action. If cor- carry out its responsibilities under Federal rective action is not taken, the cognizant law and regulation. Any additional Federal agency shall notify the recipient and Federal audit effort shall be planned and carried out awarding agencies of the facts and make rec- in such a way as to avoid duplication. ommendations for followup action. Major in- a. The provisions of this Circular do not adequacies or repetitive substandard per- limit the authority of Federal agencies to formance of independent auditors shall be re- make, or contract for audits and evaluations ferred to appropriate professional bodies for of Federal financial assistance programs, nor disciplinary action. do they limit the authority of any Federal (6) Coordinate, to the extent practicable, agency Inspector General or other Federal audits made by or for Federal agencies that audit official. are in addition to the audits made pursuant b. The provisions of this Circular do not to this Circular; so that the additional au- authorize any State or local government or dits build upon such audits. subrecipient thereof to constrain Federal (7) Oversee the resolution of audit findings agencies, in any manner, from carrying out that affect the programs of more than one additional audits. agency. c. A Federal agency that makes or con- 12. Illegal acts or irregularities. If the auditor tracts for audits in addition to the audits becomes aware of illegal acts or other irreg- made by recipients pursuant to this Circular ularities, prompt notice shall be given to re- shall, consistent with other applicable laws cipient management officials above the level and regulations, arrange for funding the cost of involvement. (See also paragraph 13(a)(3) of such additional audits. Such additional of this appendix for the auditor’s reporting audits include economy and efficiency au- responsibilities.) The recipient, in turn, shall dits, program results audits, and program promptly notify the cognizant agency of the evaluations. illegal acts or irregularities and of proposed 11. Cognizant agency responsibilities. The and actual actions, if any. Illegal acts and Single Audit Act provides for cognizant Fed- irregularities include such matters as con- eral agencies to oversee the implementation flicts of interest, falsification of records or of this Circular. reports, and misappropriations of funds or a. The Office of Management and Budget other assets. will assign cognizant agencies for States and 13. Audit Reports. Audit reports must be their subdivisions and larger local govern- prepared at the completion of the audit. Re- ments and their subdivisions. Other Federal ports serve many needs of State and local agencies may participate with an assigned governments as well as meeting the require- cognizant agency, in order to fulfill the cog- ments of the Single Audit Act. nizance responsibilities. Smaller govern- a. The audit report shall state that the ments not assigned a cognizant agency will audit was made in accordance with the probe under the general oversight of the Federal visions of this Circular. The report shall be agency that provides them the most funds made up of at least: whether directly or indirectly. (1) The auditor’s report on financial state- b. A cognizant agency shall have the fol- ments and on a schedule of Federal assist- lowing responsibilities: ance; the financial statements; and a sched- (1) Ensure that audits are made and re- ule of Federal assistance, showing the total ports are received in a timely manner and in expenditures for each Federal assistance pro- accordance with the requirements of this gram as identified in the Catalog of Federal Circular. Domestic Assistance. Federal programs or (2) Provide technical advice and liaison to grants that have not been assigned a catalog State and local governments and inde- number shall be identified under the caption pendent auditors. ‘‘other Federal assistance.’’ (3) Obtain or make quality control reviews (2) The auditor’s report on the study and of selected audits made by non-Federal audit evaluation of internal control systems must

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identify the organization’s significant inter- inghouse will keep completed audits on file nal accounting controls, and those controls and follow up with State and local govern- designed to provide reasonable assurance ments that have not submitted required that Federal programs are being managed in audit reports. compliance with laws and regulations. It h. Recipients shall keep audit reports on must also identify the controls that were file for three years from their issuance. evaluated, the controls that were not evalu- 14. Audit Resolution. As provided in para- ated, and the material weaknesses identified graph 11, the cognizant agency shall be reas a result of the evaluation. sponsible for monitoring the resolution of (3) The auditor’s report on compliance con- audit findings that affect the programs of taining: more than one Federal agency. Resolution of —A statement of positive assurance with re- findings that relate to the programs of a sin- spect to those items tested for compliance, gle Federal agency will be the responsibility including compliance with law and regula- of the recipient and that agency. Alternate tions pertaining to financial reports and arrangements may be made on a case-by- claims for advances and reimbursements; case basis by agreement among the agencies —Negative assurance on those items not concerned. tested; Resolution shall be made within six —A summary of all instances of noncompli- months after receipt of the report by the ance; and Federal departments and agencies. Correc- —An identification of total amounts ques- tive action should proceed as rapidly as pos- tioned, if any, for each Federal assistance sible. award, as a result of noncompliance. 15. Audit workpapers and reports. Workpapers and reports shall be retained for b. The three parts of the audit report may a minimum of three years from the date of be bound into a single report, or presented at the audit report, unless the auditor is noti- the same time as separate documents. fied in writing by the cognizant agency to c. All fraud abuse, or illegal acts or indica- extend the retention period. Audit tions of such acts, including all questioned workpapers shall be made available upon re- costs found as the result of these acts that quest to the cognizant agency or its designee auditors become aware of, should normally or the General Accounting Office, at the be covered in a separate written report sub- completion of the audit. mitted in accordance with paragraph 13f of 16. Audit Costs. The cost of audits made in this appendix. accordance with the provisions of this Cir- d. In addition to the audit report, the re- cular are allowable charges to Federal as- cipient shall provide comments on the find- sistance programs. ings and recommendations in the report, in- a. The charges may be considered a direct cluding a plan for corrective action taken or cost or an allocated indirect cost, deter- planned and comments on the status of cor- mined in accordance with the provision of rective action taken on prior findings. If cor- Circular A–87, ‘‘Cost principles for State and rective action is not necessary, a statement local governments.’’ describing the reason it is not should accom- b. Generally, the percentage of costs pany the audit report. charged to Federal assistance programs for a e. The reports shall be made available by single audit shall not exceed the percentage the State or local government for public in- that Federal funds expended represent of spection within 30 days after the completion total funds expended by the recipient during of the audit. the fiscal year. The percentage may be ex- f. In accordance with generally accepted ceeded, however, if appropriate documenta- government audit standards, reports shall be tion demonstrates higher actual cost. submitted by the auditor to the organization 17. Sanctions. The Single Audit Act pro- audited and to those requiring or arranging vides that no cost may be charged to Federal for the audit. In addition, the recipient shall assistance programs for audits required by submit copies of the reports to each Federal the Act that are not made in accordance department or agency that provided Federal with this Circular. In cases of continued in- assistance funds to the recipient. Subrecipi- ability or unwillingness to have a proper ents shall submit copies to recipients that audit, Federal agencies must consider other provided them Federal assistance funds. The appropriate sanctions including: reports shall be sent within 30 days after the completion of the audit, but no later than —Withholding a percentage of assistance one year after the end of the audit period un- payments until the audit is completed sat- less a longer period is agreed to with the cog- isfactorily, nizant agency. —Withholding or disallowing overhead costs, g. Recipients of more than $100,000 in Fed- and eral funds shall submit one copy of the audit —Suspending the Federal assistance agree- report within 30 days after issuance to a cen- ment until the audit is made. tral clearinghouse to be designated by the 18. Auditor Selection. In arranging for audit Office of Management and Budget. The clear- services State and local governments shall

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follow the procurement standards prescribed opinion of the agency, is failing to comply by Attachment O of Circular A–102, ‘‘Uni- with the Circular. form requirements for grants to State and 21. Regulations. Each Federal agency shall local governments.’’ The standards provide include the provisions of this Circular in its that while recipients are encouraged to enter regulations implementing the Single Audit into intergovernmental agreements for audit Act. and other services, analysis should be made 22. Effective date. This Circular is effective to determine whether it would be more eco- upon publication and shall apply to fiscal nomical to purchase the services from pri- years of State and local governments that vate firms. In instances where use of such begin after December 31, 1984. Earlier imple- intergovernmental agreements are required mentation is encouraged. However, until it is by State statutes (e.g., audit services) these implemented, the audit provisions of Attach- statutes will take precedence. ment P to Circular A–102 shall continue to be 19. Small and Minority Audit Firms. Small observed. audit firms and audit firms owned and con- 23. Inquiries. All questions or inquiries trolled by socially and economically dis- should be addressed to Financial Manage- advantaged individuals shall have the max- ment Division, Office of Management and imum practicable opportunity to participate Budget, telephone number 202/395–3993. in contracts awarded to fulfill the require- 24. Sunset review date. This Circular shall ments of this Circular. Recipients of Federal have an independent policy review to ascer- assistance shall take the following steps to tain its effectiveness three years from the further this goal: date of issuance. a. Assure that small audit firms and audit DAVID A. STOCKMAN, firms owned and controlled by socially and Director. economically disadvantaged individuals are used to the fullest extent practicable. ATTACHMENT—CIRCULAR A–128 b. Make information on forthcoming opportunities available and arrange time- Definition of Major Program as Provided in frames for the audit so as to encourage and Public Law 98–502 facilitate participation by small audit firms ‘‘Major Federal Assistance Program,’’ for and audit firms owned and controlled by so- State and local governments having Federal cially and economically disadvantaged indi- assistance expenditures between $100,000 and viduals. $100,000,000, means any program for which c. Consider in the contract process whether Federal expenditures during the applicable firms competing for larger audits intend to year exceed the larger of $300,000, or 3 per- subcontract with small audit firms and audit cent of such total expenditures. firms owned and controlled by socially and Where total expenditures of Federal assist- economically disadvantaged individuals. ance exceed $100,000,000, the following cri- d. Encourage contracting with small audit teria apply: firms or audit firms owned and controlled by socially and economically disadvantaged in- Total expenditures of Federal financial as- Major Federal dividuals which have traditionally audited sistance for all programs assistance program means government programs and, in such cases any program where this is not possible, assure that these More than But less than that exceeds firms are given consideration for audit subcontracting opportunities. $100 million ...... $1 billion ...... $3 million. e. Encourage contracting with consortiums $1 billion ...... $2 billion ...... $4 million. $2 billion ...... $3 billion ...... $7 million. of small audit firms as described in para- $3 billion ...... $4 billion ...... $10 million. graph (a) of section 19 of this appendix when $4 billion ...... $5 billion ...... $13 million. a contract is too large for an individual $5 billion ...... $6 billion ...... $16 million. small audit firm or audit firm owned and $6 billion ...... $7 billion ...... $19 million. controlled by socially and economically dis- Over $7 billion ...... $20 million. advantaged individuals. f. Use the services and assistance, as appropriate, of such organizations as the Small PART 15—CONDUCT AT THE MT. Business Administration in the solicitation WEATHER EMERGENCY ASSIST- and utilization of small audit firms or audit ANCE CENTER AND AT THE NA- firms owned and controlled by socially and economically disadvantaged individuals. TIONAL EMERGENCY TRAINING 20. Reporting. Each Federal agency will re- CENTER port to the Director of OMB on or before March 1, 1987, and annually thereafter on the Sec. effectiveness of State and local governments 15.1 Applicability. in carrying out the provisions of this Cir- 15.2 Definitions. cular. The report must identify each State or 15.3 Access to Mt. Weather. local government or Indian tribe that, in the 15.4 Inspection.

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15.5 Preservation of property. Senior Resident Manager means the 15.6 Compliance with signs and directions. Senior Resident Manager, Mt. Weather 15.7 Disturbances. Emergency Assistance Center. 15.8 Gambling. We means the Federal Emergency 15.9 Alcoholic beverages and narcotics. 15.10 Soliciting, vending, and debt collec- Management Agency or FEMA. tion. 15.11 Distribution of handbills. § 15.3 Access to Mt. Weather. 15.12 Photographs and other depictions. Mt. Weather contains classified ma- 15.13 Dogs and other animals. terial and areas that we must protect 15.14 Vehicular and pedestrian traffic. in the interest of national security. 15.15 Weapons and explosives. The facility is a restricted area. We 15.16 Penalties. 15.17 Other laws. deny access to Mt. Weather to the general public and limit access to those AUTHORITY: Reorganization Plan No. 3 of persons having official business related 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; to the missions and operations of Mt. E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 13239, 3 Weather. The Director or the Senior CFR, 1979 Comp., p. 412; Federal Fire Preven- Resident Manager must approve all tion and Control Act of 1974, 15 U.S.C. 2201 et persons and vehicles entering Mt. seq.; delegation of authority from the Admin- Weather. All persons must register istrator of General Services, dated July 18, with the Mt. Weather Police/Security 1979; Pub.L. 80–566, approved June 1, 1948, 40 Force and must receive a Mt. Weather U.S.C. 318–318d; and the Federal Property and Administrative Services Act of 1949, 40 identification badge and vehicle park- U.S.C. 271 et seq. ing decal or permit to enter or remain on the premises. No person will enter SOURCE: 64 FR 31137, June 10, 1999, unless otherwise noted. or remain on Mt. Weather premises unless he or she has received permission § 15.1 Applicability. from the Director or the Senior Resi- dent Manager and has complied with The rules and regulations in this part these procedures. apply to all persons entering, while on, or leaving all the property known as § 15.4 Inspection. the Mt. Weather Emergency Assistance Center (Mt. Weather) located at 19844 (a) In general. All vehicles, packages, Blue Ridge Mountain Road, Bluemont, handbags, briefcases, and other con- Virginia 20135, and all the property tainers being brought into, while on or known as the National Emergency being removed from Mt. Weather or the Training Center (NETC), located on NETC are subject to inspection by the 16825 South Seton Avenue in Emmits- Police/Security Force and other au- burg, Maryland, which the Federal thorized officials. A full search of a ve- Emergency Management Agency hicle or person may accompany an ar- (FEMA) owns, operates and controls. rest. (b) Inspection at Mt. Weather. We au- § 15.2 Definitions. thorize inspection at Mt. Weather to Terms used in part 15 have these prevent the possession and use of items meanings: prohibited by these rules and regula- Administrator means the Adminis- tions or by other applicable laws, to trator, United States Fire Administra- prevent theft of property and to pre- tion, FEMA. vent the wrongful obtaining of defense Director means the Director of the information under 18 U.S.C. 793. If indi- Federal Emergency Management Agen- viduals object to such inspections they cy. must tell the officer on duty at the en- FEMA means the Federal Emergency trance gate before entering Mt. Weath- Management Agency. er. The Police/Security Force and other Mt. Weather means the Mt. Weather authorized officials must not authorize Emergency Assistance Center, or allow individuals who refuse to per- Bluemont, VA. mit an inspection of their vehicle or NETC means the National Emergency possessions to enter the premises of Training Center, Emmitsburg, MD. Mt. Weather.

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§ 15.5 Preservation of property. (a) Operating a motor vehicle by any At both Mt. Weather and NETC we person under the influence of alcoholic prohibit: beverages, narcotic drugs, (a) The improper disposal of rubbish; hallucinogens, marijuana, barbiturates (b) Willful destruction of or damage or amphetamines as defined in Title 21 to property; of the Annotated Code of Maryland, (c) Theft of property; Transportation, sec. 21–902 or in Title (d) Creation of any hazard on the 18.2, ch. 7, Art. 2 of the Code of Vir- property to persons or things; ginia, secs. 18.2–266 and 18.2–266.1, as ap- (e) Throwing articles of any kind plicable; from or at a building; (b) Entering upon or while on either (f) Climbing upon a fence; or property being under the influence of (g) Climbing upon the roof or any or using or possessing any narcotic part of a building. drug, marijuana, hallucinogen, barbitu- § 15.6 Compliance with signs and di- rate or amphetamine. This prohibition rections. does not apply in cases where a li- Persons at Mt. Weather and the censed physician has prescribed the NETC must comply at all times with drug for the person; official signs that prohibit, regulate, or (c) Entering upon either property or direct, and with the directions of the being on either property under the in- Police/Security Force and other au- fluence of alcoholic beverages; thorized officials. (d) Bringing alcoholic beverages, narcotic drugs, hallucinogens, marijuana, § 15.7 Disturbances. barbiturates or amphetamines onto the At both Mt. Weather and NETC we premises unless the Director, the Sen- prohibit any unwarranted loitering, ior Resident Manager, or the Adminis- disorderly conduct, or other conduct at trator or designee for the NETC au- Mt. Weather and NETC that: thorizes it in writing; and (a) Creates loud or unusual noise or a (e) Use of alcoholic beverages on the nuisance; property except: (b) Unreasonably obstructs the usual (1) In the Balloon Shed Lounge at Mt. use of classrooms, dormitory rooms, Weather and in other locations that entrances, foyers, lobbies, corridors, offices, elevators, stairways, roadways or the Director or the Senior Resident parking lots; Manager authorizes in writing; and (c) Otherwise impedes or disrupts the (2) In the Student Center at the performance of official duties by gov- NETC and other locations that the Di- ernment employees or government con- rector or the Administrator, or des- tractors; ignee, authorizes in writing. (d) Interferes with the delivery of educational or other programs; or § 15.10 Soliciting, vending, and debt (e) Prevents persons from obtaining collection. in a timely manner the administrative (a) We prohibit soliciting alms and services provided at both facilities. contributions, commercial or political soliciting and vending of all kinds, dis- § 15.8 Gambling. playing or distributing commercial ad- We prohibit participating in games vertising, or collecting private debts for money or other personal property, unless the Director for either facility including the operation of gambling de- or the Senior Resident Manager ap- vices, the conduct of a lottery or pool, prove the activities in writing and in or the sale or purchase of numbers tickets at both facilities. advance. (b) The prohibitions of this section do § 15.9 Alcoholic beverages and nar- not apply to: cotics. (1) National or local drives for funds At both Mt. Weather and the NETC for welfare, health, or other purposes we prohibit:

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as authorized by 5 CFR part 950, Solici- Federal Emergency Management Agen- tation of Federal Civilian and Uni- cy, Emmitsburg, MD 21727, (telephone) formed Service Personnel for Contribu- (301) 447–1223, (facsimile) (301) 447–1052, tions to Private Voluntary Organiza- or other authorized official where pho- tions. The Director, or the Senior Resi- tographs are to be taken. dent Manager, or the Administrator for the NETC or designee, must approve all § 15.13 Dogs and other animals. such national or local drives before Dogs and other animals, except see- they are conducted on either premises; ing-eye dogs, must not be brought onto (2) Authorized concessions; Mt. Weather grounds or into the build- (3) Personal notices posted by em- ings at NETC for other than official ployees on authorized bulletin boards; purposes. and (4) Solicitation of labor organization § 15.14 Vehicular and pedestrian traf- membership or dues authorized by oc- fic. cupant agencies under the Civil Service (a) Drivers of all vehicles entering or Reform Act of 1978, 5 U.S.C. 7101 et seq. while at Mt. Weather or the NETC must drive carefully and safely at all § 15.11 Distribution of handbills. times and must obey the signals and We prohibit the distribution of mate- directions of the Police/Security Force rials such as pamphlets, handbills or or other authorized officials and all flyers, and the displaying of placards or posted traffic signs; posting of materials on bulletin boards (b) Drivers must comply with NETC or elsewhere at Mt. Weather and the parking requirements and vehicle reg- NETC unless the Director, the Senior istration requirements; Resident Manager, or the Adminis- (c) At both Mt. Weather and the trator for the NETC or designee, ap- NETC we prohibit: proves such distribution or display, or (1) Blocking entrances, driveways, when such distribution or display is walks, loading platforms, or fire hy- conducted as part of authorized govern- drants on the property; and ment activities. (2) Parking without authority, parking in unauthorized locations or in lo- § 15.12 Photographs and other depic- cations reserved for other persons, or tions. parking contrary to the direction of (a) Photographs and other depictions at posted signs. Mt. Weather. We prohibit taking photo- (3) Where warning signs are posted graphs and making notes, sketches, or vehicles parked in violation may be re- diagrams of buildings, grounds or other moved at the owners’ risk and expense. features of Mt. Weather, or the posses- (d) The Director or the Senior Resi- sion of a camera while at Mt. Weather dent Manager or the Administrator for except when the Director or the Senior the NETC or designee may issue and Resident Manager approves in advance. post specific supplemental traffic di- (b) Photographs and other depictions at rectives if needed. When issued and the NETC. (1) Photographs may be posted supplemental traffic directives taken inside classroom or office areas will have the same force and effect as if of the NETC only with the consent of they were in these rules. Proof that a the occupants. Except where security parked motor vehicle violated these regulations apply or a Federal court rules or directives may be taken as order or rule prohibits it, photographs prima facie evidence that the reg- may be taken in entrances, lobbies, istered owner was responsible for the foyers, corridors, or auditoriums when violation. used for public meetings. (2) Subject to the foregoing prohibi- § 15.15 Weapons and explosives. tions, photographs for advertising and No person entering or while at Mt. commercial purposes may be taken Weather or the NETC will carry or pos- only with written permission of the As- sess firearms, other dangerous or dead- sistant Administrator, Management ly weapons, explosives or items in- Operations and Student Support, tended to be used or that could reason- United States Fire Administration, ably be used to fabricate an explosive

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or incendiary device, either openly or PART 16—ENFORCEMENT OF NON- concealed, except: DISCRIMINATION ON THE BASIS (a) For official purposes if the Direc- OF HANDICAP IN PROGRAMS tor or the Senior Resident Manager or OR ACTIVITIES CONDUCTED BY the Administrator for the NETC or des- THE FEDERAL EMERGENCY MAN- ignee approves; and AGEMENT AGENCY (b) In accordance with FEMA policy governing the possession of firearms. Sec. 16.101 Purpose. § 15.16 Penalties. 16.102 Application. (a) Misconduct. (1) Whoever is found 16.103 Definitions. guilty of violating any of these rules 16.104–16.109 [Reserved] and regulations is subject to a fine of 16.110 Self-evaluation. not more than $50 or imprisonment for 16.111 Notice. 16.112–16.129 [Reserved] not more than 30 days, or both. (See 40 16.130 General prohibitions against dis- U.S.C. 318c.) crimination. (2) We will process any misconduct at 16.131–16.139 [Reserved] NETC according to FEMA/NETC policy 16.140 Employment. or instructions. 16.141–16.148 [Reserved] (b) Parking violations. We may tow at 16.149 Program accessibility: Discrimina- tion prohibited. the owner’s expense any vehicles 16.150 Program accessibility: Existing fa- parked in violation of State law, cilities. FEMA, Mt. Weather, or NETC instruc- 16.151 Program accessibility: New construc- tions. tion and alterations. 16.152–16.159 [Reserved] § 15.17 Other laws. 16.160 Communications. 16.161–16.169 [Reserved] Nothing in the rules and regulations 16.170 Compliance procedures. in this part will be construed to abolish 16.171–16.999 [Reserved] any other Federal laws or any State AUTHORITY: 29 U.S.C. 794. and local laws and regulations applicable to Mt. Weather or NETC premises. SOURCE: 53 FR 25885, July 8, 1988, unless The rules and regulations in this part otherwise noted. supplement penal provisions of Title 18, § 16.101 Purpose. United States Code, relating to Crimes and Criminal Procedure, which apply The purpose of this regulation is to effectuate section 119 of the Rehabili- without regard to the place of the of- tation, Comprehensive Services, and fense and to those penal provisions Developmental Disabilities Amend- that apply in areas under the special ments of 1978, which amended section maritime and territorial jurisdiction of 504 of the Rehabilitation Act of 1973 to the United States, as defined in 18 prohibit discrimination on the basis of U.S.C. 7. They supersede provisions of handicap in programs or activities con- State law, however, that Federal law ducted by Executive agencies or the makes criminal offenses under the As- United States Postal Service. similated Crimes Act (18 U.S.C. 13) to the extent that State laws conflict § 16.102 Application. with these regulations. State and local This regulation (§§ 16.101 through criminal laws apply as such only to the 16.170) applies to all programs or activi- extent that the State reserved such au- ties conducted by the agency, except thority to itself by the State consent for programs or activities conducted or cession statute or that a Federal outside the United States that do not statute vests such authority in the involve individuals with handicaps in State. the United States.

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§ 16.103 Definitions. As used in this definition, the phrase: For purposes of this regulation, the (1) Physical or mental impairment in- term— cludes— Assistant Attorney General means the (i) Any physiological disorder or con- Assistant Attorney General, Civil dition, cosmetic disfigurement, or ana- Rights Division, United States Depart- tomical loss affecting one or more of ment of Justice. the following body systems: Neuro- Auxiliary aids means services or de- logical; musculoskeletal; special sense vices that enable persons with im- organs; respiratory, including speech paired sensory, manual, or speaking organs; cardiovascular; reproductive; skills to have an equal opportunity to digestive; genitourinary; hemic and participate in, and enjoy the benefits lymphatic; skin; and endocrine; or of, programs or activities conducted by (ii) Any mental or psychological dis- the agency. For example, auxiliary aids order, such as mental retardation, or- useful for persons with impaired vision ganic brain syndrome, emotional or include readers, Brailled materials, mental illness, and specific learning audio recordings, and other similar disabilities. The term physical or mental services and devices. Auxiliary aids impairment includes, but is not limited useful for persons with impaired hear- to, such diseases and conditions as or- ing include telephone handset ampli- thopedic, visual, speech, and hearing fiers, telephones compatible with hear- impairments, cerebral palsy, epilepsy, ing aids, telecommunication devices muscular dystrophy, multiple sclerosis, for deaf persons (TDD’s), interpreters, cancer, heart disease, diabetes, mental notetakers, written materials, and retardation, emotional illness, and other similar services and devices. drug addiction and alcoholism. Complete complaint means a written (2) Major life activities includes func- statement that contains the complain- tions such as caring for one’s self, per- ant’s name and address and describes forming manual tasks, walking, seeing, the agency’s alleged discriminatory ac- hearing, speaking, breathing, learning, tion in sufficient detail to inform the and working. agency of the nature and date of the al- (3) Has a record of such an impairment leged violation of section 504. It shall means has a history of, or has been be signed by the complainant or by misclassified as having, a mental or someone authorized to do so on his or physical impairment that substantially her behalf. Complaints filed on behalf limits one or more major life activi- of classes or third parties shall describe ties. or identify (by name, if possible) the (4) Is regarded as having an impairment alleged victims of discrimination. means— Facility means all or any portion of (i) Has a physical or mental impair- buildings, structures, equipment, ment that does not substantially limit roads, walks, parking lots, rolling major life activities but is treated by stock or other conveyances, or other the agency as constituting such a limi- real or personal property. tation; Historic preservation programs means (ii) Has a physical or mental impair- programs conducted by the agency that ment that substantially limits major have preservation of historic properties life activities only as a result of the at- as a primary purpose. titudes of others toward such impair- Historic properties means those prop- ment; or erties that are listed or eligible for (iii) Has none of the impairments de- listing in the National Register of His- fined in paragraph (1) of this definition toric Places or properties designated as but is treated by the agency as having historic under a statute of the appro- such an impairment. priate State or local government body. Qualified individual with handicaps Individual with handicaps means any means— person who has a physical or mental (1) With respect to preschool, elemen- impairment that substantially limits tary, or secondary education services one or more major life activities, has a provided by the agency, an individual record of such an impairment, or is re- with handicaps who is a member of a garded as having such an impairment. class of persons otherwise entitled by

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statute, regulation, or agency policy to (b) The agency shall provide an op- receive education services from the portunity to interested persons, includ- agency; ing individuals with handicaps or orga- (2) With respect to any other agency nizations representing individuals with program or activity under which a per- handicaps, to participate in the self- son is required to perform services or evaluation process by submitting com- to achieve a level of accomplishment, ments (both oral and written). an individual with handicaps who (c) The agency shall, for at least meets the essential eligibility require- three years following completion of the ments and who can achieve the purpose self-evaluation, maintain on file and of the program or activity without make available for public inspection: modifications in the program or activ- (1) A description of areas examined ity that the agency can demonstrate and any problems identified; and would result in a fundamental alter- (2) A description of any modifications ation in its nature; made. (3) With respect to any other program or activity, an individual with § 16.111 Notice. handicaps who meets the essential eligibility requirements for participation The agency shall make available to in, or receipt of benefits from, that pro- employees, applicants, participants, gram or activity; and beneficiaries, and other interested persons such information regarding the (4) Qualified handicapped person as provisions of this regulation and its ap- that term is defined for purposes of em- plicability to the programs or activi- ployment in 29 CFR 1613.702(f), which is ties conducted by the agency, and made applicable to this regulation by make such information available to § 16.140. them in such manner as the head of the Section 504 means section 504 of the agency finds necessary to apprise such Rehabilitation Act of 1973 (Pub. L. 93– persons of the protections against dis- 112, 87 Stat. 394 (29 U.S.C. 794)), as crimination assured them by section amended by the Rehabilitation Act 504 and this regulation. Amendments of 1974 (Pub. L. 93–516, 88 Stat. 1617); the Rehabilitation, Com- §§ 16.112–16.129 [Reserved] prehensive Services, and Develop- mental Disabilities Amendments of § 16.130 General prohibitions against 1978 (Pub. L. 95–602, 92 Stat. 2955); and discrimination. the Rehabilitation Act Amendments of 1986 (Pub. L. 99–506, 100 Stat. 1810). As (a) No qualified individual with used in this regulation, section 504 ap- handicaps shall, on the basis of handi- plies only to programs or activities cap, be excluded from participation in, conducted by Executive agencies and be denied the benefits of, or otherwise not to federally assisted programs. be subjected to discrimination under Substantial impairment means a sig- any program or activity conducted by nificant loss of the integrity of finished the agency. materials, design quality, or special (b)(1) The agency, in providing any character resulting from a permanent aid, benefit, or service, may not, di- alteration. rectly or through contractual, licensing, or other arrangements, on the §§ 16.104–16.109 [Reserved] basis of handicap— (i) Deny a qualified individual with § 16.110 Self-evaluation. handicaps the opportunity to partici- (a) The agency shall, by September 6, pate in or benefit from the aid, benefit, 1989, evaluate its current policies and or service; practices, and the effects thereof, that (ii) Afford a qualified individual with do not or may not meet the require- handicaps an opportunity to partici- ments of this regulation and, to the ex- pate in or benefit from the aid, benefit, tent modification of any such policies or service that is not equal to that af- and practices is required, the agency forded others; shall proceed to make the necessary (iii) Provide a qualified individual modifications. with handicaps with an aid, benefit, or

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service that is not as effective in af- uals with handicaps to discrimination fording equal opportunity to obtain the on the basis of handicap. same result, to gain the same benefit, (6) The agency may not administer a or to reach the same level of achieve- licensing or certification program in a ment as that provided to others; manner that subjects qualified individ- (iv) Provide different or separate aid, uals with handicaps to discrimination benefits, or services to individuals with on the basis of handicap, nor may the handicaps or to any class of individuals agency establish requirements for the with handicaps than is provided to oth- programs or activities of licensees or ers unless such action is necessary to certified entities that subject qualified provide qualified individuals with individuals with handicaps to discrimi- handicaps with aid, benefits, or serv- nation on the basis of handicap. How- ices that are as effective as those pro- ever, the programs or activities of enti- vided to others; ties that are licensed or certified by (v) Deny a qualified individual with the agency are not, themselves, cov- handicaps the opportunity to partici- ered by this regulation. pate as a member of planning or advi- (c) The exclusion of nonhandicapped sory boards; persons from the benefits of a program (vi) Otherwise limit a qualified indi- limited by Federal statute or Execu- vidual with handicaps in the enjoyment of any right, privilege, advan- tive order to individuals with handi- tage, or opportunity enjoyed by others caps or the exclusion of a specific class receiving the aid, benefit, or service. of individuals with handicaps from a (2) The agency may not deny a quali- program limited by Federal statute or fied individual with handicaps the op- Executive order to a different class of portunity to participate in programs or individuals with handicaps is not pro- activities that are not separate or dif- hibited by this regulation. ferent, despite the existence of permis- (d) The agency shall administer pro- sibly separate or different programs or grams and activities in the most inte- activities. grated setting appropriate to the needs (3) The agency may not, directly or of qualified individuals with handicaps. through contractual or other arrangements, utilize criteria or methods of §§ 16.131–16.139 [Reserved] administration the purpose or effect of § 16.140 Employment. which would— (i) Subject qualified individuals with No qualified individual with handi- handicaps to discrimination on the caps shall, on the basis of handicap, be basis of handicap; or subject to discrimination in employ- (ii) Defeat or substantially impair ac- ment under any program or activity complishment of the objectives of a conducted by the agency. The defini- program or activity with respect to in- tions, requirements, and procedures of dividuals with handicaps. section 501 of the Rehabilitation Act of (4) The agency may not, in deter- 1973 (29 U.S.C. 791), as established by mining the site or location of a facil- the Equal Employment Opportunity ity, make selections the purpose or ef- Commission in 29 CFR part 1613, shall fect of which would— apply to employment in federally con- (i) Exclude individuals with handi- ducted programs or activities. caps from, deny them the benefits of, or otherwise subject them to discrimi- §§ 16.141–16.148 [Reserved] nation under any program or activity conducted by the agency; or § 16.149 Program accessibility: Dis- crimination prohibited. (ii) Defeat or substantially impair the accomplishment of the objectives Except as otherwise provided in of a program or activity with respect § 16.150, no qualified individual with to individuals with handicaps. handicaps shall, because the agency’s (5) The agency, in the selection of facilities are inaccessible to or unus- procurement contractors, may not use able by individuals with handicaps, be criteria that subject qualified individ- denied the benefits of, be excluded from

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participation in, or otherwise be sub- ment of aides to beneficiaries, home jected to discrimination under any pro- visits, delivery of services at alternate gram or activity conducted by the accessible sites, alteration of existing agency. facilities and construction of new facilities, use of accessible rolling stock, § 16.150 Program accessibility: Exist- or any other methods that result in ing facilities. making its programs or activities read- (a) General. The agency shall operate ily accessible to and usable by individ- each program or activity so that the uals with handicaps. The agency is not program or activity, when viewed in its required to make structural changes in entirety, is readily accessible to and existing facilities where other methods usable by individuals with handicaps. are effective in achieving compliance This paragraph does not— with this section. The agency, in mak- (1) Necessarily require the agency to ing alterations to existing buildings, make each of its existing facilities ac- shall meet accessibility requirements cessible to and usable by individuals to the extent compelled by the Archi- with handicaps; tectural Barriers Act of 1968, as amend- (2) In the case of historic preserva- ed (42 U.S.C. 4151 through 4157), and any tion programs, require the agency to regulations implementing it. In choos- take any action that would result in a ing among available methods for meet- substantial impairment of significant ing the requirements of this section, historic features of an historic prop- the agency shall give priority to those erty; or methods that offer programs and ac- (3) Require the agency to take any tivities to qualified individuals with action that it can demonstrate would handicaps in the most integrated set- result in a fundamental alteration in ting appropriate. the nature of a program or activity or (2) Historic preservation programs. In in undue financial and administrative meeting the requirements of § 16.150(a) burdens. In those circumstances where in historic preservation programs, the agency personnel believe that the pro- agency shall give priority to methods posed action would fundamentally that provide physical access to individ- alter the program or activity or would uals with handicaps. In cases where a result in undue financial and adminis- physical alteration to an historic prop- trative burdens, the agency has the erty is not required because of burden of proving that compliance with § 16.150(a) (2) or (3), alternative methods § 16.150(a) would result in such alter- of achieving program accessibility ination or burdens. The decision that clude— compliance would result in such alteration or burdens must be made by the (i) Using audio-visual materials and agency head or his or her designee devices to depict those portions of an after considering all agency resources historic property that cannot other- available for use in the funding and op- wise be made accessible; eration of the conducted program or (ii) Assigning persons to guide indi- activity, and must be accompanied by viduals with handicaps into or through a written statement of the reasons for portions of historic properties that reaching that conclusion. If an action cannot otherwise be made accessible; would result in such an alteration or or such burdens, the agency shall take (iii) Adopting other innovative meth- any other action that would not result ods. in such an alteration or such burdens (c) Time period for compliance. The but would nevertheless ensure that in- agency shall comply with the obliga- dividuals with handicaps receive the tions established under this section by benefits and services of the program or November 7, 1988, except that where activity. structural changes in facilities are un- (b) Methods—(1) General. The agency dertaken, such changes shall be made may comply with the requirements of by September 6, 1991, but in any event this section through such means as reas expeditiously as possible. design of equipment, reassignment of (d) Transition plan. In the event that services to accessible buildings, assign- structural changes to facilities will be

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undertaken to achieve program acces- and enjoy the benefits of, a program or sibility, the agency shall develop, by activity conducted by the agency. March 6, 1989, a transition plan setting (i) In determining what type of auxil- forth the steps necessary to complete iary aid is necessary, the agency shall such changes. The agency shall provide give primary consideration to the re- an opportunity to interested persons, quests of the individual with handi- including individuals with handicaps or caps. organizations representing individuals (ii) The agency need not provide indi- with handicaps, to participate in the vidually prescribed devices, readers for development of the transition plan by personal use or study, or other devices submitting comments (both oral and of a personal nature. written). A copy of the transition plan (2) Where the agency communicates shall be made available for public in- with applicants and beneficiaries by spection. The plan shall, at a min- telephone, telecommunication devices imum— for deaf persons (TDD’s) or equally ef- (1) Identify physical obstacles in the fective telecommunication systems agency’s facilities that limit the acces- shall be used to communicate with per- sibility of its programs or activities to sons with impaired hearing. individuals with handicaps; (b) The agency shall ensure that in- (2) Describe in detail the methods terested persons, including persons that will be used to make the facilities with impaired vision or hearing, can accessible; obtain information as to the existence (3) Specify the schedule for taking and location of accessible services, ac- the steps necessary to achieve compli- tivities, and facilities. ance with this section and, if the time (c) The agency shall provide signage period of the transition plan is longer at a primary entrance to each of its in- than one year, identify steps that will accessible facilities, directing users to be taken during each year of the tran- a location at which they can obtain in- sition period; and formation about accessible facilities. (4) Indicate the official responsible The international symbol for accessi- for implementation of the plan. bility shall be used at each primary entrance of an accessible facility. § 16.151 Program accessibility: New (d) This section does not require the construction and alterations. agency to take any action that it can Each building or part of a building demonstrate would result in a funda- that is constructed or altered by, on mental alteration in the nature of a behalf of, or for the use of the agency program or activity or in undue finan- shall be designed, constructed, or al- cial and administrative burdens. In tered so as to be readily accessible to those circumstances where agency per- and usable by individuals with handi- sonnel believe that the proposed action caps. The definitions, requirements, would fundamentally alter the program and standards of the Architectural Bar- or activity or would result in undue fi- riers Act (42 U.S.C. 4151–4157), as estab- nancial and administrative burdens, lished in 41 CFR 101–19.600 to 101–19.607, the agency has the burden of proving apply to buildings covered by this sec- that compliance with § 16.160 would re- tion. sult in such alteration or burdens. The decision that compliance would result §§ 16.152–16.159 [Reserved] in such alteration or burdens must be made by the agency head or his or her § 16.160 Communications. designee after considering all agency (a) The agency shall take appropriate resources available for use in the fund- steps to ensure effective communica- ing and operation of the conducted pro- tion with applicants, participants, per- gram or activity and must be accom- sonnel of other Federal entities, and panied by a written statement of the members of the public. reasons for reaching that conclusion. If (1) The agency shall furnish appro- an action required to comply with this priate auxiliary aids where necessary section would result in such an alter- to afford an individual with handicaps ation or such burdens, the agency shall an equal opportunity to participate in, take any other action that would not

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result in such an alteration or such (2) A description of a remedy for each burdens but would nevertheless ensure violation found; and that, to the maximum extent possible, (3) A notice of the right to appeal. individuals with handicaps receive the (h) Appeals of the findings of fact and benefits and services of the program or conclusions of law or remedies must be activity. filed by the complainant within 90 days of receipt from the agency of the letter §§ 16.161–16.169 [Reserved] required by paragraph (g) of this section. The agency may extend this time § 16.170 Compliance procedures. for good cause. (a) Except as provided in paragraph (i) Timely appeals shall be accepted (b) of this section, this section applies and processed by the head of the agen- to all allegations of discrimination on cy. the basis of handicap in programs and (j) The head of the agency shall no- activities conducted by the agency. tify the complainant of the results of (b) The agency shall process com- the appeal within 60 days of the receipt plaints alleging violations of section of the request. If the head of the agen- 504 with respect to employment accord- cy determines that additional informa- ing to the procedures established by tion is needed from the complainant, the Equal Employment Opportunity he or she shall have 60 days from the Commission in 29 CFR part 1613 pursu- date of receipt of the additional infor- ant to section 501 of the Rehabilitation mation to make his or her determina- Act of 1973 (29 U.S.C. 791). tion on the appeal. (c) The Director of Personnel shall be (k) The time limits cited in para- responsible for coordinating implemen- graphs (g) and (j) of this section may be tation of this section. Complaints may extended with the permission of the be sent to Director of Personnel, Room Assistant Attorney General. 810, Federal Emergency Management (l) The agency may delegate its au- Agency, 500 C Street, SW., Washington, thority for conducting complaint in- DC 20472. vestigations to other Federal agencies, (d) The agency shall accept and in- except that the authority for making vestigate all complete complaints for the final determination may not be which it has jurisdiction. All complete delegated to another agency. complaints must be filed within 180 days of the alleged act of discrimina- §§ 16.171–16.999 [Reserved] tion. The agency may extend this time period for good cause. (e) If the agency receives a complaint PART 17—GOVERNMENTWIDE DE- over which it does not have jurisdic- BARMENT AND SUSPENSION tion, it shall promptly notify the com- (NONPROCUREMENT) AND GOV- plainant and shall make reasonable ef- ERNMENTWIDE REQUIREMENTS forts to refer the complaint to the ap- FOR DRUG-FREE WORKPLACE propriate Government entity. (GRANTS) (f) The agency shall notify the Archi- tectural and Transportation Barriers Subpart A—General Compliance Board upon receipt of any complaint alleging that a building or Sec. facility that is subject to the Architec- 17.100 Purpose. tural Barriers Act of 1968, as amended 17.105 Definitions. (42 U.S.C. 4151–4157), is not readily ac- 17.110 Coverage. cessible to and usable by individuals 17.115 Policy. with handicaps. (g) Within 180 days of the receipt of a Subpart B—Effect of Action complete complaint for which it has ju- 17.200 Debarment or suspension. risdiction, the agency shall notify the 17.205 Ineligible persons. complainant of the results of the inves- 17.210 Voluntary exclusion. tigation in a letter containing— 17.215 Exception provision. (1) Findings of fact and conclusions 17.220 Continuation of covered transactions. of law; 17.225 Failure to adhere to restrictions.

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Subpart C—Debarment FR 8953, Mar. 5, 1985; 52 FR 18768, May 19, 1987; and 52 FR 45667, Dec. 1, 1987. 17.300 General. 17.305 Causes for debarment. 17.310 Procedures. Subpart A—General 17.311 Investigation and referral. 17.312 Notice of proposed debarment. § 17.100 Purpose. 17.313 Opportunity to contest proposed de- (a) Executive Order (E.O.) 12549 pro- barment. vides that, to the extent permitted by 17.314 Debarring official’s decision. law, Executive departments and agen- 17.315 Settlement and voluntary exclusion. cies shall participate in a government- 17.320 Period of debarment. wide system for nonprocurement debar- 17.325 Scope of debarment. ment and suspension. A person who is Subpart D—Suspension debarred or suspended shall be excluded from Federal financial and non- 17.400 General. financial assistance and benefits under 17.405 Causes for suspension. Federal programs and activities. De- 17.410 Procedures. barment or suspension of a participant 17.411 Notice of suspension. in a program by one agency shall have 17.412 Opportunity to contest suspension. 17.413 Suspending official’s decision. governmentwide effect. 17.415 Period of suspension. (b) These regulations implement sec- 17.420 Scope of suspension. tion 3 of E.O. 12549 and the guidelines promulgated by the Office of Manage- Subpart E—Responsibilities of GSA, Agency ment and Budget under section 6 of the and Participants E.O. by: (1) Prescribing the programs and ac- 17.500 GSA responsibilities. 17.505 FEMA responsibilities. tivities that are covered by the govern- 17.510 Participants’ responsibilities. mentwide system; (2) Prescribing the governmentwide Subpart F—Drug-Free Workplace criteria and governmentwide minimum Requirements (Grants) due process procedures that each agency shall use; 17.600 Purpose. (3) Providing for the listing of 17.605 Definitions. debarred and suspended participants, 17.610 Coverage. 17.615 Grounds for suspension of payments, participants declared ineligible (see suspension or termination of grants, or definition of ‘‘ineligible’’ in § 17.105), suspension or debarment. and participants who have voluntarily 17.620 Effect of violation. excluded themselves from participation 17.625 Exception provision. in covered transactions; 17.630 Certification requirements and proce- (4) Setting forth the consequences of dures. a debarment, suspension, determina- 17.635 Reporting of and employee sanctions tion of ineligibility, or voluntary ex- for convictions of criminal drug offenses. clusion; and APPENDIX A TO PART 17—CERTIFICATION RE- (5) Offering such other guidance as GARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS—PRI- necessary for the effective implementa- MARY COVERED TRANSACTIONS tion and administration of the govern- APPENDIX B TO PART 17—CERTIFICATION RE- mentwide system. GARDING DEBARMENT, SUSPENSION, INELI- (c) These regulations also implement GIBILITY AND VOLUNTARY EXCLUSION— Executive Order 12689 (3 CFR, 1989 LOWER TIER COVERED TRANSACTIONS Comp., p. 235) and 31 U.S.C. 6101 note APPENDIX C TO PART 17—CERTIFICATION RE- (Public Law 103–355, sec. 2455, 108 Stat. GARDING DRUG-FREE WORKPLACE RE- 3327) by— QUIREMENTS (1) Providing for the inclusion in the AUTHORITY: 41 U.S.C. 701 et seq.; E.O. 12549, List of Parties Excluded from Federal Pro- 51 FR 6370, 3 CFR, 1986 Comp., p. 189; E.O. curement and Nonprocurement Programs 12689, 54 FR 34131, 3 CFR, 1989 Comp., p. 235. all persons proposed for debarment, SOURCE: 53 FR 19199, and 19204, May 26, 1988, debarred or suspended under the Fed- unless otherwise noted. eral Acquisition Regulation, 48 CFR EDITORIAL NOTE: For additional informa- Part 9, subpart 9.4; persons against tion, see related documents published at 50 which governmentwide exclusions have

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been entered under this part; and per- from participating in covered trans- sons determined to be ineligible; and actions. A person so excluded is (2) Setting forth the consequences of ‘‘debarred.’’ a debarment, suspension, determina- Debarring official. An official author- tion of ineligibility, or voluntary ex- ized to impose debarment. The debar- clusion. ring official is either: (d) Although these regulations cover The agency head, or the listing of ineligible participants An official designated by the agency and the effect of such listing, they do head. not prescribe policies and procedures Indictment. Indictment for a criminal governing declarations of ineligibility. offense. An information or other filing [60 FR 33040, 33061, June 26, 1995] by competent authority charging a criminal offense shall be given the § 17.105 Definitions. same effect as an indictment. The following definitions apply to Ineligible. Excluded from participa- this part: tion in Federal nonprocurement pro- Adequate evidence. Information suffi- grams pursuant to a determination of cient to support the reasonable belief ineligibility under statutory, executive that a particular act or omission has order, or regulatory authority, other occurred. than Executive Order 12549 and its Affiliate. Persons are affiliates of agency implementing regulations; for each other if, directly or indirectly, ei- exemple, excluded pursuant to the ther one controls or has the power to Davis-Bacon Act and its implementing control the other, or, a third person regulations, the equal employment op- controls or has the power to control portunity acts and executive orders, or both. Indicia of control include, but are the environmental protection acts and not limited to: interlocking manage- executive orders. A person is ineligible ment or ownership, identity of inter- where the determination of ineligi- ests among family members, shared fa- bility affects such person’s eligibility cilities and equipment, common use of to participate in more than one cov- employees, or a business entity orga- ered transaction. nized following the suspension or de- Legal proceedings. Any criminal pro- barment of a person which has the ceeding or any civil judicial proceeding same or similar management, owner- to which the Federal Government or a ship, or principal employees as the sus- State or local government or quasi- pended, debarred, ineligible, or volun- governmental authority is a party. The tarily excluded person. term includes appeals from such pro- Agency. Any executive department, ceedings. military department or defense agency List of Parties Excluded from Federal or other agency of the executive Procurement and Nonprocurement Pro- branch, excluding the independent reg- grams. A list compiled, maintained and ulatory agencies. distributed by the General Services Ad- Civil judgment. The disposition of a ministration (GSA) containing the civil action by any court of competent names and other information about jurisdiction, whether entered by ver- persons who have been debarred, sus- dict, decision, settlement, stipulation, pended, or voluntarily excluded under or otherwise creating a civil liability Executive Orders 12549 and 12689 and for the wrongful acts complained of; or these regulations or 48 CFR part 9, sub- a final determination of liability under part 9.4, persons who have been pro- the Program Fraud Civil Remedies Act posed for debarment under 48 CFR part of 1988 (31 U.S.C. 3801–12). 9, subpart 9.4, and those persons who Conviction. A judgment or conviction have been determined to be ineligible. of a criminal offense by any court of Notice. A written communication competent jurisdiction, whether en- served in person or sent by certified tered upon a verdict or a plea, includ- mail, return receipt requested, or its ing a plea of nolo contendere. equivalent, to the last known address Debarment. An action taken by a de- of a party, its identified counsel, its barring official in accordance with agent for service of process, or any these regulations to exclude a person partner, officer, director, owner, or

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joint venturer of the party. Notice, if ment. A State instrumentality will be undeliverable, shall be considered to considered part of the State govern- have been received by the addressee ment if it has a written determination five days after being properly sent to from a State government that such the last address known by the agency. State considers that instrumentality Participant. Any person who submits to be an agency of the State govern- a proposal for, enters into, or reason- ment. ably may be expected to enter into a Suspending official. An official au- covered transaction. This term also in- thorized to impose suspension. The sus- cludes any person who acts on behalf of pending official is either: or is authorized to commit a partici- The agency head, or pant in a covered transaction as an An official designated by the agency agent or representative of another par- head. ticipant. Suspension. An action taken by a sus- Person. Any individual, corporation, pending official in accordance with partnership, association, unit of gov- these regulations that immediately ex- ernment or legal entity, however orga- cludes a person from participating in nized, except: foreign governments or covered transactions for a temporary foreign governmental entities, public period, pending completion of an inves- international organizations, foreign tigation and such legal, debarment, or government owned (in whole or in part) Program Fraud Civil Remedies Act or controlled entities, and entities con- proceedings as may ensue. A person so sisting wholly or partially of foreign excluded is ‘‘suspended.’’ governments or foreign governmental Voluntary exclusion or voluntarily ex- entities. cluded. A status of nonparticipation or Preponderance of the evidence. Proof limited participation in covered trans- by information that, compared with actions assumed by a person pursuant that opposing it, leads to the conclu- to the terms of a settlement. sion that the fact at issue is more prob- FEMA. Federal Emergency Manage- ably true than not. ment Agency. Principal. Officer, director, owner, [53 FR 19199, 19200, and 19204, May 26, 1988, as partner, key employee, or other person amended at 60 FR 33041, 33061, June 26, 1995] within a participant with primary management or supervisory respon- § 17.110 Coverage. sibilities; or a person who has a critical (a) These regulations apply to all per- influence on or substantive control sons who have participated, are cur- over a covered transaction, whether or rently participating or may reasonably not employed by the participant. Per- be expected to participate in trans- sons who have a critical influence on or actions under Federal nonprocurement substantive control over a covered programs. For purposes of these regula- transaction are: tions such transactions will be referred Principal investigators. [Reserved] to as ‘‘covered transactions.’’ Proposal. A solicited or unsolicited (1) Covered transaction. For purposes bid, application, request, invitation to of these regulations, a covered trans- consider or similar communication by action is a primary covered transaction or on behalf of a person seeking to par- or a lower tier covered transaction. ticipate or to receive a benefit, directly Covered transactions at any tier need or indirectly, in or under a covered not involve the transfer of Federal transaction. funds. Respondent. A person against whom a (i) Primary covered transaction. Except debarment or suspension action has as noted in paragraph (a)(2) of this sec- been initiated. tion, a primary covered transaction is State. Any of the States of the United any nonprocurement transaction be- States, the District of Columbia, the tween an agency and a person, regard- Commonwealth of Puerto Rico, any less of type, including: grants, coopera- territory or possession of the United tive agreements, scholarships, fellow- States, or any agency of a State, exclu- ships, contracts of assistance, loans, sive of institutions of higher education, loan guarantees, subsidies, insurance, hospitals, and units of local govern- payments for specified use, donation

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agreements and any other nonprocure- (v) Transactions pursuant to national ment transactions between a Federal or agency-recognized emergencies or agency and a person. Primary covered disasters; transactions also include those trans- (vi) Incidental benefits derived from actions specially designated by the ordinary governmental operations; and U.S. Department of Housing and Urban (vii) Other transactions where the ap- Development in such agency’s regula- plication of these regulations would be tions governing debarment and suspen- prohibited by law. sion. (b) Relationship to other sections. This (ii) Lower tier covered transaction. A section describes the types of trans- lower tier covered transaction is: actions to which a debarment or sus- (A) Any transaction between a par- pension under the regulations will ticipant and a person other than a pro- apply. Subpart B, ‘‘Effect of Action,’’ curement contract for goods or serv- § 17.200, ‘‘Debarment or suspension,’’ ices, regardless of type, under a pri- sets forth the consequences of a debar- mary covered transaction. ment or suspension. Those con- (B) Any procurement contract for sequences would obtain only with re- goods or services between a participant spect to participants and principals in and a person, regardless of type, ex- the covered transactions and activities pected to equal or exceed the Federal described in § 17.110(a). Sections 17.325, procurement small purchase threshold ‘‘Scope of debarment,’’ and 17.420, fixed at 10 U.S.C. 2304(g) and 41 U.S.C. ‘‘Scope of suspension,’’ govern the ex- 253(g) (currently $25,000) under a pri- tent to which a specific participant or mary covered transaction. organizational elements of a partici- (C) Any procurement contract for pant would be automatically included goods or services between a participant within a debarment or suspension ac- and a person under a covered trans- tion, and the conditions under which action, regardless of amount, under affiliates or persons associated with a which that person will have a critical participant may also be brought within influence on or substantive control the scope of the action. over that covered transaction. Such (c) persons are: Relationship to Federal procurement activities. In accordance with E.O. 12689 (1) Principal investigators. and section 2455 of Public Law 103–355, (2) Providers of federally-required any debarment, suspension, proposed audit services. debarment or other governmentwide (2) Exceptions. The following trans- exclusion initiated under the Federal actions are not covered: Acquisition Regulation (FAR) on or (i) Statutory entitlements or manda- after August 25, 1995 shall be recog- tory awards (but not subtier awards nized by and effective for Executive thereunder which are not themselves Branch agencies and participants as an mandatory), including deposited funds exclusion under this regulation. Simi- insured by the Federal Government; larly, any debarment, suspension or (ii) Direct awards to foreign govern- other governmentwide exclusion initi- ments or public international organiza- ated under this regulation on or after tions, or transactions with foreign gov- August 25, 1995 shall be recognized by ernments or foreign governmental en- and effective for those agencies as a de- tities, public international organiza- barment or suspension under the FAR. tions, foreign government owned (in whole or in part) or controlled entities, [53 FR 19199, and 19204, May 26, 1988, as entities consisting wholly or partially amended at 60 FR 33041, 33061, June 26, 1995] of foreign governments or foreign governmental entities; § 17.115 Policy. (iii) Benefits to an individual as a (a) In order to protect the public in- personal entitlement without regard to terest, it is the policy of the Federal the individual’s present responsibility Government to conduct business only (but benefits received in an individual’s with responsible persons. Debarment business capacity are not excepted); and suspension are discretionary ac- (iv) Federal employment; tions that, taken in accordance with

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Executive Order 12549 and these regula- (2) Direct awards to foreign govern- tions, are appropriate means to implements or public international organiza- ment this policy. tions, or transactions with foreign gov- (b) Debarment and suspension are se- ernments or foreign governmental en- rious actions which shall be used only tities, public international organiza- in the public interest and for the Fed- tions, foreign government owned (in eral Government’s protection and not whole or in part) or controlled entities, for purposes of punishment. Agencies and entities consisting wholly or par- may impose debarment or suspension tially of foreign governments or for- for the causes and in accordance with eign governmental entities; the procedures set forth in these regu- (3) Benefits to an individual as a per- lations. sonal entitlement without regard to (c) When more than one agency has the individual’s present responsibility an interest in the proposed debarment (but benefits received in an individual’s or suspension of a person, consider- business capacity are not excepted); ation shall be given to designating one (4) Federal employment; agency as the lead agency for making (5) Transactions pursuant to national the decision. Agencies are encouraged to establish methods and procedures or agency-recognized emergencies or for coordinating their debarment or disasters; suspension actions. (6) Incidental benefits derived from ordinary governmental operations; and Subpart B—Effect of Action (7) Other transactions where the application of these regulations would be § 17.200 Debarment or suspension. prohibited by law. (a) Primary covered transactions. Ex- [60 FR 33041, 33061, June 26, 1995] cept to the extent prohibited by law, persons who are debarred or suspended § 17.205 Ineligible persons. shall be excluded from primary covered Persons who are ineligible, as defined transactions as either participants or in § 17.105(i), are excluded in accordance principals throughout the Executive with the applicable statutory, execu- Branch of the Federal Government for tive order, or regulatory authority. the period of their debarment, suspension, or the period they are proposed § 17.210 Voluntary exclusion. for debarment under 48 CFR part 9, Persons who accept voluntary exclu- subpart 9.4. Accordingly, no agency sions under § 17.315 are excluded in ac- shall enter into primary covered trans- cordance with the terms of their settle- actions with such excluded persons during such period, except as permitted ments. FEMA shall, and participants pursuant to § 17.215. may, contact the original action agency to ascertain the extent of the exclu- (b) Lower tier covered transactions. Ex- cept to the extent prohibited by law, sion. persons who have been proposed for de- § 17.215 Exception provision. barment under 48 CFR part 9, subpart 9.4, debarred or suspended shall be ex- FEMA may grant an exception per- cluded from participating as either mitting a debarred, suspended, or vol- participants or principals in all lower untarily excluded person, or a person tier covered transactions (see proposed for debarment under 48 CFR § 17.110(a)(1)(ii)) for the period of their part 9, subpart 9.4, to participate in a exclusion. particular covered transaction upon a (c) Exceptions. Debarment or suspen- written determination by the agency sion does not affect a person’s eligi- head or an authorized designee stating bility for— the reason(s) for deviating from the (1) Statutory entitlements or manda- Presidential policy established by Ex- tory awards (but not subtier awards ecutive Order 12549 and § 17.200. How- thereunder which are not themselves ever, in accordance with the Presi- mandatory), including deposited funds dent’s stated intention in the Execu- insured by the Federal Government; tive Order, exceptions shall be granted

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only infrequently. Exceptions shall be pendix B of these regulations), unless it reported in accordance with § 17.505(a). knows that the certification is erroneous. An agency has the burden of [60 FR 33041, 33061, June 26, 1995] proof that a participant did knowingly § 17.220 Continuation of covered trans- do business with a person that filed an actions. erroneous certification. (a) Notwithstanding the debarment, [60 FR 33041, 33061, June 26, 1995] suspension, proposed debarment under 48 CFR part 9, subpart 9.4, determina- Subpart C—Debarment tion of ineligibility, or voluntary exclusion of any person by an agency, § 17.300 General. agencies and participants may con- The debarring official may debar a tinue covered transactions in existence person for any of the causes in § 17.305, at the time the person was debarred, using procedures established in §§ 17.310 suspended, proposed for debarment through 17.314. The existence of a cause under 48 CFR part 9, subpart 9.4, de- for debarment, however, does not nec- clared ineligible, or voluntarily ex- essarily require that the person be cluded. A decision as to the type of ter- debarred; the seriousness of the per- mination action, if any, to be taken son’s acts or omissions and any miti- should be made only after thorough re- gating factors shall be considered in view to ensure the propriety of the pro- making any debarment decision. posed action. (b) Agencies and participants shall § 17.305 Causes for debarment. not renew or extend covered trans- Debarment may be imposed in ac- actions (other than no-cost time exten- cordance with the provisions of §§ 17.300 sions) with any person who is debarred, through 17.314 for: suspended, proposed for debarment (a) Conviction of or civil judgment under 48 CFR part 9, subpart 9.4, ineli- for: gible or voluntary excluded, except as (1) Commission of fraud or a criminal provided in § 17.215. offense in connection with obtaining, [60 FR 33041, 33061, June 26, 1995] attempting to obtain, or performing a public or private agreement or trans- § 17.225 Failure to adhere to restric- action; tions. (2) Violation of Federal or State anti- (a) Except as permitted under § 17.215 trust statutes, including those pro- or § 17.220, a participant shall not scribing price fixing between competi- knowingly do business under a covered tors, allocation of customers between transaction with a person who is— competitors, and bid rigging; (1) Debarred or suspended; (3) Commission of embezzlement, (2) Proposed for debarment under 48 theft, forgery, bribery, falsification or CFR part 9, subpart 9.4; or destruction of records, making false (3) Ineligible for or voluntarily ex- statements, receiving stolen property, cluded from the covered transaction. making false claims, or obstruction of (b) Violation of the restriction under justice; or paragraph (a) of this section may re- (4) Commission of any other offense sult in disallowance of costs, annul- indicating a lack of business integrity ment or termination of award, issuance or business honesty that seriously and of a stop work order, debarment or sus- directly affects the present responsi- pension, or other remedies as appro- bility of a person. priate. (b) Violation of the terms of a public (c) A participant may rely upon the agreement or transaction so serious as certification of a prospective partici- to affect the integrity of an agency pant in a lower tier covered trans- program, such as: action that it and its principals are not (1) A willful failure to perform in ac- debarred, suspended, proposed for de- cordance with the terms of one or more barment under 48 CFR part 9, subpart public agreements or transactions; 9.4, ineligible, or voluntarily excluded (2) A history of failure to perform or from the covered transaction (See Ap- of unsatisfactory performance of one or

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more public agreements or trans- barring official may issue a notice of actions; or proposed debarment. (3) A willful violation of a statutory or regulatory provision or requirement § 17.312 Notice of proposed debarment. applicable to a public agreement or A debarment proceeding shall be ini- transaction. tiated by notice to the respondent ad- (c) Any of the following causes: vising: (1) A nonprocurement debarment by (a) That debarment is being consid- any Federal agency taken before Octo- ered; ber 1, 1988, the effective date of these (b) Of the reasons for the proposed regulations, or a procurement debarment by any Federal agency taken pur- debarment in terms sufficient to put suant to 48 CFR subpart 9.4; the respondent on notice of the con- (2) Knowingly doing business with a duct or transaction(s) upon which it is debarred, suspended, ineligible, or vol- based; untarily excluded person, in connection (c) Of the cause(s) relied upon under with a covered transaction, except as § 17.305 for proposing debarment; permitted in § 17.215 or § 17.220; (d) Of the provisions of §§ 17.311 (3) Failure to pay a single substantial through 17.314, and any other FEMA debt, or a number of outstanding debts procedures, if applicable, governing de- (including disallowed costs and over- barment decisionmaking; and payments, but not including sums owed (e) Of the potential effect of a debar- the Federal Government under the In- ment. ternal Revenue Code) owed to any Fed- eral agency or instrumentality, pro- § 17.313 Opportunity to contest provided the debt is uncontested by the posed debarment. debtor or, if contested, provided that (a) Submission in opposition. Within 30 the debtor’s legal and administrative days after receipt of the notice of pro- remedies have been exhausted; or posed debarment, the respondent may (4) Violation of a material provision submit, in person, in writing, or of a voluntary exclusion agreement en- through a representative, information tered into under § 17.315 or of any set- and argument in opposition to the pro- tlement of a debarment or suspension action. posed debarment. (5) Violation of any requirement of (b) Additional proceedings as to dis- subpart F of this part, relating to pro- puted material facts. (1) In actions not viding a drug-free workplace, as set based upon a conviction or civil judg- forth in § 17.615 of this part. ment, if the debarring official finds (d) Any other cause of so serious or that the respondent’s submission in op- compelling a nature that it affects the position raises a genuine dispute over present responsibility of a person. facts material to the proposed debarment, respondent(s) shall be afforded [53 FR 19199, and 19204, May 26, 1988, as amended at 54 FR 4963, Jan. 31, 1989] an opportunity to appear with a representative, submit documentary evi- § 17.310 Procedures. dence, present witnesses, and confront any witness the agency presents. FEMA shall process debarment actions as informally as practicable, con- (2) A transcribed record of any addi- sistent with the principles of funda- tional proceedings shall be made avail- mental fairness, using the procedures able at cost to the respondent, upon rein §§ 17.311 through 17.314. quest, unless the respondent and the agency, by mutual agreement, waive § 17.311 Investigation and referral. the requirement for a transcript. Information concerning the existence § 17.314 Debarring official’s decision. of a cause for debarment from any source shall be promptly reported, in- (a) No additional proceedings necessary. vestigated, and referred, when appro- In actions based upon a conviction or priate, to the debarring official for con- civil judgment, or in which there is no sideration. After consideration, the de- genuine dispute over material facts,

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the debarring official shall make a de- (2) If the debarring official decides cision on the basis of all the informa- not to impose debarment, the respond- tion in the administrative record, in- ent shall be given prompt notice of cluding any submission made by the re- that decision. A decision not to impose spondent. The decision shall be made debarment shall be without prejudice within 45 days after receipt of any in- to a subsequent imposition of debar- formation and argument submitted by ment by any other agency. the respondent, unless the debarring official extends this period for good § 17.315 Settlement and voluntary ex- cause. clusion. (b) Additional proceedings necessary. (a) When in the best interest of the (1) In actions in which additional pro- Government, FEMA may, at any time, ceedings are necessary to determine settle a debarment or suspension ac- disputed material facts, written find- tion. ings of fact shall be prepared. The de- (b) If a participant and the agency barring official shall base the decision agree to a voluntary exclusion of the on the facts as found, together with participant, such voluntary exclusion any information and argument sub- shall be entered on the Nonprocure- mitted by the respondent and any ment List (see subpart E). other information in the administrative record. § 17.320 Period of debarment. (2) The debarring official may refer (a) Debarment shall be for a period disputed material facts to another offi- commensurate with the seriousness of cial for findings of fact. The debarring the cause(s). If a suspension precedes a official may reject any such findings, debarment, the suspension period shall in whole or in part, only after specifi- be considered in determining the de- cally determining them to be arbitrary barment period. and capricious or clearly erroneous. (1) Debarment for causes other than (3) The debarring official’s decision those related to a violation of the re- shall be made after the conclusion of quirements of subpart F of this part the proceedings with respect to dis- generally should not exceed three puted facts. years. Where circumstances warrant, a (c)(1) Standard of proof. In any debar- longer period of debarment may be im- ment action, the cause for debarment posed. must be established by a preponderance (2) In the case of a debarment for a of the evidence. Where the proposed de- violation of the requirements of sub- barment is based upon a conviction or part F of this part (see 17.305(c)(5)), the civil judgment, the standard shall be period of debarment shall not exceed deemed to have been met. five years. (2) Burden of proof. The burden of proof is on the agency proposing debar- [54 FR 4963, Jan. 31, 1989] ment. (d) Notice of debarring official’s deci- § 17.325 Scope of debarment. sion. (1) If the debarring official decides (a) Scope in general. (1) Debarment of to impose debarment, the respondent a person under these regulations con- shall be given prompt notice: stitutes debarment of all its divisions (i) Referring to the notice of proposed and other organizational elements debarment; from all covered transactions, unless (ii) Specifying the reasons for debar- the debarment decision is limited by ment; its terms to one or more specifically (iii) Stating the period of debarment, identified individuals, divisions or including effective dates; and other organizational elements or to (iv) Advising that the debarment is specific types of transactions. effective for covered transactions (2) The debarment action may in- throughout the executive branch of the clude any affiliate of the participant Federal Government unless an agency that is specifically named and given head or an authorized designee makes notice of the proposed debarment and the determination referred to in an opportunity to respond (see §§ 17.311 § 17.215. through 17.314).

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(b) Imputing conduct. For purposes of (1) There exists adequate evidence of determining the scope of debarment, one or more of the causes set out in conduct may be imputed as follows: § 17.405, and (1) Conduct imputed to participant. The (2) Immediate action is necessary to fraudulent, criminal or other seriously protect the public interest. improper conduct of any officer, direc- (c) In assessing the adequacy of the tor, shareholder, partner, employee, or evidence, the agency should consider other individual associated with a par- how much information is available, ticipant may be imputed to the partici- how credible it is given the cir- pant when the conduct occurred in con- cumstances, whether or not important nection with the individual’s perform- allegations are corroborated, and what ance of duties for or on behalf of the inferences can reasonably be drawn as participant, or with the participant’s a result. This assessment should in- knowledge, approval, or acquiescence. clude an examination of basic docu- The participant’s acceptance of the ments such as grants, cooperative benefits derived from the conduct shall agreements, loan authorizations, and be evidence of such knowledge, ap- contracts. proval, or acquiescence. § 17.405 Causes for suspension. (2) Conduct imputed to individuals associated with participant. The fraudulent, (a) Suspension may be imposed in ac- criminal, or other seriously improper cordance with the provisions of §§ 17.400 conduct of a participant may be im- through 17.413 upon adequate evidence: puted to any officer, director, share- (1) To suspect the commission of an holder, partner, employee, or other in- offense listed in § 17.305(a); or dividual associated with the partici- (2) That a cause for debarment under pant who participated in, knew of, or § 17.305 may exist. had reason to know of the participant’s (b) Indictment shall constitute ade- conduct. quate evidence for purposes of suspen- (3) Conduct of one participant imputed sion actions. to other participants in a joint venture. § 17.410 Procedures. The fraudulent, criminal, or other seriously improper conduct of one partici- (a) Investigation and referral. Informa- pant in a joint venture, grant pursuant tion concerning the existence of a to a joint application, or similar ar- cause for suspension from any source rangement may be imputed to other shall be promptly reported, inves- participants if the conduct occurred for tigated, and referred, when appro- or on behalf of the joint venture, grant priate, to the suspending official for pursuant to a joint application, or consideration. After consideration, the similar arrangement may be imputed suspending official may issue a notice to other participants if the conduct oc- of suspension. curred for or on behalf of the joint ven- (b) Decisionmaking process. FEMA ture, grant pursuant to a joint applica- shall process suspension actions as in- tion, or similar arrangement or with formally as practicable, consistent the knowledge, approval, or acquies- with principles of fundamental fair- cence of these participants. Acceptance ness, using the procedures in § 17.411 of the benefits derived from the con- through § 17.413. duct shall be evidence of such knowl- § 17.411 Notice of suspension. edge, approval, or acquiescence. When a respondent is suspended, notice shall immediately be given: Subpart D—Suspension (a) That suspension has been imposed; § 17.400 General. (b) That the suspension is based on (a) The suspending official may sus- an indictment, conviction, or other pend a person for any of the causes in adequate evidence that the respondent § 17.405 using procedures established in has committed irregularities seriously §§ 17.410 through 17.413. reflecting on the propriety of further (b) Suspension is a serious action to Federal Government dealings with the be imposed only when: respondent;

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(c) Describing any such irregularities cision to modify or terminate the sus- in terms sufficient to put the respond- pension shall be without prejudice to ent on notice without disclosing the the subsequent imposition of suspen- Federal Government’s evidence; sion by any other agency or debarment (d) Of the cause(s) relied upon under by any agency. The decision shall be § 17.405 for imposing suspension; rendered in accordance with the fol- (e) That the suspension is for a tem- lowing provisions: porary period pending the completion (a) No additional proceedings necessary. of an investigation or ensuing legal, de- In actions: based on an indictment, barment, or Program Fraud Civil Rem- conviction, or civil judgment; in which edies Act proceedings; there is no genuine dispute over mate- (f) Of the provisions of § 17.411 rial facts; or in which additional pro- through § 17.413 and any other FEMA ceedings to determine disputed mate- procedures, if applicable, governing rial facts have been denied on the basis suspension decisionmaking; and of Department of Justice advice, the (g) Of the effect of the suspension. suspending official shall make a decision on the basis of all the information § 17.412 Opportunity to contest sus- in the administrative record, including pension. any submission made by the respond- (a) Submission in opposition. Within 30 ent. The decision shall be made within days after receipt of the notice of sus- 45 days after receipt of any information pension, the respondent may submit, in and argument submitted by the re- person, in writing, or through a rep- spondent, unless the suspending official resentative, information and argument extends this period for good cause. in opposition to the suspension. (b) Additional proceedings necessary. (b) Additional proceedings as to dis- (1) In actions in which additional pro- puted material facts. (1) If the sus- ceedings are necessary to determine pending official finds that the respond- disputed material facts, written find- ent’s submission in opposition raises a ings of fact shall be prepared. The sus- genuine dispute over facts material to pending official shall base the decision the suspension, respondent(s) shall be on the facts as found, together with afforded an opportunity to appear with any information and argument sub- a representative, submit documentary mitted by the respondent and any evidence, present witnesses, and con- other information in the administra- front any witness the agency presents, tive record. unless: (2) The suspending official may refer (i) The action is based on an indict- matters involving disputed material ment, conviction or civil judgment, or facts to another official for findings of (ii) A determination is made, on the fact. The suspending official may re- basis of Department of Justice advice, ject any such findings, in whole or in that the substantial interests of the part, only after specifically deter- Federal Government in pending or con- mining them to be arbitrary or capri- templated legal proceedings based on cious or clearly erroneous. the same facts as the suspension would (c) Notice of suspending official’s deci- be prejudiced. sion. Prompt written notice of the sus- (2) A transcribed record of any addi- pending official’s decision shall be sent tional proceedings shall be prepared to the respondent. and made available at cost to the respondent, upon request, unless the re- § 17.415 Period of suspension. spondent and the agency, by mutual (a) Suspension shall be for a tem- agreement, waive the requirement for a porary period pending the completion transcript. of an investigation or ensuing legal, debarment, or Program Fraud Civil Rem- § 17.413 Suspending official’s decision. edies Act proceedings, unless termi- The suspending official may modify nated sooner by the suspending official or terminate the suspension (for exam- or as provided in paragraph (b) of this ple, see § 17.320(c) for reasons for reduc- section. ing the period or scope of debarment) (b) If legal or administrative pro- or may leave it in force. However, a de- ceedings are not initiated within 12

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months after the date of the suspension clusions it has taken. Until February notice, the suspension shall be termi- 18, 1989, the agency shall also provide nated unless an Assistant Attorney GSA and OMB with information con- General or United States Attorney re- cerning all transactions in which quests its extension in writing, in FEMA has granted exceptions under which case it may be extended for an § 17.215 permitting participation by additional six months. In no event may debarred, suspended, or voluntarily ex- a suspension extend beyond 18 months, cluded persons. unless such proceedings have been ini- (b) Unless an alternative schedule is tiated within that period. agreed to by GSA, the agency shall ad- (c) The suspending official shall no- vise GSA of the information set forth tify the Department of Justice of an in § 17.500(b) and of the exceptions impending termination of a suspension, granted under § 17.215 within five work- at least 30 days before the 12-month pe- ing days after taking such actions. riod expires, to give that Department (c) The agency shall direct inquiries an opportunity to request an exten- concerning listed persons to the agency sion. that took the action. § 17.420 Scope of suspension. (d) Agency officials shall check the Nonprocurement List before entering The scope of a suspension is the same as the scope of a debarment (see covered transactions to determine § 17.325), except that the procedures of whether a participant in a primary §§ 17.410 through 17.413 shall be used in transaction is debarred, suspended, in- imposing a suspension. eligible, or voluntarily excluded (Tel. #). Subpart E—Responsibilities of GSA, (e) Agency officials shall check the Nonprocurement List before approving Agency and Participants principals or lower tier participants § 17.500 GSA responsibilities. where agency approval of the principal or lower tier participant is required (a) In accordance with the OMB under the terms of the transaction, to guidelines, GSA shall compile, main- determine whether such principals or tain, and distribute a list of all persons participants are debarred, suspended, who have been debarred, suspended, or ineligible, or voluntarily excluded. voluntarily excluded by agencies under Executive Order 12549 and these regula- § 17.510 Participants’ responsibilities. tions, and those who have been determined to be ineligible. (a) Certification by participants in pri- (b) At a minimum, this list shall in- mary covered transactions. Each partici- dicate: pant shall submit the certification in (1) The names and addresses of all appendix A to this part for it and its debarred, suspended, ineligible, and principals at the time the participant voluntarily excluded persons, in alpha- submits its proposal in connection with betical order, with cross-references a primary covered transaction, except when more than one name is involved that States need only complete such in a single action; certification as to their principals. (2) The type of action; Participants may decide the method (3) The cause for the action; and frequency by which they determine (4) The scope of the action; the eligibility of their principals. In (5) Any termination date for each addition, each participant may, but is listing; and not required to, check the Nonprocure- (6) The agency and name and tele- ment List for its principals (Tel. #). phone number of the agency point of Adverse information on the certifi- contact for the action. cation will not necessarily result in denial of participation. However, the cer- § 17.505 FEMA responsibilities. tification, and any additional informa- (a) The agency shall provide GSA tion pertaining to the certification with current information concerning submitted by the participant, shall be debarments, suspension, determina- considered in the administration of tions of ineligibility, and voluntary ex- covered transactions.

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(b) Certification by participants in contractors with the agency are found lower tier covered transactions. (1) Each at 48 CFR subparts 9.4, 23.5, and 52.2. participant shall require participants in lower tier covered transactions to § 17.605 Definitions. include the certification in Appendix B (a) Except as amended in this sec- to this part for it and its principals in tion, the definitions of § 17.105 apply to any proposal submitted in connection this subpart. with such lower tier covered transactions. (b) For purposes of this subpart— (2) A participant may rely upon the (1) Controlled substance means a con- certification of a prospective partici- trolled substance in schedules I pant in a lower tier covered trans- through V of the Controlled Substances action that it and its principals are not Act (21 U.S.C. 812), and as further de- debarred, suspended, ineligible, or vol- fined by regulation at 21 CFR 1308.11 untarily excluded from the covered through 1308.15; transaction by any Federal agency, un- (2) Conviction means a finding of guilt less it knows that the certification is (including a plea of nolo contendere) or erroneous. Participants may decide the imposition of sentence, or both, by any method and frequency by which they judicial body charged with the respon- determine the eligiblity of their prin- sibility to determine violations of the cipals. In addition, a participant may, Federal or State criminal drug stat- but is not required to, check the Non- utes; procurement List for its principals and (3) Criminal drug statute means a Fed- for participants (Tel. #). (c) Changed circumstances regarding eral or non-Federal criminal statute certification. A participant shall provide involving the manufacture, distribu- immediate written notice to FEMA if tion, dispensing, use, or possession of at any time the participant learns that any controlled substance; its certification was erroneous when (4) Drug-free workplace means a site submitted or has become erroneous by for the performance of work done in reason of changed circumstances. Par- connection with a specific grant at ticipants in lower tier covered trans- which employees of the grantee are actions shall provide the same updated prohibited from engaging in the unlaw- notice to the participant to which it ful manufacture, distribution, dis- submitted its proposals. pensing, possession, or use of a controlled substance; Subpart F—Drug-Free Workplace (5) Employee means the employee of a Requirements (Grants) grantee directly engaged in the performance of work under the grant, in- SOURCE: 55 FR 21702, May 25, 1990, unless cluding: otherwise noted. (i) All ‘‘direct charge’’ employees; (ii) All ‘‘indirect charge’’ employees, § 17.600 Purpose. unless their impact or involvement is (a) The purpose of this subpart is to insignificant to the performance of the carry out the Drug-Free Workplace Act grant; and, of 1988 by requiring that— (iii) Temporary personnel and con- (1) A grantee, other than an indi- sultants who are directly engaged in vidual, shall certify to the agency that the performance of work under the it will provide a drug-free workplace; grant and who are on the grantee’s (2) A grantee who is an individual payroll. shall certify to the agency that, as a condition of the grant, he or she will This definition does not include work- not engage in the unlawful manufac- ers not on the payroll of the grantee ture, distribution, dispensing, posses- (e.g., volunteers, even if used to meet a sion or use of a controlled substance in matching requirement; consultants or conducting any activity with the independent contractors not on the grant. payroll; or employees of subrecipients (b) Requirements implementing the or subcontractors in covered work- Drug-Free Workplace Act of 1988 for places);

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(6) Federal agency or agency means foreign government. A determination any United States executive depart- of such inconsistency may be made ment, military department, govern- only by the agency head or his/her des- ment corporation, government con- ignee. trolled corporation, any other estab- (c) The provisions of subparts A, B, C, lishment in the executive branch (in- D and E of this part apply to matters cluding the Executive Office of the covered by this subpart, except where President), or any independent regu- specifically modified by this subpart. latory agency; In the event of any conflict between (7) Grant means an award of financial provisions of this subpart and other assistance, including a cooperative provisions of this part, the provisions agreement, in the form of money, or of this subpart are deemed to control property in lieu of money, by a Federal with respect to the implementation of agency directly to a grantee. The term drug-free workplace requirements con- grant includes block grant and entitle- cerning grants. ment grant programs, whether or not exempted from coverage under the § 17.615 Grounds for suspension of grants management government-wide payments, suspension or termi- common rule on uniform administra- nation of grants, or suspension or tive requirements for grants and coop- debarment. erative agreements. The term does not A grantee shall be deemed in viola- include technical assistance that pro- tion of the requirements of this sub- vides services instead of money, or part if the agency head or his or her of- other assistance in the form of loans, ficial designee determines, in writing, loan guarantees, interest subsidies, in- that— surance, or direct appropriations; or (a) The grantee has made a false cer- any veterans’ benefits to individuals, tification under § 17.630; i.e., any benefit to veterans, their fami- (b) With respect to a grantee other lies, or survivors by virtue of the serv- than an individual— ice of a veteran in the Armed Forces of (1) The grantee has violated the cer- the United States; tification by failing to carry out the (8) Grantee means a person who ap- requirements of subparagraphs (A.) (a)– plies for or receives a grant directly (g) and/or (B.) of the certification (Al- from a Federal agency (except another ternate I to appendix C) or Federal agency); (2) Such a number of employees of (9) Individual means a natural person; the grantee have been convicted of vio- (10) State means any of the States of lations of criminal drug statutes for the United States, the District of Co- violations occurring in the workplace lumbia, the Commonwealth of Puerto as to indicate that the grantee has Rico, any territory or possession of the failed to make a good faith effort to United States, or any agency of a provide a drug-free workplace. State, exclusive of institutions of higher education, hospitals, and units of (c) With respect to a grantee who is local government. A State instrumen- an individual— tality will be considered part of the (1) The grantee has violated the cer- State government if it has a written tification by failing to carry out its re- determination from a State govern- quirements (Alternate II to appendix ment that such State considers the in- C); or strumentality to be an agency of the (2) The grantee is convicted of a State government. criminal drug offense resulting from a violation occurring during the conduct § 17.610 Coverage. of any grant activity. (a) This subpart applies to any grantee of the agency. § 17.620 Effect of violation. (b) This subpart applies to any grant, (a) In the event of a violation of this except where application of this sub- subpart as provided in § 17.615, and in part would be inconsistent with the accordance with applicable law, the international obligations of the United grantee shall be subject to one or more States or the laws or regulations of a of the following actions:

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(1) Suspension of payments under the tification for Fiscal Year 1990 until grant; June 30, 1990. Except as provided in (2) Suspension or termination of the paragraph (d) of this section, this cer- grant; and tification shall cover all grants to all (3) Suspension or debarment of the State agencies from any Federal agen- grantee under the provisions of this cy. The State shall retain the original part. of this statewide certification in its (b) Upon issuance of any final deci- Governor’s office and, prior to grant sion under this part requiring debar- award, shall ensure that a copy is sub- ment of a grantee, the debarred grant- mitted individually with respect to ee shall be ineligible for award of any each grant, unless the Federal agency grant from any Federal agency for a has designated a central location for period specified in the decision, not to submission. exceed five years (see § 17.320(a)(2) of (d)(1) The Governor of a State may this part). exclude certain State agencies from the statewide certification and author- § 17.625 Exception provision. ize these agencies to submit their own The agency head may waive with re- certifications to Federal agencies. The spect to a particular grant, in writing, statewide certification shall name any a suspension of payments under a State agencies so excluded. grant, suspension or termination of a (2) A State agency to which the grant, or suspension or debarment of a statewide certification does not apply, grantee if the agency head determines or a State agency in a State that does that such a waiver would be in the pub- not have a statewide certification, may lic interest. This exception authority elect to make one certification in each cannot be delegated to any other offi- Federal fiscal year. State agencies that cial. previously submitted a State agency certification are not required to make § 17.630 Certification requirements a certification for Fiscal Year 1990 and procedures. until June 30, 1990. The State agency (a)(1) As a prior condition of being shall retain the original of this State awarded a grant, each grantee shall agency-wide certification in its central make the appropriate certification to office and, prior to grant award, shall the Federal agency providing the ensure that a copy is submitted indi- grant, as provided in appendix C to this vidually with respect to each grant, part. unless the Federal agency designates a (2) Grantees are not required to make central location for submission. a certification in order to continue re- (3) When the work of a grant is done ceiving funds under a grant awarded by more than one State agency, the before March 18, 1989, or under a no- certification of the State agency di- cost time extension of such a grant. rectly receiving the grant shall be However, the grantee shall make a one- deemed to certify compliance for all time drug-free workplace certification workplaces, including those located in for a non-automatic continuation of other State agencies. such a grant made on or after March (e)(1) For a grant of less than 30 days 18, 1989. performance duration, grantees shall (b) Except as provided in this section, have this policy statement and pro- all grantees shall make the required gram in place as soon as possible, but certification for each grant. For man- in any case by a date prior to the date datory formula grants and entitle- on which performance is expected to be ments that have no application proc- completed. ess, grantees shall submit a one-time (2) For a grant of 30 days or more per- certification in order to continue re- formance duration, grantees shall have ceiving awards. this policy statement and program in (c) A grantee that is a State may place within 30 days after award. elect to make one certification in each (3) Where extraordinary cir- Federal fiscal year. States that pre- cumstances warrant for a specific viously submitted an annual certifi- grant, the grant officer may determine cation are not required to make a cer- a different date on which the policy

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statement and program shall be in APPENDIX A TO PART 17—CERTIFICATION place. REGARDING DEBARMENT, SUSPEN- SION, AND OTHER RESPONSIBILITY § 17.635 Reporting of and employee MATTERS—PRIMARY COVERED sanctions for convictions of crimi- TRANSACTIONS nal drug offenses. INSTRUCTIONS FOR CERTIFICATION (a) When a grantee other than an individual is notified that an employee 1. By signing and submitting this proposal, has been convicted for a violation of a the prospective primary participant is providing the certification set out below. criminal drug statute occurring in the 2. The inability of a person to provide the workplace, it shall take the following certification required below will not nec- actions: essarily result in denial of participation in (1) Within 10 calendar days of receiv- this covered transaction. The prospective ing notice of the conviction, the grant- participant shall submit an explanation of why it cannot provide the certification set ee shall provide written notice, includ- out below. The certification or explanation ing the convicted employee’s position will be considered in connection with the de- title, to every grant officer, or other partment or agency’s determination whether designee on whose grant activity the to enter into this transaction. However, fail- convicted employee was working, un- ure of the prospective primary participant to less a Federal agency has designated a furnish a certification or an explanation shall disqualify such person from participa- central point for the receipt of such no- tion in this transaction. tifications. Notification shall include 3. The certification in this clause is a ma- the identification number(s) for each of terial representation of fact upon which reli- the Federal agency’s affected grants. ance was placed when the department or (2) Within 30 calendar days of receiv- agency determined to enter into this transaction. If it is later determined that the pro- ing notice of the conviction, the grant- spective primary participant knowingly ren- ee shall do the following with respect dered an erroneous certification, in addition to the employee who was convicted. to other remedies available to the Federal (i) Take appropriate personnel action Government, the department or agency may against the employee, up to and includ- terminate this transaction for cause or de- ing termination, consistent with re- fault. 4. The prospective primary participant quirements of the Rehabilitation Act shall provide immediate written notice to of 1973, as amended; or the department or agency to which this pro- (ii) Require the employee to partici- posal is submitted if at any time the pro- pate satisfactorily in a drug abuse as- spective primary participant learns that its sistance or rehabilitation program ap- certification was erroneous when submitted or has become erroneous by reason of proved for such purposes by a Federal, changed circumstances. State, or local health, law enforce- 5. The terms covered transaction, debarred, ment, or other appropriate agency. suspended, ineligible, lower tier covered trans- (b) A grantee who is an individual action, participant, person, primary covered who is convicted for a violation of a transaction, principal, proposal, and volun- criminal drug statute occurring during tarily excluded, as used in this clause, have the meanings set out in the Definitions and the conduct of any grant activity shall Coverage sections of the rules implementing report the conviction, in writing, with- Executive Order 12549. You may contact the in 10 calendar days, to his or her Fed- department or agency to which this proposal eral agency grant officer, or other des- is being submitted for assistance in obtain- ignee, unless the Federal agency has ing a copy of those regulations. designated a central point for the re- 6. The prospective primary participant agrees by submitting this proposal that, ceipt of such notices. Notification shall should the proposed covered transaction be include the identification number(s) entered into, it shall not knowingly enter for each of the Federal agency’s af- into any lower tier covered transaction with fected grants. a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, (Approved by the Office of Management and suspended, declared ineligible, or voluntarily Budget under control number 0991–0002.) excluded from participation in this covered

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transaction, unless authorized by the depart- State or local) transaction or contract under ment or agency entering into this trans- a public transaction; violation of Federal or action. State antitrust statutes or commission of 7. The prospective primary participant fur- embezzlement, theft, forgery, bribery, fal- ther agrees by submitting this proposal that sification or destruction of records, making it will include the clause titled ‘‘Certifi- false statements, or receiving stolen prop- cation Regarding Debarment, Suspension, erty; Ineligibility and Voluntary Exclusion-Lower (c) Are not presently indicted for or other- Tier Covered Transaction,’’ provided by the wise criminally or civilly charged by a gov- department or agency entering into this cov- ernmental entity (Federal, State or local) ered transaction, without modification, in with commission of any of the offenses enu- all lower tier covered transactions and in all merated in paragraph (1)(b) of this certifi- solicitations for lower tier covered trans- cation; and actions. (d) Have not within a three-year period 8. A participant in a covered transaction preceding this application/proposal had one may rely upon a certification of a prospec- or more public transactions (Federal, State tive participant in a lower tier covered or local) terminated for cause or default. transaction that it is not proposed for debar- (2) Where the prospective primary partici- ment under 48 CFR part 9, subpart 9.4, pant is unable to certify to any of the state- debarred, suspended, ineligible, or volun- ments in this certification, such prospective tarily excluded from the covered trans- participant shall attach an explanation to action, unless it knows that the certification this proposal. is erroneous. A participant may decide the [60 FR 33042, 33061, June 26, 1995] method and frequency by which it determines the eligibility of its principals. Each APPENDIX B TO PART 17—CERTIFICATION participant may, but is not required to, check the List of Parties Excluded from Fed- REGARDING DEBARMENT, SUSPEN- eral Procurement and Nonprocurement Pro- SION, INELIGIBILITY AND VOLUNTARY grams. EXCLUSION—LOWER TIER COVERED 9. Nothing contained in the foregoing shall TRANSACTIONS be construed to require establishment of a system of records in order to render in good INSTRUCTIONS FOR CERTIFICATION faith the certification required by this 1. By signing and submitting this proposal, clause. The knowledge and information of a the prospective lower tier participant is pro- participant is not required to exceed that viding the certification set out below. which is normally possessed by a prudent 2. The certification in this clause is a ma- person in the ordinary course of business terial representation of fact upon which reli- dealings. ance was placed when this transaction was 10. Except for transactions authorized entered into. If it is later determined that under paragraph 6 of these instructions, if a the prospective lower tier participant know- participant in a covered transaction knowingly rendered an erroneous certification, in ingly enters into a lower tier covered trans- addition to other remedies available to the action with a person who is proposed for de- Federal Government the department or barment under 48 CFR part 9, subpart 9.4, agency with which this transaction origi- suspended, debarred, ineligible, or volun- nated may pursue available remedies, includ- tarily excluded from participation in this ing suspension and/or debarment. transaction, in addition to other remedies 3. The prospective lower tier participant available to the Federal Government, the de- shall provide immediate written notice to partment or agency may terminate this the person to which this proposal is sub- transaction for cause or default. mitted if at any time the prospective lower tier participant learns that its certification CERTIFICATION REGARDING DEBARMENT, SUS- was erroneous when submitted or had be- PENSION, AND OTHER RESPONSIBILITY MAT- come erroneous by reason of changed cir- TERS—PRIMARY COVERED TRANSACTIONS cumstances. (1) The prospective primary participant 4. The terms covered transaction, debarred, certifies to the best of its knowledge and be- suspended, ineligible, lower tier covered trans- lief, that it and its principals: action, participant, person, primary covered (a) Are not presently debarred, suspended, transaction, principal, proposal, and volun- proposed for debarment, declared ineligible, tarily excluded, as used in this clause, have or voluntarily excluded by any Federal de- the meaning set out in the Definitions and partment or agency; Coverage sections of rules implementing Ex- (b) Have not within a three-year period ecutive Order 12549. You may contact the preceding this proposal been convicted of or person to which this proposal is submitted had a civil judgment rendered against them for assistance in obtaining a copy of those for commission of fraud or a criminal offense regulations. in connection with obtaining, attempting to 5. The prospective lower tier participant obtain, or performing a public (Federal, agrees by submitting this proposal that,

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should the proposed covered transaction be (2) Where the prospective lower tier partic- entered into, it shall not knowingly enter ipant is unable to certify to any of the state- into any lower tier covered transaction with ments in this certification, such prospective a person who is proposed for debarment participant shall attach an explanation to under 48 CFR part 9, subpart 9.4, debarred, this proposal. suspended, declared ineligible, or voluntarily [60 FR 33042, 33061, June 26, 1995] excluded from participation in this covered transaction, unless authorized by the depart- APPENDIX C TO PART 17—CERTIFICATION ment or agency with which this transaction REGARDING DRUG-FREE WORKPLACE originated. 6. The prospective lower tier participant REQUIREMENTS further agrees by submitting this proposal INSTRUCTIONS FOR CERTIFICATION that it will include this clause titled ‘‘Cer- tification Regarding Debarment, Suspension, 1. By signing and/or submitting this appli- Ineligibility and Voluntary Exclusion-Lower cation or grant agreement, the grantee is Tier Covered Transaction,’’ without modi- providing the certification set out below. fication, in all lower tier covered trans- 2. The certification set out below is a ma- actions and in all solicitations for lower tier terial representation of fact upon which reli- covered transactions. ance is placed when the agency awards the 7. A participant in a covered transaction grant. If it is later determined that the may rely upon a certification of a prospec- grantee knowingly rendered a false certifi- tive participant in a lower tier covered cation, or otherwise violates the require- transaction that it is not proposed for debarments of the Drug-Free Workplace Act, the ment under 48 CFR part 9, subpart 9.4, agency, in addition to any other remedies debarred, suspended, ineligible, or volun- available to the Federal Government, may tarily excluded from covered transactions, take action authorized under the Drug-Free unless it knows that the certification is erro- Workplace Act. neous. A participant may decide the method 3. For grantees other than individuals, Al- ternate I applies. and frequency by which it determines the 4. For grantees who are individuals, Alter- eligibility of its principals. Each participant nate II applies. may, but is not required to, check the List of 5. Workplaces under grants, for grantees Parties Excluded from Federal Procurement other than individuals, need not be identified and Nonprocurement Programs. on the certification. If known, they may be 8. Nothing contained in the foregoing shall identified in the grant application. If the be construed to require establishment of a grantee does not identify the workplaces at system of records in order to render in good the time of application, or upon award, if faith the certification required by this there is no application, the grantee must clause. The knowledge and information of a keep the identity of the workplace(s) on file participant is not required to exceed that in its office and make the information avail- which is normally possessed by a prudent able for Federal inspection. Failure to iden- person in the ordinary course of business tify all known workplaces constitutes a vio- dealings. lation of the grantee’s drug-free workplace 9. Except for transactions authorized under requirements. paragraph 5 of these instructions, if a partic- 6. Workplace identifications must include ipant in a covered transaction knowingly en- the actual address of buildings (or parts of ters into a lower tier covered transaction buildings) or other sites where work under with a person who is proposed for debarment the grant takes place. Categorical descrip- under 48 CFR part 9, subpart 9.4, suspended, tions may be used (e.g., all vehicles of a mass debarred, ineligible, or voluntarily excluded transit authority or State highway depart- from participation in this transaction, in ad- ment while in operation, State employees in dition to other remedies available to the each local unemployment office, performers Federal Government, the department or in concert halls or radio studios). agency with which this transaction origi- 7. If the workplace identified to the agency nated may pursue available remedies, includ- changes during the performance of the grant, ing suspension and/or debarment. the grantee shall inform the agency of the change(s), if it previously identified the Certification Regarding Debarment, Suspension, workplaces in question (see paragraph five). Ineligibility an Voluntary Exclusion—Lower 8. Definitions of terms in the Nonprocure- Tier Covered Transactions ment Suspension and Debarment common (1) The prospective lower tier participant rule and Drug-Free Workplace common rule certifies, by submission of this proposal, that apply to this certification. Grantees’ atten- neither it nor its principals is presently tion is called, in particular, to the following debarred, suspended, proposed for debarment, definitions from these rules: declared ineligible, or voluntarily excluded Controlled substance means a controlled from participation in this transaction by any substance in Schedules I through V of the Federal department or agency. Controlled Substances Act (21 U.S.C. 812) and

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as further defined by regulation (21 CFR (2) Notify the employer in writing of his or 1308.11 through 1308.15); her conviction for a violation of a criminal Conviction means a finding of guilt (includ- drug statute occurring in the workplace no ing a plea of nolo contendere) or imposition later than five calendar days after such con- of sentence, or both, by any judicial body viction; charged with the responsibility to determine (e) Notifying the agency in writing, within violations of the Federal or State criminal ten calendar days after receiving notice drug statutes; under subparagraph (d)(2) from an employee Criminal drug statute means a Federal or or otherwise receiving actual notice of such non-Federal criminal statute involving the conviction. Employers of convicted employ- manufacture, distribution, dispensing, use, ees must provide notice, including position or possession of any controlled substance; title, to every grant officer or other designee Employee means the employee of a grantee on whose grant activity the convicted em- directly engaged in the performance of work ployee was working, unless the Federal agen- under a grant, including: (i) All ‘‘direct cy has designated a central point for the recharge’’ employees; (ii) all ‘‘indirect charge’’ ceipt of such notices. Notice shall include employees unless their impact or involve- the identification number(s) of each affected ment is insignificant to the performance of grant; the grant; and, (iii) temporary personnel and (f) Taking one of the following actions, consultants who are directly engaged in the within 30 calendar days of receiving notice performance of work under the grant and under subparagraph (d)(2), with respect to who are on the grantee’s payroll. This defini- any employee who is so convicted— tion does not include workers not on the (1) Taking appropriate personnel action payroll of the grantee (e.g., volunteers, even against such an employee, up to and includ- if used to meet a matching requirement; con- ing termination, consistent with the require- sultants or independent contractors not on ments of the Rehabilitation Act of 1973, as the grantee’s payroll; or employees of sub- amended; or recipients or subcontractors in covered (2) Requiring such employee to participate workplaces). satisfactorily in a drug abuse assistance or rehabilitation program approved for such CERTIFICATION REQARDINQ DRUQ-FREE purposes by a Federal, State, or local health, WORKPLACE REQUIREMENTS law enforcement, or other appropriate agency; Alternate I. (Grantees Other Than Individuals) (g) Making a good faith effort to continue A. The grantee certifies that it will or will to maintain a drug-free workplace through continue to provide a drug-free workplace implementation of paragraphs (a), (b), (c), by: (d), (e) and (f). (a) Publishing a statement notifying em- B. The grantee may insert in the space pro- ployees that the unlawful manufacture, dis- vided below the site(s) for the performance of tribution, dispensing, possession, or use of a work done in connection with the specific controlled substance is prohibited in the grant: grantee’s workplace and specifying the ac- Place of Performance (Street address, city, tions that will be taken against employees county, state, zip code) for violation of such prohibition; (b) Establishing an ongoing drug-free llllllllllllllllllllllll awareness program to inform employees llllllllllllllllllllllll about— llllllllllllllllllllllll (1) The dangers of drug abuse in the workplace; Check b if there are workplaces on file that (2) The grantee’s policy of maintaining a are not identified here. drug-free workplace; ALTERNATE II. (GRANTEES WHO ARE (3) Any available drug counseling, rehabili- INDIVIDUALS) tation, and employee assistance programs; and (a) The grantee certifies that, as a condi- (4) The penalties that may be imposed tion of the grant, he or she will not engage upon employees for drug abuse violations oc- in the unlawful manufacture, distribution, curring in the workplace; dispensing, possession, or use of a controlled (c) Making it a requirement that each em- substance in conducting any activity with ployee to be engaged in the performance of the grant; the grant be given a copy of the statement (b) If convicted of a criminal drug offense required by paragraph (a); resulting from a violation occurring during (d) Notifying the employee in the state- the conduct of any grant activity, he or she ment required by paragraph (a) that, as a will report the conviction, in writing, within condition of employment under the grant, 10 calendar days of the conviction, to every the employee will— grant officer or other designee, unless the (1) Abide by the terms of the statement; Federal agency designates a central point for and the receipt of such notices. When notice is

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made to such a central point, it shall include officer or employee of any agency, a the identification number(s) of each affected Member of Congress, an officer or em- grant. ployee of Congress, or an employee of a [55 FR 21702, May 25, 1990] Member of Congress in connection with any of the following covered Federal PART 18—NEW RESTRICTIONS ON actions: the awarding of any Federal LOBBYING contract, the making of any Federal grant, the making of any Federal loan, Subpart A—General the entering into of any cooperative agreement, and the extension, continu- Sec. ation, renewal, amendment, or modi- 18.100 Conditions on use of funds. fication of any Federal contract, grant, 18.105 Definitions. 18.110 Certification and disclosure. loan, or cooperative agreement. (b) Each person who requests or re- Subpart B—Activities by Own Employees ceives from an agency a Federal contract, grant, loan, or cooperative 18.200 Agency and legislative liaison. agreement shall file with that agency a 18.205 Professional and technical services. 18.210 Reporting. certification, set forth in appendix A, that the person has not made, and will Subpart C—Activities by Other Than Own not make, any payment prohibited by Employees paragraph (a) of this section. (c) Each person who requests or re- 18.300 Professional and technical services. ceives from an agency a Federal con- Subpart D—Penalties and Enforcement tract, grant, loan, or a cooperative agreement shall file with that agency a 18.400 Penalties. disclosure form, set forth in appendix 18.405 Penalty procedures. B, if such person has made or has 18.410 Enforcement. agreed to make any payment using Subpart E—Exemptions nonappropriated funds (to include profits from any covered Federal action), 18.500 Secretary of Defense. which would be prohibited under paragraph (a) of this section if paid for with Subpart F—Agency Reports appropriated funds. 18.600 Semi-annual compilation. (d) Each person who requests or re- 18.605 Inspector General report. ceives from an agency a commitment APPENDIX A TO PART 18—CERTIFICATION RE- providing for the United States to in- GARDING LOBBYING sure or guarantee a loan shall file with APPENDIX B TO PART 18—DISCLOSURE FORM that agency a statement, set forth in TO REPORT LOBBYING appendix A, whether that person has AUTHORITY: Section 319, Public Law 101–121 made or has agreed to make any pay- (31 U.S.C. 1352); 5 U.S.C. 551, 552, 553; 5 U.S.C. ment to influence or attempt to influ- 601, et seq.; E.O. 12291. Reorganization Plan ence an officer or employee of any No. 3 of 1978, E.O. 12127, E.O. 12148, E.O. 12657, agency, a Member of Congress, an offi- E.O. 12699. cer or employee of Congress, or an em- SOURCE: 55 FR 6737 and 6754, Feb. 26, 1990, ployee of a Member of Congress in con- unless otherwise noted. nection with that loan insurance or CROSS REFERENCE: See also Office of Man- guarantee. agement and Budget notice published at 54 (e) Each person who requests or re- FR 52306, December 20, 1989. ceives from an agency a commitment providing for the United States to in- Subpart A—General sure or guarantee a loan shall file with that agency a disclosure form, set forth § 18.100 Conditions on use of funds. in appendix B, if that person has made (a) No appropriated funds may be ex- or has agreed to make any payment to pended by the recipient of a Federal influence or attempt to influence an of- contract, grant, loan, or cooperative ficer or employee of any agency, a ageement to pay any person for influ- Member of Congress, an officer or em- encing or attempting to influence an ployee of Congress, or an employee of a

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Member of Congress in connection with Education Assistance Act (25 U.S.C. that loan insurance or guarantee. 450B). Alaskan Natives are included under the definitions of Indian tribes in § 18.105 Definitions. that Act. For purposes of this part: (h) Influencing or attempting to influ- (a) Agency, as defined in 5 U.S.C. ence means making, with the intent to 552(f), includes Federal executive de- influence, any communication to or ap- partments and agencies as well as inde- pearance before an officer or employee pendent regulatory commissions and or any agency, a Member of Congress, Government corporations, as defined in an officer or employee of Congress, or 31 U.S.C. 9101(1). an employee of a Member of Congress (b) Covered Federal action means any in connection with any covered Federal of the following Federal actions: action. (1) The awarding of any Federal con- (i) Loan guarantee and loan insurance tract; means an agency’s guarantee or insur- (2) The making of any Federal grant; ance of a loan made by a person. (3) The making of any Federal loan; (j) Local government means a unit of (4) The entering into of any coopera- government in a State and, if char- tive agreement; and, tered, established, or otherwise recog- (5) The extension, continuation, re- nized by a State for the performance of newal, amendment, or modification of a governmental duty, including a local any Federal contract, grant, loan, or public authority, a special district, an cooperative agreement. intrastate district, a council of govern- Covered Federal action does not in- ments, a sponsor group representative clude receiving from an agency a com- organization, and any other instrumen- mitment providing for the United tality of a local government. States to insure or guarantee a loan. (k) Officer or employee of an agency in- Loan guarantees and loan insurance cludes the following individuals who are addressed independently within are employed by an agency: this part. (1) An individual who is appointed to (c) Federal contract means an acquisi- a position in the Government under tion contract awarded by an agency, title 5, U.S. Code, including a position including those subject to the Federal under a temporary appointment; Acquisition Regulation (FAR), and any (2) A member of the uniformed serv- other acquisition contract for real or ices as defined in section 101(3), title 37, personal property or services not sub- U.S. Code; ject to the FAR. (3) A special Government employee (d) Federal cooperative agreement as defined in section 202, title 18, U.S. means a cooperative agreement en- Code; and, tered into by an agency. (4) An individual who is a member of (e) Federal grant means an award of a Federal advisory committee, as de- financial assistance in the form of fined by the Federal Advisory Com- money, or property in lieu of money, mittee Act, title 5, U.S. Code appendix by the Federal Government or a direct 2. appropriation made by law to any per- (l) Person means an individual, cor- son. The term does not include tech- poration, company, association, au- nical assistance which provides serv- thority, firm, partnership, society, ices instead of money, or other assist- State, and local government, regard- ance in the form of revenue sharing, less of whether such entity is operated loans, loan guarantees, loan insurance, for profit or not for profit. This term interest subsidies, insurance, or direct excludes an Indian tribe, tribal organi- United States cash assistance to an in- zation, or any other Indian organiza- dividual. tion with respect to expenditures spe- (f) Federal loan means a loan made by cifically permitted by other Federal an agency. The term does not include law. loan guarantee or loan insurance. (m) Reasonable compensation means, (g) Indian tribe and tribal organization with respect to a regularly employed have the meaning provided in section 4 officer or employee of any person, com- of the Indian Self-Determination and pensation that is consistent with the

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normal compensation for such officer tiates agency consideration of such or employee for work that is not fur- person for: nished to, not funded by, or not fur- (1) Award of a Federal contract, nished in cooperation with the Federal grant, or cooperative agreement ex- Government. ceeding $100,000; or (n) Reasonable payment means, with (2) An award of a Federal loan or a respect to perfessional and other tech- commitment providing for the United nical services, a payment in an amount States to insure or guarantee a loan that is consistent with the amount nor- exceeding $150,000. mally paid for such services in the pri- (b) Each person shall file a certifi- vate sector. cation, and a disclosure form, if re- (o) Recipient includes all contractors, quired, upon receipt by such person of: subcontractors at any tier, and sub- (1) A Federal contract, grant, or co- grantees at any tier of the recipient of operative agreement exceeding $100,000; funds received in connection with a or Federal contract, grant, loan, or coop- (2) A Federal loan or a commitment erative agreement. The term excludes providing for the United States to in- an Indian tribe, tribal organization, or sure or guarantee a loan exceeding any other Indian organization with re- $150,000, unless such person previously spect to expenditures specifically per- filed a certification, and a disclosure mitted by other Federal law. form, if required, under paragraph (a) of this section. (p) Regularly employed means, with (c) Each person shall file a disclosure respect to an officer or employee of a form at the end of each calendar quar- person requesting or receiving a Fed- ter in which there occurs any event eral contract, grant, loan, or coopera- that requires disclosure or that materi- tive agreement or a commitment pro- ally affects the accuracy of the infor- viding for the United States to insure mation contained in any disclosure or guarantee a loan, an officer or em- form previously filed by such person ployee who is employed by such person under paragraphs (a) or (b) of this sec- for at least 130 working days within tion. An event that materially affects one year immediately preceding the the accuracy of the information re- date of the submission that initiates ported includes: agency consideration of such person for (1) A cumulative increase of $25,000 or receipt of such contract, grant, loan, more in the amount paid or expected to cooperative agreement, loan insurance be paid for influencing or attempting commitment, or loan guarantee com- to influence a covered Federal action; mitment. An officer or employee who is or employed by such person for less than (2) A change in the person(s) or indi- 130 working days within one year im- vidual(s) influencing or attempting to mediately preceding the date of the influence a covered Federal action; or, submission that initiates agency con- (3) A change in the officer(s), em- sideration of such person shall be con- ployee(s), or Member(s) contacted to sidered to be regularly employed as influence or attempt to influence a soon as he or she is employed by such covered Federal action. person for 130 working days. (d) Any person who requests or re- (q) State means a State of the United ceives from a person referred to in States, the District of Columbia, the paragraphs (a) or (b) of this section: Commonwealth of Puerto Rico, a terri- (1) A subcontract exceeding $100,000 tory or possession of the United States, at any tier under a Federal contract; an agency or instrumentality of a (2) A subgrant, contract, or sub- State, and a multi-State, regional, or contract exceeding $100,000 at any tier interstate entity having governmental under a Federal grant; duties and powers. (3) A contract or subcontract exceeding $100,000 at any tier under a Federal § 18.110 Certification and disclosure. loan exceeding $150,000; or, (a) Each person shall file a certifi- (4) A contract or subcontract exceed- cation, and a disclosure form, if re- ing $100,000 at any tier under a Federal quired, with each submission that ini- cooperative agreement,

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shall file a certification, and a disclo- lative liaison activities not directly re- sure form, if required, to the next tier lated to a covered Federal action. above. (b) For purposes of paragraph (a) of (e) All disclosure forms, but not cer- this section, providing any information tifications, shall be forwarded from specifically requested by an agency or tier to tier until received by the person Congress is allowable at any time. referred to in paragraphs (a) or (b) of (c) For purposes of paragraph (a) of this section. That person shall forward this section, the following agency and all disclosure forms to the agency. legislative liaison activities are allow- (f) Any certification or disclosure able at any time only where they are form filed under paragraph (e) of this not related to a specific solicitation for section shall be treated as a material representation of fact upon which all any covered Federal action: receiving tiers shall rely. All liability (1) Discussing with an agency (in- arising from an erroneous representa- cluding individual demonstrations) the tion shall be borne solely by the tier qualities and characteristics of the per- filing that representation and shall not son’s products or services, conditions be shared by any tier to which the er- or terms of sale, and service capabili- roneous representation is forwarded. ties; and, Submitting an erroneous certification (2) Technical discussions and other or disclosure constitutes a failure to activities regarding the application or file the required certification or disclo- adaptation of the person’s products or sure, respectively. If a person fails to services for an agency’s use. file a required certification or disclo- (d) For purposes of paragraph (a) of sure, the United States may pursue all this section, the following agencies and available remedies, including those au- legislative liaison activities are allow- thorized by section 1352, title 31, U.S. able only where they are prior to for- Code. mal solicitation of any covered Federal (g) For awards and commitments in action: process prior to December 23, 1989, but (1) Providing any information not not made before that date, certifi- specifically requested but necessary for cations shall be required at award or an agency to make an informed deci- commitment, covering activities oc- sion about initiation of a covered Fed- curring between December 23, 1989, and eral action; the date of award or commitment. However, for awards and commitments (2) Technical discussions regarding in process prior to the December 23, the preparation of an unsolicited pro- 1989 effective date of these provisions, posal prior to its official submission; but not made before December 23, 1989, and, disclosure forms shall not be required (3) Capability presentations by per- at time of award or commitment but sons seeking awards from an agency shall be filed within 30 days. pursuant to the provisions of the Small (h) No reporting is required for an ac- Business Act, as amended by Public tivity paid for with appropriated funds Law 95–507 and other subsequent if that activity is allowable under ei- amendments. ther subpart B or C. (e) Only those activities expressly authorized by this section are allowable Subpart B—Activities by Own under this section. Employees § 18.205 Professional and technical § 18.200 Agency and legislative liaison. services. (a) The prohibition on the use of ap- (a) The prohibition on the use of appropriated funds, in § 18.100 (a), does propriated funds, in § 18.100 (a), does not apply in the case of a payment of not apply in the case of a payment of reasonable compensation made to an reasonable compensation made to an officer or employee of a person request- officer or employee of a person requesting or receiving a Federal contract, ing or receiving a Federal contract, grant, loan, or cooperative agreement grant, loan, or cooperative agreement if the payment is for agency and legis- or an extension, continuation, renewal,

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amendment, or modification of a Fed- ing a covered Federal award include eral contract, grant, loan, or coopera- those required by law or regulation, or tive agreement if payment is for pro- reasonably expected to be required by fessional or technical services rendered law or regulation, and any other re- directly in the preparation, submis- quirements in the actual award docu- sion, or negotiation of any bid, pro- ments. posal, or application for that Federal (d) Only those services expressly au- contract, grant, loan, or cooperative thorized by this section are allowable agreement or for meeting requirements under this section. imposed by or pursuant to law as a condition for receiving that Federal § 18.210 Reporting. contract, grant, loan, or cooperative No reporting is required with respect agreement. to payments of reasonable compensa- (b) For purposes of paragraph (a) of tion made to regularly employed offi- this section, ‘‘professional and tech- cers or employees of a person. nical services’’ shall be limited to advice and analysis directly applying any professional or technical discipline. Subpart C—Activities by Other For example, drafting of a legal docu- Than Own Employees ment accompanying a bid or proposal by a lawyer is allowable. Similarly, § 18.300 Professional and technical services. technical advice provided by an engineer on the performance or operational (a) The prohibition on the use of ap- capability of a piece of equipment ren- propriated funds, in § 18.100 (a), does dered directly in the negotiation of a not apply in the case of any reasonable contract is allowable. However, com- payment to a person, other than an of- munications with the intent to influ- ficer or employee of a person request- ence made by a professional (such as a ing or receiving a covered Federal ac- licensed lawyer) or a technical person tion, if the payment is for professional (such as a licensed accountant) are not or technical services rendered directly allowable under this section unless in the preparation, submission, or ne- they provide advice and analysis di- gotiation of any bid, proposal, or appli- rectly applying their professional or cation for that Federal contract, grant, technical expertise and unless the ad- loan, or cooperative agreement or for vice or analysis is rendered directly meeting requirements imposed by or and solely in the preparation, submis- pursuant to law as a condition for re- sion or negotiation of a covered Fed- ceiving that Federal contract, grant, eral action. Thus, for example, commu- loan, or cooperative agreement. nications with the intent to influence (b) The reporting requirements in made by a lawyer that do not provide § 18.110 (a) and (b) regarding filing a dis- legal advice or analysis directly and closure form by each person, if re- solely related to the legal aspects of quired, shall not apply with respect to his or her client’s proposal, but gen- professional or technical services ren- erally advocate one proposal over an- dered directly in the preparation, sub- other are not allowable under this sec- mission, or negotiation of any commit- tion because the lawyer is not pro- ment providing for the United States viding professional legal services. to insure or guarantee a loan. Similarly, communications with the (c) For purposes of paragraph (a) of intent to influence made by an engi- this section, ‘‘professional and tech- neer providing an engineering analysis nical services’’ shall be limited to ad- prior to the preparation or submission vice and analysis directly applying any of a bid or proposal are not allowable professional or technical discipline. under this section since the engineer is For example, drafting or a legal docu- providing technical services but not di- ment accompanying a bid or proposal rectly in the preparation, submission by a lawyer is allowable. Similarly, or negotiation of a covered Federal ac- technical advice provided by an engi- tion. neer on the performance or operational (c) Requirements imposed by or pur- capability of a piece of equipment ren- suant to law as a condition for receiv- dered directly in the negotiation of a

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contract is allowable. However, com- (b) Any person who fails to file or munications with the intent to influ- amend the disclosure form (see appen- ence made by a professional (such as a dix B) to be filed or amended if re- licensed lawyer) or a technical person quired herein, shall be subject to a civil (such as a licensed accountant) are not penalty of not less than $10,000 and not allowable under this section unless more than $100,000 for each such fail- they provide advice and analysis di- ure. rectly applying their professional or (c) A filing or amended filing on or technical expertise and unless the ad- after the date on which an administra- vice or analysis is rendered directly tive action for the imposition of a civil and solely in the preparation, submis- penalty is commenced does not prevent sion or negotiation of a covered Fed- the imposition of such civil penalty for eral action. Thus, for example, commu- a failure occurring before that date. An nications with the intent to influence administrative action is commenced made by a lawyer that do not provide with respect to a failure when an inves- legal advice or analysis directly and tigating official determines in writing solely related to the legal aspects of to commence an investigation of an al- his or her client’s proposal, but gen- legation of such failure. erally advocate one proposal over an- (d) In determining whether to impose other are not allowable under this sec- a civil penalty, and the amount of any tion because the lawyer is not pro- such penalty, by reason of a violation viding professional legal services. by any person, the agency shall con- Similarly, communications with the sider the nature, circumstances, ex- intent to influence made by an engi- tent, and gravity of the violation, the neer providing an engineering analysis effect on the ability of such person to prior to the preparation or submission continue in business, any prior viola- of a bid or proposal are not allowable tions by such person, the degree of cul- under this section since the engineer is pability of such person, the ability of providing technical services but not di- the person to pay the penalty, and such rectly in the preparation, submission other matters as may be appropriate. or negotiation of a covered Federal ac- (e) First offenders under paragraphs tion. (a) or (b) of this section shall be subject (d) Requirements imposed by or pur- to a civil penalty of $10,000, absent ag- suant to law as a condition for receiv- gravating circumstances. Second and ing a covered Federal award include subsequent offenses by persons shall be those required by law or regulation, or subject to an appropriate civil penalty reasonably expected to be required by between $10,000 and $100,000, as deter- law or regulation, and any other re- mined by the agency head or his or her quirements in the actual award docu- designee. ments. (f) An imposition of a civil penalty (e) Persons other than officers or em- under this section does not prevent the ployees of a person requesting or re- United States from seeking any other ceiving a covered Federal action in- remedy that may apply to the same clude consultants and trade associa- conduct that is the basis for the impo- tions. sition of such civil penalty. (f) Only those services expressly au- § 18.405 Penalty procedures. thorized by this section are allowable under this section. Agencies shall impose and collect civil penalties pursuant to the provisions of the Program Fraud and Civil Subpart D—Penalties and Remedies Act, 31 U.S.C. 3803 (except Enforcement subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar as these provi- § 18.400 Penalties. sions are not inconsistent with the re- (a) Any person who makes an expend- quirements herein. iture prohibited herein shall be subject to a civil penalty of not less than § 18.410 Enforcement. $10,000 and not more than $100,000 for The head of each agency shall take each such expenditure. such actions as are necessary to ensure

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that the provisions herein are vigor- Services of the Senate and the House of ously implemented and enforced in Representatives (whichever such com- that agency. mittees have jurisdiction of matters involving such information) and to the Subpart E—Exemptions Committees on Appropriations of the Senate and the House of Representa- § 18.500 Secretary of Defense. tives in accordance with procedures (a) The Secretary of Defense may ex- agreed to by such committees. Such in- empt, on a case-by-case basis, a cov- formation shall not be available for ered Federal action from the prohibi- public inspection. tion whenever the Secretary deter- (e) The first semi-annual compilation mines, in writing, that such an exemp- shall be submitted on May 31, 1990, and tion is in the national interest. The shall contain a compilation of the dis- Secretary shall transmit a copy of each closure reports received from Decem- such written exemption to Congress ber 23, 1989 to March 31, 1990. immediately after making such a de- (f) Major agencies, designated by the termination. Office of Management and Budget (b) The Department of Defense may (OMB), are required to provide ma- issue supplemental regulations to im- chine-readable compilations to the plement paragraph (a) of this section. Secretary of the Senate and the Clerk of the House of Representatives no Subpart F—Agency Reports later than with the compilations due on May 31, 1991. OMB shall provide de- § 18.600 Semi-annual compilation. tailed specifications in a memorandum (a) The head of each agency shall col- to these agencies. lect and compile the disclosure reports (g) Non-major agencies are requested (see appendix B) and, on May 31 and to provide machine-readable compila- November 30 of each year, submit to tions to the Secretary of the Senate the Secretary of the Senate and the and the Clerk of the House of Rep- Clerk of the House of Representatives a resentatives. report containing a compilation of the (h) Agencies shall keep the originals information contained in the disclo- of all disclosure reports in the official sure reports received during the six- files of the agency. month period ending on March 31 or § 18.605 Inspector General report. September 30, respectively, of that year. (a) The Inspector General, or other (b) The report, including the com- official as specified in paragraph (b) of pilation, shall be available for public this section, of each agency shall pre- inspection 30 days after receipt of the pare and submit to Congress each year, report by the Secretary and the Clerk. commencing with submission of the (c) Information that involves intel- President’s Budget in 1991, an evalua- ligence matters shall be reported only tion of the compliance of that agency to the Select Committee on Intel- with, and the effectiveness of, the re- ligence of the Senate, the Permanent quirements herein. The evaluation may Select Committee on Intelligence of include any recommended changes that the House of Representatives, and the may be necessary to strengthen or im- Committees on Appropriations of the prove the requirements. Senate and the House of Representa- (b) In the case of an agency that does tives in accordance with procedures not have an Inspector General, the agreed to by such committees. Such in- agency official comparable to an In- formation shall not be available for spector General shall prepare and sub- public inspection. mit the annual report, or, if there is no (d) Information that is classified such comparable official, the head of under Executive Order 12356 or any suc- the agency shall prepare and submit cessor order shall be reported only to the annual report. the Committee on Foreign Relations of (c) The annual report shall be sub- the Senate and the Committee on For- mitted at the same time the agency eign Affairs of the House of Represent- submits its annual budget justifica- atives or the Committees on Armed tions to Congress.

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(d) The annual report shall include and submit Standard Form–LLL, ‘‘Disclo- the following: All alleged violations re- sure Form to Report Lobbying,’’ in accord- lating to the agency’s covered Federal ance with its instructions. actions during the year covered by the (3) The undersigned shall require that the language of this certification be included in report, the actions taken by the head the award documents for all subawards at all of the agency in the year covered by tiers (including subcontracts, subgrants, and the report with respect to those alleged contracts under grants, loans, and coopera- violations and alleged violations in tive agreements) and that all subrecipients previous years, and the amounts of shall certify and disclose accordingly. civil penalties imposed by the agency This certification is a material representa- in the year covered by the report. tion of fact upon which reliance was placed when this transaction was made or entered APPENDIX A TO PART 18—CERTIFICATION into. Submission of this certification is a REGARDING LOBBYING prerequisite for making or entering into this transaction imposed by section 1352, title 31, CERTIFICATION FOR CONTRACTS, GRANTS, U.S. Code. Any person who fails to file the LOANS, AND COOPERATIVE AGREEMENTS required certification shall be subject to a civil penalty of not less than $10,000 and not The undersigned certifies, to the best of his more than $100,000 for each such failure. or her knowledge and belief, that: (1) No Federal appropriated funds have STATEMENT FOR LOAN GUARANTEES AND LOAN been paid or will be paid, by or on behalf of INSURANCE the undersigned, to any person for influencing or attempting to influence an officer The undersigned states, to the best of his or employee of an agency, a Member of Con- or her knowledge and belief, that: gress, an officer or employee of Congress, or If any funds have been paid or will be paid an employee of a Member of Congress in con- to any person for influencing or attempting nection with the awarding of any Federal to influence an officer or employee of any contract, the making of any Federal grant, agency, a Member of Congress, an officer or the making of any Federal loan, the entering employee of Congress, or an employee of a into of any cooperative agreement, and the Member of Congress in connection with this extension, continuation, renewal, amend- commitment providing for the United States ment, or modification of any Federal con- to insure or guarantee a loan, the under- tract, grant, loan, or cooperative agreement. signed shall complete and submit Standard (2) If any funds other than Federal appro- Form–LLL, ‘‘Disclosure Form to Report Lob- priated funds have been paid or will be paid bying,’’ in accordance with its instructions. to any person for influencing or attempting Submission of this statement is a pre- to influence an officer or employee of any requisite for making or entering into this agency, a Member of Congress, an officer or transaction imposed by section 1352, title 31, employee of Congress, or an employee of a U.S. Code. Any person who fails to file the Member of Congress in connection with this required statement shall be subject to a civil Federal contract, grant, loan, or cooperative penalty of not less than $10,000 and not more agreement, the undersigned shall complete than $100,000 for each such failure.

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APPENDIX B TO PART 18—DISCLOSURE FORM TO REPORT LOBBYING

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PART 19—NONDISCRIMINATION 19.455 Textbooks and curricular material. ON THE BASIS OF SEX IN EDU- Subpart E—Discrimination on the Basis of CATION PROGRAMS OR ACTIVI- Sex in Employment in Education Pro- TIES RECEIVING FEDERAL FINAN- grams or Activities Prohibited CIAL ASSISTANCE 19.500 Employment. 19.505 Employment criteria. Subpart A—Introduction 19.510 Recruitment. 19.515 Compensation. Sec. 19.520 Job classification and structure. 19.100 Purpose and effective date. 19.525 Fringe benefits. 19.105 Definitions. 19.530 Marital or parental status. 19.110 Remedial and affirmative action and 19.535 Effect of state or local law or other self-evaluation. requirements. 19.115 Assurance required. 19.540 Advertising. 19.120 Transfers of property. 19.545 Pre-employment inquiries. 19.125 Effect of other requirements. 19.550 Sex as a bona fide occupational quali- 19.130 Effect of employment opportunities. fication. 19.135 Designation of responsible employee and adoption of grievance procedures. Subpart F—Procedures 19.140 Dissemination of policy. 19.600 Notice of covered programs. 19.605 Enforcement procedures. Subpart B—Coverage AUTHORITY: 20 U.S.C. 1681, 1682, 1683, 1685, 19.200 Application. 1686, 1687, 1688. 19.205 Educational institutions and other SOURCE: 65 FR 52865, 52892, Aug. 30, 2000, un- entities controlled by religious organiza- less otherwise noted. tions. 19.210 Military and merchant marine educational institutions. Subpart A—Introduction 19.215 Membership practices of certain organizations. § 19.100 Purpose and effective date. 19.220 Admissions. The purpose of these Title IX regula- 19.225 Educational institutions eligible to tions is to effectuate Title IX of the submit transition plans. Education Amendments of 1972, as 19.230 Transition plans. amended (except sections 904 and 906 of 19.235 Statutory amendments. those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688), which is Subpart C—Discrimination on the Basis of designed to eliminate (with certain ex- Sex in Admission and Recruitment Pro- ceptions) discrimination on the basis of hibited sex in any education program or activ- 19.300 Admission. ity receiving Federal financial assist- 19.305 Preference in admission. ance, whether or not such program or 19.310 Recruitment. activity is offered or sponsored by an educational institution as defined in Subpart D—Discrimination on the Basis of these Title IX regulations. The effec- Sex in Education Programs or Activities tive date of these Title IX regulations Prohibited shall be September 29, 2000. 19.400 Education programs or activities. § 19.105 Definitions. 19.405 Housing. As used in these Title IX regulations, 19.410 Comparable facilities. the term: 19.415 Access to course offerings. Administratively separate unit means a 19.420 Access to schools operated by LEAs. 19.425 Counseling and use of appraisal and school, department, or college of an counseling materials. educational institution (other than a 19.430 Financial assistance. local educational agency) admission to 19.435 Employment assistance to students. which is independent of admission to 19.440 Health and insurance benefits and any other component of such institu- services. tion. 19.445 Marital or parental status. Admission means selection for part- 19.450 Athletics. time, full-time, special, associate,

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transfer, exchange, or any other enroll- use Federal property or any interest ment, membership, or matriculation in therein without consideration. or at an education program or activity (5) Any other contract, agreement, or operated by a recipient. arrangement that has as one of its pur- Applicant means one who submits an poses the provision of assistance to any application, request, or plan required education program or activity, except to be approved by an official of the a contract of insurance or guaranty. Federal agency that awards Federal fi- Institution of graduate higher edu- nancial assistance, or by a recipient, as cation means an institution that: a condition to becoming a recipient. (1) Offers academic study beyond the Designated agency official means Di- bachelor of arts or bachelor of science rector, Office of Equal Rights. degree, whether or not leading to a cer- Educational institution means a local tificate of any higher degree in the lib- educational agency (LEA) as defined by eral arts and sciences; 20 U.S.C. 8801(18), a preschool, a private (2) Awards any degree in a profes- elementary or secondary school, or an sional field beyond the first profes- applicant or recipient that is an insti- sional degree (regardless of whether tution of graduate higher education, an the first professional degree in such institution of undergraduate higher field is awarded by an institution of education, an institution of profes- undergraduate higher education or pro- sional education, or an institution of fessional education); or vocational education, as defined in this (3) Awards no degree and offers no section. further academic study, but operates ordinarily for the purpose of facili- Federal financial assistance means any tating research by persons who have of the following, when authorized or received the highest graduate degree in extended under a law administered by any field of study. the Federal agency that awards such Institution of professional education assistance: means an institution (except any insti- (1) A grant or loan of Federal finan- tution of undergraduate higher edu- cial assistance, including funds made cation) that offers a program of aca- available for: demic study that leads to a first profes- (i) The acquisition, construction, ren- sional degree in a field for which there ovation, restoration, or repair of a is a national specialized accrediting building or facility or any portion agency recognized by the Secretary of thereof; and Education. (ii) Scholarships, loans, grants, Institution of undergraduate higher wages, or other funds extended to any education means: entity for payment to or on behalf of (1) An institution offering at least students admitted to that entity, or two but less than four years of college- extended directly to such students for level study beyond the high school payment to that entity. level, leading to a diploma or an asso- (2) A grant of Federal real or per- ciate degree, or wholly or principally sonal property or any interest therein, creditable toward a baccalaureate de- including surplus property, and the gree; or proceeds of the sale or transfer of such (2) An institution offering academic property, if the Federal share of the study leading to a baccalaureate de- fair market value of the property is gree; or not, upon such sale or transfer, prop- (3) An agency or body that certifies erly accounted for to the Federal Gov- credentials or offers degrees, but that ernment. may or may not offer academic study. (3) Provision of the services of Fed- Institution of vocational education eral personnel. means a school or institution (except (4) Sale or lease of Federal property an institution of professional or grad- or any interest therein at nominal con- uate or undergraduate higher edu- sideration, or at consideration reduced cation) that has as its primary purpose for the purpose of assisting the recipi- preparation of students to pursue a ent or in recognition of public interest technical, skilled, or semiskilled occu- to be served thereby, or permission to pation or trade, or to pursue study in a

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technical field, whether or not the activity, a recipient may take affirma- school or institution offers certificates, tive action consistent with law to over- diplomas, or degrees and whether or come the effects of conditions that re- not it offers full-time study. sulted in limited participation therein Recipient means any State or polit- by persons of a particular sex. Nothing ical subdivision thereof, or any instru- in these Title IX regulations shall be mentality of a State or political sub- interpreted to alter any affirmative ac- division thereof, any public or private tion obligations that a recipient may agency, institution, or organization, or have under Executive Order 11246, 3 other entity, or any person, to whom CFR, 1964–1965 Comp., p. 339; as amend- Federal financial assistance is ex- ed by Executive Order 11375, 3 CFR, tended directly or through another re- 1966–1970 Comp., p. 684; as amended by cipient and that operates an education Executive Order 11478, 3 CFR, 1966–1970 program or activity that receives such Comp., p. 803; as amended by Executive assistance, including any subunit, suc- Order 12086, 3 CFR, 1978 Comp., p. 230; cessor, assignee, or transferee thereof. as amended by Executive Order 12107, 3 Student means a person who has CFR, 1978 Comp., p. 264. gained admission. (c) Self-evaluation. Each recipient Title IX means Title IX of the Edu- education institution shall, within one cation Amendments of 1972, Public Law year of September 29, 2000: 92–318, 86 Stat. 235, 373 (codified as (1) Evaluate, in terms of the require- amended at 20 U.S.C. 1681–1688) (except ments of these Title IX regulations, its sections 904 and 906 thereof), as amend- current policies and practices and the ed by section 3 of Public Law 93–568, 88 effects thereof concerning admission of Stat. 1855, by section 412 of the Edu- students, treatment of students, and cation Amendments of 1976, Public Law employment of both academic and non- 94–482, 90 Stat. 2234, and by Section 3 of academic personnel working in connec- Public Law 100–259, 102 Stat. 28, 28–29 tion with the recipient’s education pro- (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, gram or activity; 1688). (2) Modify any of these policies and Title IX regulations means the provi- practices that do not or may not meet sions set forth at §§ 19.100 through the requirements of these Title IX reg- 19.605. ulations; and Transition plan means a plan subject (3) Take appropriate remedial steps to the approval of the Secretary of to eliminate the effects of any dis- Education pursuant to section 901(a)(2) crimination that resulted or may have of the Education Amendments of 1972, resulted from adherence to these poli- 20 U.S.C. 1681(a)(2), under which an edu- cies and practices. cational institution operates in mak- (d) Availability of self-evaluation and ing the transition from being an edu- related materials. Recipients shall main- cational institution that admits only tain on file for at least three years fol- students of one sex to being one that lowing completion of the evaluation re- admits students of both sexes without quired under paragraph (c) of this sec- discrimination. tion, and shall provide to the designated agency official upon request, a § 19.110 Remedial and affirmative ac- description of any modifications made tion and self-evaluation. pursuant to paragraph (c)(2) of this sec- (a) Remedial action. If the designated tion and of any remedial steps taken agency official finds that a recipient pursuant to paragraph (c)(3) of this sec- has discriminated against persons on tion. the basis of sex in an education program or activity, such recipient shall § 19.115 Assurance required. take such remedial action as the des- (a) General. Either at the application ignated agency official deems nec- stage or the award stage, Federal agen- essary to overcome the effects of such cies must ensure that applications for discrimination. Federal financial assistance or awards (b) Affirmative action. In the absence of Federal financial assistance contain, of a finding of discrimination on the be accompanied by, or be covered by a basis of sex in an education program or specifically identified assurance from

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the applicant or recipient, satisfactory § 19.120 Transfers of property. to the designated agency official, that If a recipient sells or otherwise trans- each education program or activity op- fers property financed in whole or in erated by the applicant or recipient part with Federal financial assistance and to which these Title IX regulations to a transferee that operates any edu- apply will be operated in compliance cation program or activity, and the with these Title IX regulations. An as- Federal share of the fair market value surance of compliance with these Title of the property is not upon such sale or IX regulations shall not be satisfactory transfer properly accounted for to the to the designated agency official if the Federal Government, both the trans- applicant or recipient to whom such as- feror and the transferee shall be surance applies fails to commit itself deemed to be recipients, subject to the to take whatever remedial action is provisions of §§ 19.205 through 19.235(a). necessary in accordance with § 19.110(a) to eliminate existing discrimination on § 19.125 Effect of other requirements. the basis of sex or to eliminate the ef- (a) Effect of other Federal provisions. fects of past discrimination whether The obligations imposed by these Title occurring prior to or subsequent to the IX regulations are independent of, and submission to the designated agency do not alter, obligations not to dis- official of such assurance. criminate on the basis of sex imposed (b) Duration of obligation. (1) In the by Executive Order 11246, 3 CFR, 1964– 1965 Comp., p. 339; as amended by Exec- case of Federal financial assistance ex- utive Order 11375, 3 CFR, 1966–1970 tended to provide real property or Comp., p. 684; as amended by Executive structures thereon, such assurance Order 11478, 3 CFR, 1966–1970 Comp., p. shall obligate the recipient or, in the 803; as amended by Executive Order case of a subsequent transfer, the 12087, 3 CFR, 1978 Comp., p. 230; as transferee, for the period during which amended by Executive Order 12107, 3 the real property or structures are used CFR, 1978 Comp., p. 264; sections 704 to provide an education program or ac- and 855 of the Public Health Service tivity. Act (42 U.S.C. 295m, 298b-2); Title VII of (2) In the case of Federal financial as- the Civil Rights Act of 1964 (42 U.S.C. sistance extended to provide personal 2000e et seq.); the Equal Pay Act of 1963 property, such assurance shall obligate (29 U.S.C. 206); and any other Act of the recipient for the period during Congress or Federal regulation. which it retains ownership or posses- (b) Effect of State or local law or other sion of the property. requirements. The obligation to comply (3) In all other cases such assurance with these Title IX regulations is not shall obligate the recipient for the pe- obviated or alleviated by any State or riod during which Federal financial as- local law or other requirement that sistance is extended. would render any applicant or student ineligible, or limit the eligibility of (c) Form. (1) The assurances required any applicant or student, on the basis by paragraph (a) of this section, which of sex, to practice any occupation or may be included as part of a document profession. that addresses other assurances or obli- (c) Effect of rules or regulations of pri- gations, shall include that the appli- vate organizations. The obligation to cant or recipient will comply with all comply with these Title IX regulations applicable Federal statutes relating to is not obviated or alleviated by any nondiscrimination. These include but rule or regulation of any organization, are not limited to: Title IX of the Edu- club, athletic or other league, or asso- cation Amendments of 1972, as amend- ciation that would render any applied (20 U.S.C. 1681–1683, 1685–1688). cant or student ineligible to partici- (2) The designated agency official pate or limit the eligibility or partici- will specify the extent to which such pation of any applicant or student, on assurances will be required of the ap- the basis of sex, in any education pro- plicant’s or recipient’s subgrantees, gram or activity operated by a recipi- contractors, subcontractors, trans- ent and that receives Federal financial ferees, or successors in interest. assistance.

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§ 19.130 Effect of employment opportu- the protections against discrimination nities. assured them by Title IX and these The obligation to comply with these Title IX regulations, but shall state at Title IX regulations is not obviated or least that the requirement not to dis- alleviated because employment oppor- criminate in education programs or ac- tunities in any occupation or profes- tivities extends to employment there- sion are or may be more limited for in, and to admission thereto unless members of one sex than for members §§ 19.300 through 19.310 do not apply to of the other sex. the recipient, and that inquiries concerning the application of Title IX and § 19.135 Designation of responsible em- these Title IX regulations to such re- ployee and adoption of grievance cipient may be referred to the em- procedures. ployee designated pursuant to § 19.135, (a) Designation of responsible employee. or to the designated agency official. Each recipient shall designate at least (2) Each recipient shall make the ini- one employee to coordinate its efforts tial notification required by paragraph to comply with and carry out its re- (a)(1) of this section within 90 days of sponsibilities under these Title IX reg- September 29, 2000 or of the date these ulations, including any investigation of Title IX regulations first apply to such any complaint communicated to such recipient, whichever comes later, recipient alleging its noncompliance which notification shall include publi- with these Title IX regulations or al- cation in: leging any actions that would be pro- (i) Newspapers and magazines oper- hibited by these Title IX regulations. ated by such recipient or by student, The recipient shall notify all its stu- alumnae, or alumni groups for or in dents and employees of the name, of- connection with such recipient; and fice address, and telephone number of (ii) Memoranda or other written com- the employee or employees appointed munications distributed to every stu- pursuant to this paragraph. dent and employee of such recipient. (b) Complaint procedure of recipient. A (b) Publications. (1) Each recipient recipient shall adopt and publish griev- shall prominently include a statement ance procedures providing for prompt of the policy described in paragraph (a) and equitable resolution of student and of this section in each announcement, employee complaints alleging any ac- bulletin, catalog, or application form tion that would be prohibited by these that it makes available to any person Title IX regulations. of a type, described in paragraph (a) of this section, or which is otherwise used § 19.140 Dissemination of policy. in connection with the recruitment of (a) Notification of policy. (1) Each re- students or employees. cipient shall implement specific and (2) A recipient shall not use or dis- continuing steps to notify applicants tribute a publication of the type de- for admission and employment, stu- scribed in paragraph (b)(1) of this sec- dents and parents of elementary and tion that suggests, by text or illustra- secondary school students, employees, tion, that such recipient treats appli- sources of referral of applicants for ad- cants, students, or employees dif- mission and employment, and all ferently on the basis of sex except as unions or professional organizations such treatment is permitted by these holding collective bargaining or profes- Title IX regulations. sional agreements with the recipient, (c) Distribution. Each recipient shall that it does not discriminate on the distribute without discrimination on basis of sex in the educational pro- the basis of sex each publication de- grams or activities that it operates, scribed in paragraph (b)(1) of this sec- and that it is required by Title IX and tion, and shall apprise each of its ad- these Title IX regulations not to dis- mission and employment recruitment criminate in such a manner. Such noti- representatives of the policy of non- fication shall contain such informa- discrimination described in paragraph tion, and be made in such manner, as (a) of this section, and shall require the designated agency official finds such representatives to adhere to such necessary to apprise such persons of policy.

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Subpart B—Coverage the Young Women’s Christian Associa- tion (YWCA), the Girl Scouts, the Boy § 19.200 Application. Scouts, and Camp Fire Girls. Except as provided in §§ 19.205 (c) Voluntary youth service organiza- through 19.235(a), these Title IX regulations. These Title IX regulations do not tions apply to every recipient and to apply to the membership practices of a each education program or activity op- voluntary youth service organization erated by such recipient that receives that is exempt from taxation under Federal financial assistance. section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the § 19.205 Educational institutions and membership of which has been tradi- other entities controlled by reli- tionally limited to members of one sex gious organizations. and principally to persons of less than (a) Exemption. These Title IX regula- nineteen years of age. tions do not apply to any operation of an educational institution or other en- § 19.220 Admissions. tity that is controlled by a religious organization to the extent that appli- (a) Admissions to educational insti- cation of these Title IX regulations tutions prior to June 24, 1973, are not would not be consistent with the reli- covered by these Title IX regulations. gious tenets of such organization. (b) Administratively separate units. For (b) Exemption claims. An educational the purposes only of this section, institution or other entity that wishes §§ 19.225 and 19.230, and §§ 19.300 through to claim the exemption set forth in 19.310, each administratively separate paragraph (a) of this section shall do so unit shall be deemed to be an edu- by submitting in writing to the des- cational institution. ignated agency official a statement by (c) Application of §§ 19.300 through .310. the highest-ranking official of the in- Except as provided in paragraphs (d) stitution, identifying the provisions of and (e) of this section, §§ 19.300 through these Title IX regulations that conflict 19.310 apply to each recipient. A recipi- with a specific tenet of the religious or- ent to which §§ 19.300 through 19.310 ganization. apply shall not discriminate on the basis of sex in admission or recruit- § 19.210 Military and merchant marine ment in violation of §§ 19.300 through educational institutions. 19.310. These Title IX regulations do not (d) Educational institutions. Except as apply to an educational institution provided in paragraph (e) of this sec- whose primary purpose is the training tion as to recipients that are edu- of individuals for a military service of cational institutions, §§ 19.300 through the United States or for the merchant 19.310 apply only to institutions of vo- marine. cational education, professional edu- § 19.215 Membership practices of cer- cation, graduate higher education, and tain organizations. public institutions of undergraduate higher education. (a) Social fraternities and sororities. These Title IX regulations do not apply (e) Public institutions of undergraduate to the membership practices of social higher education. §§ 19.300 through 19.310 fraternities and sororities that are ex- do not apply to any public institution empt from taxation under section of undergraduate higher education that 501(a) of the Internal Revenue Code of traditionally and continually from its 1954, 26 U.S.C. 501(a), the active mem- establishment has had a policy of ad- bership of which consists primarily of mitting students of only one sex. students in attendance at institutions of higher education. § 19.225 Educational institutions eligi- (b) YMCA, YWCA, Girl Scouts, Boy ble to submit transition plans. Scouts, and Camp Fire Girls. These Title (a) Application. This section applies IX regulations do not apply to the to each educational institution to membership practices of the Young which §§ 19.300 through 19.310 apply Men’s Christian Association (YMCA), that:

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(1) Admitted students of only one sex class during the period covered by the as regular students as of June 23, 1972; plan. or (c) Nondiscrimination. No policy or (2) Admitted students of only one sex practice of a recipient to which § 19.225 as regular students as of June 23, 1965, applies shall result in treatment of ap- but thereafter admitted, as regular stu- plicants to or students of such recipi- dents, students of the sex not admitted ent in violation of §§ 19.300 through prior to June 23, 1965. 19.310 unless such treatment is neces- (b) Provision for transition plans. An sitated by an obstacle identified in educational institution to which this paragraph (b)(3) of this section and a section applies shall not discriminate schedule for eliminating that obstacle on the basis of sex in admission or re- has been provided as required by para- cruitment in violation of §§ 19.300 graph (b)(4) of this section. through 19.310. (d) Effects of past exclusion. To overcome the effects of past exclusion of § 19.230 Transition plans. students on the basis of sex, each edu- (a) Submission of plans. An institution cational institution to which § 19.225 to which § 19.225 applies and that is applies shall include in its transition composed of more than one administra- plan, and shall implement, specific tively separate unit may submit either steps designed to encourage individuals a single transition plan applicable to of the previously excluded sex to apply all such units, or a separate transition for admission to such institution. Such plan applicable to each such unit. steps shall include instituting recruit- (b) Content of plans. In order to be ap- ment programs that emphasize the in- proved by the Secretary of Education, stitution’s commitment to enrolling a transition plan shall: students of the sex previously ex- (1) State the name, address, and Fed- cluded. eral Interagency Committee on Edu- cation Code of the educational institu- § 19.235 Statutory amendments. tion submitting such plan, the admin- (a) This section, which applies to all istratively separate units to which the provisions of these Title IX regula- plan is applicable, and the name, ad- tions, addresses statutory amendments dress, and telephone number of the per- to Title IX. son to whom questions concerning the (b) These Title IX regulations shall plan may be addressed. The person who not apply to or preclude: submits the plan shall be the chief administrator or president of the institu- (1) Any program or activity of the tion, or another individual legally au- American Legion undertaken in con- thorized to bind the institution to all nection with the organization or oper- actions set forth in the plan. ation of any Boys State conference, (2) State whether the educational in- Boys Nation conference, Girls State stitution or administratively separate conference, or Girls Nation conference; unit admits students of both sexes as (2) Any program or activity of a sec- regular students and, if so, when it ondary school or educational institu- began to do so. tion specifically for: (3) Identify and describe with respect (i) The promotion of any Boys State to the educational institution or ad- conference, Boys Nation conference, ministratively separate unit any obsta- Girls State conference, or Girls Nation cles to admitting students without dis- conference; or crimination on the basis of sex. (ii) The selection of students to at- (4) Describe in detail the steps nec- tend any such conference; essary to eliminate as soon as prac- (3) Father-son or mother-daughter ticable each obstacle so identified and activities at an educational institution indicate the schedule for taking these or in an education program or activity, steps and the individual directly re- but if such activities are provided for sponsible for their implementation. students of one sex, opportunities for (5) Include estimates of the number reasonably comparable activities shall of students, by sex, expected to apply be provided to students of the other for, be admitted to, and enter each sex;

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(4) Any scholarship or other financial (2)(i) Program or activity does not in- assistance awarded by an institution of clude any operation of an entity that is higher education to an individual be- controlled by a religious organization cause such individual has received such if the application of 20 U.S.C. 1681 to award in a single-sex pageant based such operation would not be consistent upon a combination of factors related with the religious tenets of such orga- to the individual’s personal appear- nization. ance, poise, and talent. The pageant, (ii) For example, all of the operations however, must comply with other non- of a college, university, or other post- discrimination provisions of Federal secondary institution, including but law. not limited to traditional educational (c) Program or activity or program operations, faculty and student hous- means: ing, campus shuttle bus service, cam- (1) All of the operations of any entity pus restaurants, the bookstore, and described in paragraphs (c)(1)(i) other commercial activities are part of through (iv) of this section, any part of a ‘‘program or activity’’ subject to which is extended Federal financial as- these Title IX regulations if the col- sistance: lege, university, or other institution (i)(A) A department, agency, special receives Federal financial assistance. purpose district, or other instrumen- (d)(1) Nothing in these Title IX regu- tality of a State or of a local govern- lations shall be construed to require or ment; or prohibit any person, or public or pri- (B) The entity of such State or local vate entity, to provide or pay for any government that distributes such as- benefit or service, including the use of sistance and each such department or facilities, related to an abortion. Med- agency (and each other State or local ical procedures, benefits, services, and government entity) to which the as- the use of facilities, necessary to save sistance is extended, in the case of as- the life of a pregnant woman or to ad- sistance to a State or local govern- dress complications related to an abor- ment; tion are not subject to this section. (ii)(A) A college, university, or other (2) Nothing in this section shall be postsecondary institution, or a public construed to permit a penalty to be im- system of higher education; or posed on any person or individual be- (B) A local educational agency (as de- cause such person or individual is seek- fined in section 8801 of title 20), system ing or has received any benefit or serv- of vocational education, or other ice related to a legal abortion. Accord- school system; ingly, subject to paragraph (d)(1) of (iii)(A) An entire corporation, part- this section, no person shall be ex- nership, or other private organization, cluded from participation in, be denied or an entire sole proprietorship— the benefits of, or be subjected to discrimination under any academic, ex- (1) If assistance is extended to such tracurricular, research, occupational corporation, partnership, private orga- training, employment, or other edu- nization, or sole proprietorship as a cational program or activity operated whole; or by a recipient that receives Federal fi- (2) Which is principally engaged in nancial assistance because such indi- the business of providing education, vidual has sought or received, or is health care, housing, social services, or seeking, a legal abortion, or any ben- parks and recreation; or efit or service related to a legal abor- (B) The entire plant or other com- tion. parable, geographically separate facility to which Federal financial assistance is extended, in the case of any Subpart C—Discrimination on the other corporation, partnership, private Basis of Sex in Admission and organization, or sole proprietorship; or Recruitment Prohibited (iv) Any other entity that is established by two or more of the entities § 19.300 Admission. described in paragraphs (c)(1)(i), (ii), or (a) General. No person shall, on the (iii) of this section. basis of sex, be denied admission, or be

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subjected to discrimination in admis- A recipient may make pre-admission sion, by any recipient to which §§ 19.300 inquiry as to the sex of an applicant for through §§ 19.310 apply, except as pro- admission, but only if such inquiry is vided in §§ 19.225 and §§ 19.230. made equally of such applicants of both (b) Specific prohibitions. (1) In deter- sexes and if the results of such inquiry mining whether a person satisfies any are not used in connection with dis- policy or criterion for admission, or in crimination prohibited by these Title making any offer of admission, a re- IX regulations. cipient to which §§ 19.300 through 19.310 apply shall not: § 19.305 Preference in admission. (i) Give preference to one person over A recipient to which §§ 19.300 through another on the basis of sex, by ranking 19.310 apply shall not give preference to applicants separately on such basis, or applicants for admission, on the basis otherwise; of attendance at any educational insti- (ii) Apply numerical limitations upon tution or other school or entity that the number or proportion of persons of admits as students only or predomi- either sex who may be admitted; or nantly members of one sex, if the giv- (iii) Otherwise treat one individual ing of such preference has the effect of differently from another on the basis of discriminating on the basis of sex in sex. violation of §§ 19.300 through 19.310. (2) A recipient shall not administer or operate any test or other criterion § 19.310 Recruitment. for admission that has a disproportion- (a) Nondiscriminatory recruitment. A ately adverse effect on persons on the recipient to which §§ 19.300 through basis of sex unless the use of such test 19.310 apply shall not discriminate on or criterion is shown to predict validly the basis of sex in the recruitment and success in the education program or ac- admission of students. A recipient may tivity in question and alternative tests be required to undertake additional re- or criteria that do not have such a dis- cruitment efforts for one sex as reme- proportionately adverse effect are dial action pursuant to § 19.110(a), and shown to be unavailable. may choose to undertake such efforts (c) Prohibitions relating to marital or as affirmative action pursuant to parental status. In determining whether § 19.110(b). a person satisfies any policy or cri- (b) Recruitment at certain institutions. terion for admission, or in making any A recipient to which §§ 19.300 through offer of admission, a recipient to which 19.310 apply shall not recruit primarily §§ 19.300 through 19.310 apply: or exclusively at educational institu- (1) Shall not apply any rule con- tions, schools, or entities that admit as cerning the actual or potential paren- students only or predominantly mem- tal, family, or marital status of a stu- bers of one sex, if such actions have the dent or applicant that treats persons effect of discriminating on the basis of differently on the basis of sex; sex in violation of §§ 19.300 through (2) Shall not discriminate against or 19.310. exclude any person on the basis of pregnancy, childbirth, termination of Subpart D—Discrimination on the pregnancy, or recovery therefrom, or Basis of Sex in Education Pro- establish or follow any rule or practice grams or Activities Prohibited that so discriminates or excludes; (3) Subject to § 19.235(d), shall treat § 19.400 Education programs or activi- disabilities related to pregnancy, child- ties. birth, termination of pregnancy, or re- (a) General. Except as provided else- covery therefrom in the same manner where in these Title IX regulations, no and under the same policies as any person shall, on the basis of sex, be ex- other temporary disability or physical cluded from participation in, be denied condition; and the benefits of, or be subjected to dis- (4) Shall not make pre-admission in- crimination under any academic, ex- quiry as to the marital status of an ap- tracurricular, research, occupational plicant for admission, including wheth- training, or other education program er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ or activity operated by a recipient that

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receives Federal financial assistance. tration of such scholarships, fellow- Sections 19.400 through 19.455 do not ships, or other awards that are re- apply to actions of a recipient in constricted to members of one sex pro- nection with admission of its students vides, or otherwise makes available, to an education program or activity of reasonable opportunities for similar a recipient to which §§ 19.300 through studies for members of the other sex. 19.310 do not apply, or an entity, not a Such opportunities may be derived recipient, to which §§ 19.300 through from either domestic or foreign 19.310 would not apply if the entity sources. were a recipient. (d) Aids, benefits or services not pro- (b) Specific prohibitions. Except as provided by recipient. (1) This paragraph (d) vided in §§ 19.400 through 19.455, in pro- applies to any recipient that requires viding any aid, benefit, or service to a participation by any applicant, stu- student, a recipient shall not, on the dent, or employee in any education basis of sex: program or activity not operated whol- (1) Treat one person differently from ly by such recipient, or that facilitates, another in determining whether such permits, or considers such participa- person satisfies any requirement or tion as part of or equivalent to an edu- condition for the provision of such aid, cation program or activity operated by benefit, or service; such recipient, including participation (2) Provide different aid, benefits, or in educational consortia and coopera- services or provide aid, benefits, or tive employment and student-teaching services in a different manner; assignments. (3) Deny any person any such aid, benefit, or service; (2) Such recipient: (4) Subject any person to separate or (i) Shall develop and implement a different rules of behavior, sanctions, procedure designed to assure itself that or other treatment; the operator or sponsor of such other (5) Apply any rule concerning the education program or activity takes no domicile or residence of a student or action affecting any applicant, student, applicant, including eligibility for in- or employee of such recipient that state fees and tuition; these Title IX regulations would pro- (6) Aid or perpetuate discrimination hibit such recipient from taking; and against any person by providing sig- (ii) Shall not facilitate, require, per- nificant assistance to any agency, or- mit, or consider such participation if ganization, or person that discrimi- such action occurs. nates on the basis of sex in providing any aid, benefit, or service to students § 19.405 Housing. or employees; (a) Generally. A recipient shall not, (7) Otherwise limit any person in the on the basis of sex, apply different enjoyment of any right, privilege, ad- rules or regulations, impose different vantage, or opportunity. fees or requirements, or offer different (c) Assistance administered by a recipi- services or benefits related to housing, ent educational institution to study at a except as provided in this section (in- foreign institution. A recipient edu- cluding housing provided only to mar- cational institution may administer or ried students). assist in the administration of scholar- (b) (1) A ships, fellowships, or other awards es- Housing provided by recipient. tablished by foreign or domestic wills, recipient may provide separate housing trusts, or similar legal instruments, or on the basis of sex. by acts of foreign governments and re- (2) Housing provided by a recipient to stricted to members of one sex, that students of one sex, when compared to are designed to provide opportunities that provided to students of the other to study abroad, and that are awarded sex, shall be as a whole: to students who are already matricu- (i) Proportionate in quantity to the lating at or who are graduates of the number of students of that sex apply- recipient institution; Provided, that a ing for such housing; and recipient educational institution that (ii) Comparable in quality and cost to administers or assists in the adminis- the student.

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(c) Other housing. (1) A recipient shall (2) This section does not prohibit not, on the basis of sex, administer dif- grouping of students in physical edu- ferent policies or practices concerning cation classes and activities by ability occupancy by its students of housing as assessed by objective standards of other than that provided by such re- individual performance developed and cipient. applied without regard to sex. (2)(i) A recipient which, through so- (3) This section does not prohibit sep- licitation, listing, approval of housing, aration of students by sex within phys- or otherwise, assists any agency, orga- ical education classes or activities dur- nization, or person in making housing ing participation in wrestling, boxing, available to any of its students, shall rugby, ice hockey, football, basketball, take such reasonable action as may be and other sports the purpose or major necessary to assure itself that such activity of which involves bodily con- housing as is provided to students of tact. one sex, when compared to that pro- (4) Where use of a single standard of vided to students of the other sex, is as measuring skill or progress in a phys- a whole: ical education class has an adverse ef- (A) Proportionate in quantity; and fect on members of one sex, the recipi- (B) Comparable in quality and cost to ent shall use appropriate standards the student. that do not have such effect. (ii) A recipient may render such as- (5) Portions of classes in elementary sistance to any agency, organization, and secondary schools, or portions of or person that provides all or part of education programs or activities, that such housing to students of only one deal exclusively with human sexuality sex. may be conducted in separate sessions for boys and girls. § 19.410 Comparable facilities. (6) Recipients may make require- A recipient may provide separate toi- ments based on vocal range or quality let, locker room, and shower facilities that may result in a chorus or choruses on the basis of sex, but such facilities of one or predominantly one sex. provided for students of one sex shall be comparable to such facilities pro- § 19.420 Access to schools operated by LEAs. vided for students of the other sex. A recipient that is a local edu- § 19.415 Access to course offerings. cational agency shall not, on the basis (a) A recipient shall not provide any of sex, exclude any person from admis- course or otherwise carry out any of its sion to: education program or activity sepa- (a) Any institution of vocational edu- rately on the basis of sex, or require or cation operated by such recipient; or refuse participation therein by any of (b) Any other school or educational its students on such basis, including unit operated by such recipient, unless health, physical education, industrial, such recipient otherwise makes avail- business, vocational, technical, home able to such person, pursuant to the economics, music, and adult education same policies and criteria of admission, courses. courses, services, and facilities com- (b)(1) With respect to classes and ac- parable to each course, service, and fa- tivities in physical education at the el- cility offered in or through such ementary school level, the recipient schools. shall comply fully with this section as expeditiously as possible but in no § 19.425 Counseling and use of appraisal and counseling materials. event later than one year from Sep- tember 29, 2000. With respect to phys- (a) Counseling. A recipient shall not ical education classes and activities at discriminate against any person on the the secondary and post-secondary lev- basis of sex in the counseling or guid- els, the recipient shall comply fully ance of students or applicants for ad- with this section as expeditiously as mission. possible but in no event later than (b) Use of appraisal and counseling ma- three years from September 29, 2000. terials. A recipient that uses testing or

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other materials for appraising or coun- sons of the other sex with regard to seling students shall not use different marital or parental status. materials for students on the basis of (b) Financial aid established by certain their sex or use materials that permit legal instruments. (1) A recipient may or require different treatment of stu- administer or assist in the administra- dents on such basis unless such dif- tion of scholarships, fellowships, or ferent materials cover the same occu- other forms of financial assistance es- pations and interest areas and the use tablished pursuant to domestic or for- of such different materials is shown to eign wills, trusts, bequests, or similar be essential to eliminate sex bias. Re- legal instruments or by acts of a for- cipients shall develop and use internal eign government that require that procedures for ensuring that such ma- awards be made to members of a par- terials do not discriminate on the basis ticular sex specified therein; Provided, of sex. Where the use of a counseling that the overall effect of the award of test or other instrument results in a substantially disproportionate number such sex-restricted scholarships, fel- of members of one sex in any particular lowships, and other forms of financial course of study or classification, the assistance does not discriminate on the recipient shall take such action as is basis of sex. necessary to assure itself that such dis- (2) To ensure nondiscriminatory proportion is not the result of discrimi- awards of assistance as required in nation in the instrument or its applica- paragraph (b)(1) of this section, recipi- tion. ents shall develop and use procedures (c) Disproportion in classes. Where a under which: recipient finds that a particular class (i) Students are selected for award of contains a substantially dispropor- financial assistance on the basis of tionate number of individuals of one nondiscriminatory criteria and not on sex, the recipient shall take such ac- the basis of availability of funds re- tion as is necessary to assure itself stricted to members of a particular sex; that such disproportion is not the re- (ii) An appropriate sex-restricted sult of discrimination on the basis of scholarship, fellowship, or other form sex in counseling or appraisal mate- of financial assistance is allocated to rials or by counselors. each student selected under paragraph (b)(2)(i) of this section; and § 19.430 Financial assistance. (iii) No student is denied the award (a) General. Except as provided in for which he or she was selected under paragraphs (b) and (c) of this section, paragraph (b)(2)(i) of this section be- in providing financial assistance to any cause of the absence of a scholarship, of its students, a recipient shall not: fellowship, or other form of financial (1) On the basis of sex, provide dif- assistance designated for a member of ferent amounts or types of such assist- that student’s sex. ance, limit eligibility for such assist- (c) Athletic scholarships. (1) To the ex- ance that is of any particular type or tent that a recipient awards athletic source, apply different criteria, or otherwise discriminate; scholarships or grants-in-aid, it must provide reasonable opportunities for (2) Through solicitation, listing, ap- such awards for members of each sex in proval, provision of facilities, or other services, assist any foundation, trust, proportion to the number of students agency, organization, or person that of each sex participating in inter- provides assistance to any of such re- scholastic or intercollegiate athletics. cipient’s students in a manner that dis- (2) A recipient may provide separate criminates on the basis of sex; or athletic scholarships or grants-in-aid (3) Apply any rule or assist in appli- for members of each sex as part of sep- cation of any rule concerning eligi- arate athletic teams for members of bility for such assistance that treats each sex to the extent consistent with persons of one sex differently from per- this paragraph (c) and § 19.450.

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§ 19.435 Employment assistance to stu- physician that the student is phys- dents. ically and emotionally able to continue (a) Assistance by recipient in making participation as long as such a certifi- available outside employment. A recipi- cation is required of all students for ent that assists any agency, organiza- other physical or emotional conditions tion, or person in making employment requiring the attention of a physician. available to any of its students: (3) A recipient that operates a por- (1) Shall assure itself that such em- tion of its education program or activ- ployment is made available without ity separately for pregnant students, discrimination on the basis of sex; and admittance to which is completely vol- (2) Shall not render such services to untary on the part of the student as any agency, organization, or person provided in paragraph (b)(1) of this sec- that discriminates on the basis of sex tion, shall ensure that the separate in its employment practices. portion is comparable to that offered (b) Employment of students by recipi- to non-pregnant students. ents. A recipient that employs any of (4) Subject to § 19.235(d), a recipient its students shall not do so in a manner shall treat pregnancy, childbirth, false that violates §§ 19.500 through 19.550. pregnancy, termination of pregnancy and recovery therefrom in the same § 19.440 Health and insurance benefits manner and under the same policies as and services. any other temporary disability with re- Subject to § 19.235(d), in providing a spect to any medical or hospital ben- medical, hospital, accident, or life in- efit, service, plan, or policy that such surance benefit, service, policy, or plan recipient administers, operates, offers, to any of its students, a recipient shall or participates in with respect to stu- not discriminate on the basis of sex, or dents admitted to the recipient’s edu- provide such benefit, service, policy, or cational program or activity. plan in a manner that would violate (5) In the case of a recipient that does §§ 19.500 through 19.550 if it were pro- not maintain a leave policy for its stu- vided to employees of the recipient. dents, or in the case of a student who This section shall not prohibit a recipi- does not otherwise qualify for leave ent from providing any benefit or serv- under such a policy, a recipient shall ice that may be used by a different pro- treat pregnancy, childbirth, false preg- portion of students of one sex than of nancy, termination of pregnancy, and the other, including family planning recovery therefrom as a justification services. However, any recipient that for a leave of absence for as long a pe- provides full coverage health service riod of time as is deemed medically shall provide gynecological care. necessary by the student’s physician, at the conclusion of which the student § 19.445 Marital or parental status. shall be reinstated to the status that (a) Status generally. A recipient shall she held when the leave began. not apply any rule concerning a student’s actual or potential parental, § 19.450 Athletics. family, or marital status that treats (a) General. No person shall, on the students differently on the basis of sex. basis of sex, be excluded from partici- (b) Pregnancy and related conditions. pation in, be denied the benefits of, be (1) A recipient shall not discriminate treated differently from another per- against any student, or exclude any son, or otherwise be discriminated student from its education program or against in any interscholastic, inter- activity, including any class or extra- collegiate, club, or intramural ath- curricular activity, on the basis of such letics offered by a recipient, and no re- student’s pregnancy, childbirth, false cipient shall provide any such athletics pregnancy, termination of pregnancy, separately on such basis. or recovery therefrom, unless the stu- (b) Separate teams. Notwithstanding dent requests voluntarily to partici- the requirements of paragraph (a) of pate in a separate portion of the pro- this section, a recipient may operate or gram or activity of the recipient. sponsor separate teams for members of (2) A recipient may require such a each sex where selection for such student to obtain the certification of a teams is based upon competitive skill

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or the activity involved is a contact (d) Adjustment period. A recipient that sport. However, where a recipient oper- operates or sponsors interscholastic, ates or sponsors a team in a particular intercollegiate, club, or intramural sport for members of one sex but oper- athletics at the elementary school ates or sponsors no such team for mem- level shall comply fully with this sec- bers of the other sex, and athletic option as expeditiously as possible but in portunities for members of that sex no event later than one year from Sep- have previously been limited, members tember 29, 2000. A recipient that oper- of the excluded sex must be allowed to ates or sponsors interscholastic, inter- try out for the team offered unless the collegiate, club, or intramural ath- sport involved is a contact sport. For letics at the secondary or postsec- the purposes of these Title IX regula- ondary school level shall comply fully tions, contact sports include boxing, with this section as expeditiously as wrestling, rugby, ice hockey, football, possible but in no event later than basketball, and other sports the pur- three years from September 29, 2000. pose or major activity of which involves bodily contact. § 19.455 Textbooks and curricular ma- (c) Equal opportunity. (1) A recipient terial. that operates or sponsors inter- Nothing in these Title IX regulations scholastic, intercollegiate, club, or in- shall be interpreted as requiring or pro- tramural athletics shall provide equal hibiting or abridging in any way the athletic opportunity for members of use of particular textbooks or cur- both sexes. In determining whether ricular materials. equal opportunities are available, the designated agency official will consider, among other factors: Subpart E—Discrimination on the (i) Whether the selection of sports Basis of Sex in Employment in and levels of competition effectively Education Programs or Activi- accommodate the interests and abilities Prohibited ties of members of both sexes; (ii) The provision of equipment and § 19.500 Employment. supplies; (a) General. (1) No person shall, on (iii) Scheduling of games and prac- the basis of sex, be excluded from par- tice time; ticipation in, be denied the benefits of, (iv) Travel and per diem allowance; or be subjected to discrimination in (v) Opportunity to receive coaching employment, or recruitment, consider- and academic tutoring; ation, or selection therefor, whether (vi) Assignment and compensation of full-time or part-time, under any edu- coaches and tutors; cation program or activity operated by (vii) Provision of locker rooms, prac- a recipient that receives Federal finan- tice, and competitive facilities; cial assistance. (viii) Provision of medical and train- (2) A recipient shall make all em- ing facilities and services; ployment decisions in any education (ix) Provision of housing and dining program or activity operated by such facilities and services; recipient in a nondiscriminatory man- (x) Publicity. ner and shall not limit, segregate, or (2) For purposes of paragraph (c)(1) of classify applicants or employees in any this section, unequal aggregate expend- way that could adversely affect any ap- itures for members of each sex or un- plicant’s or employee’s employment equal expenditures for male and female opportunities or status because of sex. teams if a recipient operates or spon- (3) A recipient shall not enter into sors separate teams will not constitute any contractual or other relationship noncompliance with this section, but which directly or indirectly has the ef- the designated agency official may fect of subjecting employees or stu- consider the failure to provide nec- dents to discrimination prohibited by essary funds for teams for one sex in §§ 19.500 through 19.550, including rela- assessing equality of opportunity for tionships with employment and refer- members of each sex. ral agencies, with labor unions, and

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with organizations providing or admin- (a) Use of such test or other criterion istering fringe benefits to employees of is shown to predict validly successful the recipient. performance in the position in ques- (4) A recipient shall not grant pref- tion; and erences to applicants for employment (b) Alternative tests or criteria for on the basis of attendance at any edu- such purpose, which do not have such cational institution or entity that ad- disproportionately adverse effect, are mits as students only or predominantly shown to be unavailable. members of one sex, if the giving of such preferences has the effect of dis- § 19.510 Recruitment. criminating on the basis of sex in vio- (a) Nondiscriminatory recruitment and lation of these Title IX regulations. hiring. A recipient shall not discrimi- (b) Application. The provisions of nate on the basis of sex in the recruit- §§ 19.500 through 19.550 apply to: ment and hiring of employees. Where a (1) Recruitment, advertising, and the recipient has been found to be pres- process of application for employment; ently discriminating on the basis of sex (2) Hiring, upgrading, promotion, in the recruitment or hiring of employ- consideration for and award of tenure, ees, or has been found to have so dis- demotion, transfer, layoff, termi- criminated in the past, the recipient nation, application of nepotism poli- shall recruit members of the sex so dis- cies, right of return from layoff, and criminated against so as to overcome rehiring; the effects of such past or present dis- (3) Rates of pay or any other form of crimination. compensation, and changes in com- (b) Recruitment patterns. A recipient pensation; shall not recruit primarily or exclu- (4) Job assignments, classifications, sively at entities that furnish as appli- and structure, including position de- cants only or predominantly members scriptions, lines of progression, and se- of one sex if such actions have the ef- niority lists; fect of discriminating on the basis of (5) The terms of any collective bar- sex in violation of §§ 19.500 through gaining agreement; 19.550. (6) Granting and return from leaves of absence, leave for pregnancy, child- § 19.515 Compensation. birth, false pregnancy, termination of A recipient shall not make or enforce pregnancy, leave for persons of either any policy or practice that, on the sex to care for children or dependents, basis of sex: or any other leave; (a) Makes distinctions in rates of pay (7) Fringe benefits available by vir- or other compensation; tue of employment, whether or not ad- (b) Results in the payment of wages ministered by the recipient; to employees of one sex at a rate less (8) Selection and financial support than that paid to employees of the op- for training, including apprenticeship, posite sex for equal work on jobs the professional meetings, conferences, and performance of which requires equal other related activities, selection for skill, effort, and responsibility, and tuition assistance, selection for that are performed under similar work- sabbaticals and leaves of absence to ing conditions. pursue training; (9) Employer-sponsored activities, in- § 19.520 Job classification and struc- cluding social or recreational pro- ture. grams; and A recipient shall not: (10) Any other term, condition, or (a) Classify a job as being for males privilege of employment. or for females; (b) Maintain or establish separate § 19.505 Employment criteria. lines of progression, seniority lists, ca- A recipient shall not administer or reer ladders, or tenure systems based operate any test or other criterion for on sex; or any employment opportunity that has (c) Maintain or establish separate a disproportionately adverse effect on lines of progression, seniority systems, persons on the basis of sex unless: career ladders, or tenure systems for

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similar jobs, position descriptions, or (c) Pregnancy as a temporary disability. job requirements that classify persons Subject to § 19235(d), a recipient shall on the basis of sex, unless sex is a bona treat pregnancy, childbirth, false preg- fide occupational qualification for the nancy, termination of pregnancy, re- positions in question as set forth in covery therefrom, and any temporary § 19.550. disability resulting therefrom as any other temporary disability for all job- § 19.525 Fringe benefits. related purposes, including commence- (a) ‘‘Fringe benefits’’ defined. For pur- ment, duration, and extensions of poses of these Title IX regulations, leave, payment of disability income, fringe benefits means: Any medical, hos- accrual of seniority and any other ben- pital, accident, life insurance, or re- efit or service, and reinstatement, and tirement benefit, service, policy or under any fringe benefit offered to em- plan, any profit-sharing or bonus plan, ployees by virtue of employment. leave, and any other benefit or service (d) Pregnancy leave. In the case of a of employment not subject to the pro- recipient that does not maintain a vision of § 19.515. leave policy for its employees, or in the (b) Prohibitions. A recipient shall not: case of an employee with insufficient (1) Discriminate on the basis of sex leave or accrued employment time to with regard to making fringe benefits qualify for leave under such a policy, a available to employees or make fringe recipient shall treat pregnancy, child- benefits available to spouses, families, birth, false pregnancy, termination of or dependents of employees differently pregnancy, and recovery therefrom as a upon the basis of the employee’s sex; justification for a leave of absence without pay for a reasonable period of (2) Administer, operate, offer, or par- time, at the conclusion of which the ticipate in a fringe benefit plan that employee shall be reinstated to the sta- does not provide for equal periodic ben- tus that she held when the leave began efits for members of each sex and for or to a comparable position, without equal contributions to the plan by such decrease in rate of compensation or recipient for members of each sex; or loss of promotional opportunities, or (3) Administer, operate, offer, or par- any other right or privilege of employ- ticipate in a pension or retirement plan ment. that establishes different optional or compulsory retirement ages based on § 19.535 Effect of state or local law or sex or that otherwise discriminates in other requirements. benefits on the basis of sex. (a) Prohibitory requirements. The obligation to comply with §§ 19.500 through § 19.530 Marital or parental status. 19.550 is not obviated or alleviated by (a) General. A recipient shall not the existence of any State or local law apply any policy or take any employ- or other requirement that imposes pro- ment action: hibitions or limits upon employment of (1) Concerning the potential marital, members of one sex that are not im- parental, or family status of an em- posed upon members of the other sex. ployee or applicant for employment (b) Benefits. A recipient that provides that treats persons differently on the any compensation, service, or benefit basis of sex; or to members of one sex pursuant to a (2) Which is based upon whether an State or local law or other requirement employee or applicant for employment shall provide the same compensation, is the head of household or principal service, or benefit to members of the wage earner in such employee’s or ap- other sex. plicant’s family unit. (b) Pregnancy. A recipient shall not § 19.540 Advertising. discriminate against or exclude from A recipient shall not in any adver- employment any employee or applicant tising related to employment indicate for employment on the basis of preg- preference, limitation, specification, or nancy, childbirth, false pregnancy, ter- discrimination based on sex unless sex mination of pregnancy, or recovery is a bona fide occupational qualifica- therefrom. tion for the particular job in question.

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§ 19.545 Pre-employment inquiries. of covered programs to reflect changes (a) Marital status. A recipient shall in covered programs. Copies of this no- not make pre-employment inquiry as tice also shall be made available upon to the marital status of an applicant request to the Federal agency’s office for employment, including whether that enforces Title IX. such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ (b) Sex. A recipient may make pre- § 196.605 Enforcement procedures. employment inquiry as to the sex of an The investigative, compliance, and applicant for employment, but only if enforcement procedural provisions of such inquiry is made equally of such Title VI of the Civil Rights Act of 1964 applicants of both sexes and if the re- (42 U.S.C. 2000d) (‘‘Title VI’’) are hereby sults of such inquiry are not used in adopted and applied to these Title IX connection with discrimination prohib- regulations. These procedures may be ited by these Title IX regulations. found at 32 CFR 195.7 through 195.12. § 19.550 Sex as a bona fide occupational qualification. PARTS 20–24 [RESERVED] A recipient may take action otherwise prohibited by §§ 19.500 through PART 25—UNIFORM RELOCATION 19.550 provided it is shown that sex is a ASSISTANCE AND REAL PROP- bona fide occupational qualification for ERTY ACQUISITION FOR FEDERAL that action, such that consideration of AND FEDERALLY ASSISTED PRO- sex with regard to such action is essen- GRAMS tial to successful operation of the employment function concerned. A recipient shall not take action pursuant to AUTHORITY: Sec. 213, Uniform Relocation this section that is based upon alleged Assistance and Real Property Acquisition comparative employment characteris- Policies Act of 1970, Pub. L. 91–646, 84 Stat. tics or stereotyped characterizations of 1894 (42 U.S.C. 4601) as amended by the Sur- face Transportation and Uniform Relocation one or the other sex, or upon pref- Assistance Act of 1987, title IV of Pub. L. 100– erence based on sex of the recipient, 17, 101 Stat. 246–256 (42 U.S.C. 4601 note). employees, students, or other persons, but nothing contained in this section § 25.1 Uniform relocation assistance shall prevent a recipient from consid- and real property acquisition. ering an employee’s sex in relation to Regulations and procedures for com- employment in a locker room or toilet plying with the Uniform Relocation facility used only by members of one Assistance and Real Property Acquisi- sex. tion Policies Act of 1970 (Pub. L. 91–646, 84 Stat. 1894, 42 U.S.C. 4601), as amend- Subpart F—Procedures ed by the Surface Transportation and Uniform Relocation Assistance Act of §19.600 Notice of covered programs. 1987 (title IV of Pub. L. 100–17, 101 Stat. Within 60 days of September 29, 2000, 246–256, 42 U.S.C. 4601 note) are set each Federal agency that awards Fed- forth in 49 CFR part 24. eral financial assistance shall publish in the FEDERAL REGISTER a notice of [52 FR 48026, Dec. 17, 1987 and 54 FR 8912, the programs covered by these Title IX Mar. 2, 1989] regulations. Each such Federal agency shall periodically republish the notice PARTS 26–49 [RESERVED]

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PARTS 50–54 [RESERVED] Apex means a point on an alluvial fan or similar landform below which the NATIONAL INSURANCE DEVELOPMENT flow path of the major stream that PROGRAM formed the fan becomes unpredictable and alluvial fan flooding can occur. PARTS 55–58 [RESERVED] Applicant means a community which indicates a desire to participate in the NATIONAL FLOOD INSURANCE PROGRAM Program. Appurtenant structure means a structure which is on the same parcel of PART 59—GENERAL PROVISIONS property as the principal structure to be insured and the use of which is inci- Subpart A—General dental to the use of the principal struc- Sec. ture. 59.1 Definitions. Area of future-conditions flood hazard 59.2 Description of program. means the land area that would be in- 59.3 Emergency program. undated by the 1-percent-annual- 59.4 References. chance (100-year) flood based on future- Subpart B—Eligibility Requirements conditions hydrology. Area of shallow flooding means a des- 59.21 Purpose of subpart. ignated AO, AH, AR/AO, AR/AH, or VO 59.22 Prerequisites for the sale of flood in- zone on a community’s Flood Insur- surance. ance Rate Map (FIRM) with a 1 percent 59.23 Priorities for the sale of flood insur- or greater annual chance of flooding to ance under the regular program. 59.24 Suspension of community eligibility. an average depth of 1 to 3 feet where a clearly defined channel does not exist, Subpart C—Pilot Inspection Program where the path of flooding is unpredictable, and where velocity flow may be 59.30 A pilot inspection procedure. evident. Such flooding is characterized AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- by ponding or sheet flow. nization Plan No. 3 of 1978, 43 FR 41943, 3 Area of special flood-related erosion CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, hazard is the land within a community 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. which is most likely to be subject to severe flood-related erosion losses. The Subpart A—General area may be designated as Zone E on the Flood Hazard Boundary Map § 59.1 Definitions. (FHBM). After the detailed evaluation As used in this subchapter— of the special flood-related erosion haz- Act means the statutes authorizing ard area in preparation for publication the National Flood Insurance Program of the FIRM, Zone E may be further re- that are incorporated in 42 U.S.C. 4001– fined. 4128. Area of special flood hazard is the land Actuarial rates—see risk premium rates. in the flood plain within a community Administrator means the Federal In- subject to a 1 percent or greater chance surance Administrator. of flooding in any given year. The area Agency means the Federal Emergency may be designated as Zone A on the Management Agency, Washington DC. FHBM. After detailed ratemaking has Alluvial fan flooding means flooding been completed in preparation for pub- occurring on the surface of an alluvial lication of the flood insurance rate fan or similar landform which origi- map, Zone A usually is refined into nates at the apex and is characterized Zones A, AO, AH, A1–30, AE, A99, AR, by high-velocity flows; active processes AR/A1–30, AR/AE, AR/AO, AR/AH, AR/ of erosion, sediment transport, and A, VO, or V1–30, VE, or V. For purposes deposition; and, unpredictable flow of these regulations, the term ‘‘special paths. flood hazard area’’ is synonymous in

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meaning with the phrase ‘‘area of spe- goods usual or incidental to residential cial flood hazard’’. occupancy, or merchandise, furniture, Area of special mudslide (i.e., mudflow) fixtures, machinery, equipment and hazard is the land within a community supplies usual to other than residential most likely to be subject to severe occupancies. mudslides (i.e., mudflows). The area Criteria means the comprehensive cri- may be designated as Zone M on the teria for land management and use for FHBM. After the detailed evaluation of flood-prone areas developed under 42 the special mudslide (i.e., mudflow) U.S.C. 4102 for the purposes set forth in hazard area in preparation for publica- part 60 of this subchapter. tion of the FIRM, Zone M may be fur- Critical feature means an integral and ther refined. readily identifiable part of a flood pro- Base flood means the flood having a tection system, without which the one percent chance of being equalled or flood protection provided by the entire exceeded in any given year. system would be compromised. Basement’’ means any area of the Curvilinear Line means the border on building having its floor subgrade either a FHBM or FIRM that delin- (below ground level) on all sides. eates the special flood, mudslide (i.e., Breakaway wall means a wall that is mudflow) and/or flood-related erosion not part of the structural support of hazard areas and consists of a curved the building and is intended through or contour line that follows the topog- its design and construction to collapse raphy. under specific lateral loading forces, Deductible means the fixed amount or without causing damage to the ele- percentage of any loss covered by in- vated portion of the building or sup- surance which is borne by the insured porting foundation system. prior to the insurer’s liability. Building—see structure. Developed area means an area of a Chargeable rates mean the rates es- community that is: tablished by the Administrator pursu- (a) A primarily urbanized, built-up ant to section 1308 of the Act for first area that is a minimum of 20 contig- layer limits of flood insurance on exist- uous acres, has basic urban infrastruc- ing structures. ture, including roads, utilities, commu- Chief Executive Officer of the communications, and public facilities, to sus- nity (CEO) means the official of the tain industrial, residential, and com- community who is charged with the mercial activities, and authority to implement and administer (1) Within which 75 percent or more laws, ordinances and regulations for of the parcels, tracts, or lots contain that community. commercial, industrial, or residential Coastal high hazard area means an structures or uses; or area of special flood hazard extending (2) Is a single parcel, tract, or lot in from offshore to the inland limit of a which 75 percent of the area contains primary frontal dune along an open existing commercial or industrial coast and any other area subject to structures or uses; or high velocity wave action from storms (3) Is a subdivision developed at a or seismic sources. density of at least two residential Community means any State or area structures per acre within which 75 or political subdivision thereof, or any percent or more of the lots contain ex- Indian tribe or authorized tribal orga- isting residential structures at the nization, or Alaska Native village or time the designation is adopted. authorized native organization, which (b) Undeveloped parcels, tracts, or has authority to adopt and enforce lots, the combination of which is less flood plain management regulations than 20 acres and contiguous on at for the areas within its jurisdiction. least 3 sides to areas meeting the cri- Contents coverage is the insurance on teria of paragraph (a) at the time the personal property within an enclosed designation is adopted. structure, including the cost of debris (c) A subdivision that is a minimum removal, and the reasonable cost of re- of 20 contiguous acres that has ob- moval of contents to minimize damage. tained all necessary government ap- Personal property may be household provals, provided that the actual

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‘‘start of construction’’ of structures Existing manufactured home park or has occurred on at least 10 percent of subdivision means a manufactured the lots or remaining lots of a subdivi- home park or subdivision for which the sion or 10 percent of the maximum construction of facilities for servicing building coverage or remaining build- the lots on which the manufactured ing coverage allowed for a single lot homes are to be affixed (including, at a subdivision at the time the designation minimum, the installation of utilities, is adopted and construction of struc- the construction of streets, and either tures is underway. Residential subdivi- final site grading or the pouring of con- sions must meet the density criteria in crete pads) is completed before the ef- paragraph (a)(3). fective date of the floodplain manage- Development means any man-made ment regulations adopted by a commu- change to improved or unimproved real nity. estate, including but not limited to Existing structures see existing con- buildings or other structures, mining, struction. dredging, filling, grading, paving, exca- Expansion to an existing manfactured vation or drilling operations or storage home park or subdivision means the of equipment or materials.. preparation of additional sites by the Director means the Director of the construction of facilities for servicing Federal Emergency Management Agen- the lots on which the manufacturing cy. homes are to be affixed (including the Eligible community or participating installation of utilities, the construc- community means a community for tion of streets, and either final site which the Administrator has author- grading or the pouring of concrete ized the sale of flood insurance under pads). the National Flood Insurance Program. Federal agency means any depart- Elevated building means, for insurance ment, agency, corporation, or other en- purposes, a nonbasement building tity or instrumentality of the execu- which has its lowest elevated floor tive branch of the Federal Government, raised above ground level by founda- and includes the Federal National tion walls, shear walls, posts, piers, pil- Mortgage Association and the Federal ings, or columns. Home Loan Mortgage Corporation. Emergency Flood Insurance Program or Federal instrumentality responsible for emergency program means the Program the supervision, approval, regulation, or as implemented on an emergency basis insuring of banks, savings and loan asso- in accordance with section 1336 of the ciations, or similar institutions means the Act. It is intended as a program to pro- Board of Governors of the Federal Re- vide a first layer amount of insurance serve System, the Federal Deposit In- on all insurable structures before the surance Corporation, the Comptroller effective date of the initial FIRM. of the Currency, the Federal Home Erosion means the process of the Loan Bank Board, the Federal Savings gradual wearing away of land masses. and Loan Insurance Corporation, and This peril is not per se covered under the National Credit Union Administra- the Program. tion. Exception means a waiver from the Financial assistance means any form provisions of part 60 of this subchapter of loan, grant, guaranty, insurance, directed to a community which repayment, rebate, subsidy, disaster as- lieves it from the requirements of a sistance loan or grant, or any other rule, regulation, order or other deter- form of direct or indirect Federal as- mination made or issued pursuant to sistance, other than general or special the Act. revenue sharing or formula grants Existing construction, means for the made to States. purposes of determining rates, struc- Financial assistance for acquisition or tures for which the ‘‘start of construc- construction purposes means any form of tion’’ commenced before the effective financial assistance which is intended date of the FIRM or before January 1, in whole or in part for the acquisition, 1975, for FIRMs effective before that construction, reconstruction, repair, or date. ‘‘Existing construction’’ may also improvement of any publicly or pri- be referred to as ‘‘existing structures.’’ vately owned building or mobile home,

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and for any machinery, equipment, fix- Flood Hazard Boundary Map (FHBM) tures, and furnishings contained or to means an official map of a community, be contained therein, and shall include issued by the Administrator, where the the purchase or subsidization of mort- boundaries of the flood, mudslide (i.e., gages or mortgage loans but shall ex- mudflow) related erosion areas having clude assistance pursuant to the Dis- special hazards have been designated as aster Relief Act of 1974 other than as- Zones A, M, and/or E. sistance under such Act in connection Flood insurance means the insurance with a flood. It includes only financial coverage provided under the Program. assistance insurable under the Stand- Flood Insurance Rate Map (FIRM) ard Flood Insurance Policy. means an official map of a community, First-layer coverage is the maximum on which the Administrator has delin- amount of structural and contents in- eated both the special hazard areas and surance coverage available under the the risk premium zones applicable to Emergency Program. the community. Flood or Flooding means: Flood Insurance Study see flood ele- (a) A general and temporary condi- vation study. tion of partial or complete inundation Flood plain or flood-prone area means of normally dry land areas from: any land area susceptible to being in- (1) The overflow of inland or tidal wa- undated by water from any source (see ters. definition of ‘‘flooding’’). (2) The unusual and rapid accumula- Flood plain management means the option or runoff of surface waters from eration of an overall program of cor- any source. rective and preventive measures for re- (3) Mudslides (i.e., mudflows) which ducing flood damage, including but not are proximately caused by flooding as limited to emergency preparedness defined in paragraph (a)(2) of this defi- plans, flood control works and flood nition and are akin to a river of liquid plain management regulations. and flowing mud on the surfaces of nor- Flood plain management regulations mally dry land areas, as when earth is means zoning ordinances, subdivision carried by a current of water and de- regulations, building codes, health reg- posited along the path of the current. ulations, special purpose ordinances (b) The collapse or subsidence of land (such as a flood plain ordinance, grad- along the shore of a lake or other body ing ordinance and erosion control ordi- of water as a result of erosion or under- nance) and other applications of police mining caused by waves or currents of power. The term describes such state water exceeding anticipated cyclical or local regulations, in any combina- levels or suddenly caused by an unusu- tion thereof, which provide standards ally high water level in a natural body for the purpose of flood damage preven- of water, accompanied by a severe tion and reduction. storm, or by an unanticipated force of Flood protection system means those nature, such as flash flood or an abnor- physical structural works for which mal tidal surge, or by some similarly funds have been authorized, appro- unusual and unforeseeable event which priated, and expended and which have results in flooding as defined in para- been constructed specifically to modify graph (a)(1) of this definition. flooding in order to reduce the extent Flood elevation determination means a of the area within a community subject determination by the Administrator of to a ‘‘special flood hazard’’ and the ex- the water surface elevations of the base tent of the depths of associated flood- flood, that is, the flood level that has a ing. Such a system typically includes one percent or greater chance of occur- hurricane tidal barriers, dams, res- rence in any given year. ervoirs, levees or dikes. These special- Flood elevation study means an exam- ized flood modifying works are those ination, evaluation and determination constructed in conformance with sound of flood hazards and, if appropriate, engineering standards. corresponding water surface elevations, Flood proofing means any combina- or an examination, evaluation and de- tion of structural and non-structural termination of mudslide (i.e., mudflow) additions, changes, or adjustments to and/or flood-related erosion hazards. structures which reduce or eliminate

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flood damage to real estate or im- repair facilities, but does not include proved real property, water and sani- long-term storage or related manufac- tary facilities, structures and their turing facilities. contents. Future-conditions flood hazard area, or Flood-related erosion means the col- future-conditions floodplain—see Area of lapse or subsidence of land along the future-conditions flood hazard. shore of a lake or other body of water Future-conditions hydrology means the as a result of undermining caused by flood discharges associated with pro- waves or currents of water exceeding jected land-use conditions based on a anticipated cyclical levels or suddenly community’s zoning maps and/or com- caused by an unusually high water prehensive land-use plans and without level in a natural body of water, ac- consideration of projected future con- companied by a severe storm, or by an struction of flood detention structures unanticipated force of nature, such as a or projected future hydraulic modifica- flash flood or an abnormal tidal surge, tions within a stream or other water- or by some similarly unusual and un- way, such as bridge and culvert con- foreseeable event which results in struction, fill, and excavation. flooding. General Counsel means the General Flood-related erosion area or flood-re- Counsel of the Federal Emergency lated erosion prone area means a land Management Agency. area adjoining the shore of a lake or Highest adjacent grade means the other body of water, which due to the highest natural elevation of the ground composition of the shoreline or bank surface prior to construction next to and high water levels or wind-driven the proposed walls of a structure. currents, is likely to suffer flood-re- Historic Structure means any struc- lated erosion damage. ture that is: Flood-related erosion area management (a) Listed individually in the Na- means the operation of an overall pro- tional Register of Historic Places (a gram of corrective and preventive listing maintained by the Department measures for reducing flood-related of Interior) or preliminarily deter- erosion damage, including but not lim- mined by the Secretary of the Interior ited to emergency preparedness plans, as meeting the requirements for indi- flood-related erosion control works, vidual listing on the National Register; and flood plain management regulations. (b) Certified or preliminarily deter- Floodway— see regulatory floodway. mined by the Secretary of the Interior Floodway encroachment lines mean the as contributing to the historical sig- lines marking the limits of floodways nificance of a registered historic dis- on Federal, State and local flood plain trict or a district preliminarily deter- maps. mined by the Secretary to qualify as a Freeboard means a factor of safety registered historic district; usually expressed in feet above a flood (c) Individually listed on a state in- level for purposes of flood plain man- ventory of historic places in states agement. ‘‘Freeboard’’ tends to com- with historic preservation programs pensate for the many unknown factors which have been approved by the Sec- that could contribute to flood heights retary of the Interior; or greater than the height calculated for (d) Individually listed on a local in- a selected size flood and floodway con- ventory of historic places in commu- ditions, such as wave action, bridge nities with historic preservation pro- openings, and the hydrological effect of grams that have been certified either: urbanization of the watershed. (1) By an approved state program as Functionally dependent use means a determined by the Secretary of the In- use which cannot perform its intended terior or purpose unless it is located or carried (2) Directly by the Secretary of the out in close proximity to water. The Interior in states without approved term includes only docking facilities, programs. port facilities that are necessary for Independent scientific body means a the loading and unloading of cargo or non-Federal technical or scientific or- passengers, and ship building and ship ganization involved in the study of

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land use planning, flood plain manage- parcels) of land divided into two or ment, hydrology, geology, geography, more manufactured home lots for rent or any other related field of study con- or sale. cerned with flooding. Map means the Flood Hazard Bound- Insurance adjustment organization ary Map (FHBM) or the Flood Insur- means any organization or person en- ance Rate Map (FIRM) for a commu- gaged in the business of adjusting loss nity issued by the Agency. claims arising under the Standard Mean sea level means, for purposes of Flood Insurance Policy. the National Flood Insurance Program, Insurance company or insurer means the National Geodetic Vertical Datum any person or organization authorized (NGVD) of 1929 or other datum, to to engage in the insurance business which base flood elevations shown on a under the laws of any State. community’s Flood Insurance Rate Levee means a man-made structure, Map are referenced. usually an earthen embankment, de- Mudslide(i.e., mudflow) describes a signed and constructed in accordance condition where there is a river, flow with sound engineering practices to or inundation of liquid mud down a contain, control, or divert the flow of hillside usually as a result of a dual water so as to provide protection from condition of loss of brush cover, and temporary flooding. the subsequent accumulation of water Levee System means a flood protection on the ground preceded by a period of system which consists of a levee, or unusually heavy or sustained rain. A levees, and associated structures, such mudslide (i.e., mudflow) may occur as a as closure and drainage devices, which distinct phenomenon while a landslide are constructed and operated in accord- is in progress, and will be recognized as ance with sound engineering practices. such by the Administrator only if the Lowest Floor means the lowest floor mudflow, and not the landslide, is the of the lowest enclosed area (including proximate cause of damage that oc- basement). An unfinished or flood re- curs. sistant enclosure, usable solely for parking of vehicles, building access or Mudslide (i.e., mudflow) area manage- storage in an area other than a basement means the operation of an overall ment area is not considered a build- program of corrective and preventive ing’s lowest floor; Provided, that such measures for reducing mudslide (i.e., enclosure is not built so as to render mudflow) damage, including but not the structure in violation of the appli- limited to emergency preparedness cable non-elevation design require- plans, mudslide control works, and ments of § 60.3. flood plain management regulations. Mangrove stand means an assemblage Mudslide (i.e., mudflow) prone area of mangrove trees which are mostly means an area with land surfaces and low trees noted for a copious develop- slopes of unconsolidated material ment of interlacing adventitious roots where the history, geology and climate above the ground and which contain indicate a potential for mudflow. one or more of the following species: New construction means, for the pur- Black mangrove (Avicennia Nitida); poses of determining insurance rates, red mangrove (Rhizophora Mangle); structures for which the ‘‘start of con- white mangrove (Languncularia struction’’ commenced on or after the Racemosa); and buttonwood effective date of an initial FIRM or (Conocarpus Erecta). after December 31, 1974, whichever is Manufactured home means a struc- later, and includes any subsequent im- ture, transportable in one or more sec- provements to such structures. For tions, which is built on a permanent floodplain management purposes, new chassis and is designed for use with or construction means structures for which without a permanent foundation when the start of construction commenced on attached to the required utilities. The or after the effective date of a flood- term ‘‘manufactured home’’ does not plain management regulation adopted include a ‘‘recreational vehicle’’. by a community and includes any sub- Manufactured home park or subdivi- sequent improvements to such struc- sion’’ means a parcel (or contiguous tures.

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New manufactured home park or sub- Project cost means the total financial division means a manufactured home cost of a flood protection system (in- park or subdivision for which the cluding design, land acquisition, con- construciton of facilities for servicing struction, fees, overhead, and profits), the lots on which the manufactured unless the Federal Insurance Adminis- homes are to be affixed (including at a trator determines a given ‘‘cost’’ not to minimum, the installation of utilities, be a part of such project cost. the construction of streets, and either Recreational vehicle means a vehicle final site grading or the pouring of con- which is: crete pads) is completed on or after the (a) Built on a single chassis; effective date of floodplain manage- (b) 400 square feet or less when meas- ment regulations adopted by a commu- ured at the largest horizontal projec- nity. tion; 100-year flood see base flood. (c) Designed to be self-propelled or Participating community, also known permanently towable by a light duty as an eligible community, means a com- truck; and munity in which the Administrator has (d) Designed primarily not for use as authorized the sale of flood insurance. a permanent dwelling but as temporary Person includes any individual or living quarters for recreational, camp- group of individuals, corporation, part- ing, travel, or seasonal use. Reference feature is the receding edge nership, association, or any other enti- of a bluff or eroding frontal dune, or if ty, including State and local govern- such a feature is not present, the nor- ments and agencies. mal high-water line or the seaward line means the Standard Flood In- Policy of permanent vegetation if a high- surance Policy. water line cannot be identified. Premium means the total premium Regular Program means the Program payable by the insured for the coverage authorized by the Act under which risk or coverages provided under the policy. premium rates are required for the The calculation of the premium may be first half of available coverage (also based upon either chargeable rates or known as ‘‘first layer’’ coverage) for all risk premium rates, or a combination new construction and substantial im- of both. provements started on or after the ef- Primary frontal dune means a contin- fective date of the FIRM, or after De- uous or nearly continuous mound or cember 31, 1974, for FIRM’s effective on ridge of sand with relatively steep sea- or before that date. All buildings, the ward and landward slopes immediately construction of which started before landward and adjacent to the beach the effective date of the FIRM, or be- and subject to erosion and overtopping fore January 1, 1975, for FIRMs effec- from high tides and waves during tive before that date, are eligible for major coastal storms. The inland limit first layer coverage at either subsidized of the primary frontal dune occurs at rates or risk premium rates, whichever the point where there is a distinct are lower. Regardless of date of con- change from a relatively steep slope to struction, risk premium rates are al- a relatively mild slope. ways required for the second layer cov- Principally above ground means that erage and such coverage is offered only at least 51 percent of the actual cash after the Administrator has completed value of the structure, less land value, a risk study for the community. is above ground. Regulatory floodway means the chan- Program means the National Flood nel of a river or other watercourse and Insurance Program authorized by 42 the adjacent land areas that must be U.S.C. 4001 through 4128. reserved in order to discharge the base Program deficiency means a defect in a flood without cumulatively increasing community’s flood plain management the water surface elevation more than regulations or administrative proce- a designated height. dures that impairs effective implemen- Remedy a violation means to bring the tation of those flood plain management structure or other development into regulations or of the standards in compliance with State or local flood §§ 60.3, 60.4, 60.5, or 60.6. plain management regulations, or, if

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this is not possible, to reduce the im- Standard Flood Insurance Policy pacts of its noncompliance. Ways that means the flood insurance policy issued impacts may be reduced include pro- by the Federal Insurance Adminis- tecting the structure or other affected trator, or an insurer pursuant to an ar- development from flood damages, im- rangement with the Administrator pur- plementing the enforcement provisions suant to Federal statutes and regula- of the ordinance or otherwise deterring tions. future similar violations, or reducing Start of Construction (for other than Federal financial exposure with regard new construction or substantial im- to the structure or other development. provements under the Coastal Barrier Risk premium rates mean those rates Resources Act (Pub. L. 97–348)), in- established by the Administrator pur- cludes substantial improvement, and suant to individual community studies means the date the building permit was and investigations which are under- issued, provided the actual start of taken to provide flood insurance in ac- construction, repair, reconstruction, cordance with section 1307 of the Act rehabilitation, addition placement, or and the accepted actuarial principles. other improvement was within 180 days ‘‘Risk premium rates’’ include provi- of the permit date. The actual start sions for operating costs and allow- means either the first placement of ances. permanent construction of a structure Riverine means relating to, formed on a site, such as the pouring of slab or by, or resembling a river (including footings, the installation of piles, the tributaries), stream, brook, etc. construction of columns, or any work Sand dunes mean naturally occurring beyond the stage of excavation; or the accumulations of sand in ridges or placement of a manufactured home on mounds landward of the beach. a foundation. Permanent construction Scientifically incorrect. The method- does not include land preparation, such ology(ies) and/or assumptions which as clearing, grading and filling; nor have been utilized are inappropriate for does it include the installation of the physical processes being evaluated streets and/or walkways; nor does it in- or are otherwise erroneous. clude excavation for a basement, foot- Second layer coverage means an addi- ings, piers, or foundations or the erec- tional limit of coverage equal to the tion of temporary forms; nor does it in- amounts made available under the clude the installation on the property Emergency Program, and made avail- of accessory buildings, such as garages able under the Regular Program. or sheds not occupied as dwelling units Servicing company means a corpora- or not part of the main structure. For tion, partnership, association, or any a substantial improvement, the actual other organized entity which contracts start of construction means the first with the Federal Insurance Adminis- alteration of any wall, ceiling, floor, or tration to service insurance policies other structural part of a building, under the National Flood Insurance whether or not that alteration affects Program for a particular area. the external dimensions of the build- Sheet flow area— see area of shallow ing. flooding. State means any State, the District of 60-year setback means a distance Columbia, the territories and posses- equal to 60 times the average annual sions of the United States, the Com- long term recession rate at a site, monwealth of Puerto Rico, and the measured from the reference feature. Trust Territory of the Pacific Islands. Special flood hazard area— see ‘‘area State coordinating agency means the of special flood hazard’’. agency of the state government, or Special hazard area means an area other office designated by the Governor having special flood, mudslide (i.e., of the state or by state statute at the mudflow), or flood-related erosion haz- request of the Administrator to assist ards, and shown on an FHBM or FIRM in the implementation of the National as Zone A, AO, A1–30, AE, AR, AR/A1– Flood Insurance Program in that state. 30, AR/AE, AR/AO, AR/AH, AR/A, A99, Storm cellar means a space below AH, VO, V1–30, VE, V, M, or E. grade used to accommodate occupants

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of the structure and emergency sup- safety code specifications which have plies as a means of temporary shelter been identified by the local code en- against severe tornado or similar wind forcement official and which are the storm activity. minimum necessary to assure safe liv- Structure means, for floodplain man- ing conditions or agement purposes, a walled and roofed (2) Any alteration of a ‘‘historic building, including a gas or liquid stor- structure’’, provided that the alter- age tank, that is principally above ation will not preclude the structure’s ground, as well as a manufactured continued designation as a ‘‘historic home. Structure, for insurance pur- structure’’. poses, means: 30-year setback means a distance (1) A building with two or more out- equal to 30 times the average annual side rigid walls and a fully secured long term recession rate at a site, roof, that is affixed to a permanent measured from the reference feature. site; (2) A manufactured home (‘‘a manu- Technically incorrect. The method- factured home,’’ also known as a mo- ology(ies) utilized has been erroneously bile home, is a structure: built on a applied due to mathematical or meas- permanent chassis, transported to its urement error, changed physical condi- site in one or more sections, and af- tions, or insufficient quantity or qual- fixed to a permanent foundation); or ity of input data. (3) A travel trailer without wheels, V Zone—see ‘‘coastal high hazard built on a chassis and affixed to a per- area.’’ manent foundation, that is regulated Variance means a grant of relief by a under the community’s floodplain man- community from the terms of a flood agement and building ordinances or plain management regulation. laws. Violation means the failure of a struc- For the latter purpose, ‘‘structure’’ ture or other development to be fully does not mean a recreational vehicle or compliant with the community’s flood a park trailer or other similar vehicle, plain management regulations. A except as described in paragraph (3) of structure or other development with- this definition, or a gas or liquid stor- out the elevation certificate, other cer- age tank. tifications, or other evidence of com- Subsidized rates mean the rates estab- pliance required in § 60.3(b)(5), (c)(4), lished by the Administrator involving (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5) is in the aggregate a subsidization by the presumed to be in violation until such Federal Government. time as that documentation is pro- Substantial damage means damage of vided. any origin sustained by a structure Water surface elevation means the whereby the cost of restoring the height, in relation to the National Geo- structure to its before damaged condi- detic Vertical Datum (NGVD) of 1929, tion would equal or exceed 50 percent (or other datum, where specified) of of the market value of the structure floods of various magnitudes and fre- before the damage occurred. quencies in the flood plains of coastal Substantial improvement means any re- or riverine areas. construction, rehabilitation, addition, Zone of imminent collapse means an or other improvement of a structure, area subject to erosion adjacent to the the cost of which equals or exceeds 50 shoreline of an ocean, bay, or lake and percent of the market value of the within a distance equal to 10 feet plus structure before the ‘‘start of construc- 5 times the average annual long-term tion’’ of the improvement. This term erosion rate for the site, measured includes structures which have in- from the reference feature. curred ‘‘substantial damage’’, regardless of the actual repair work per- [41 FR 46968, Oct. 26, 1976] formed. The term does not, however, EDITORIAL NOTE: For FEDERAL REGISTER ci- include either: tations affecting § 59.1, see the List of CFR (1) Any project for improvement of a Sections Affected, which appears in the structure to correct existing violations Finding Aids section of the printed volume of state or local health, sanitary, or and on GPO access.

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§ 59.2 Description of program. related erosion areas. Those applicable (a) The National Flood Insurance Act requirements and standards are based of 1968 was enacted by title XIII of the on the amount of technical informa- Housing and Urban Development Act of tion available to the community. 1968 (Pub. L. 90–448, August 1, 1968) to [41 FR 46968, Oct. 26, 1976, as amended at 43 provide previously unavailable flood FR 7140, Feb. 17, 1978. Redesignated at 44 FR insurance protection to property own- 31177, May 31, 1979, and amended at 48 FR ers in flood-prone areas. Mudslide (as 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] defined in § 59.1) protection was added to the Program by the Housing and § 59.3 Emergency program. Urban Development Act of 1969 (Pub. L. The 1968 Act required a risk study to 91–152, December 24, 1969). Flood-re- be undertaken for each community be- lated erosion (as defined in § 59.1) pro- fore it could become eligible for the tection was added to the Program by sale of flood insurance. Since this re- the Flood Disaster Protection Act of quirement resulted in a delay in pro- 1973 (Pub. L. 93–234, December 31, 1973). viding insurance, the Congress, in sec- The Flood Disaster Protection Act of tion 408 of the Housing and Urban De- 1973 requires the purchase of flood in- velopment Act of 1969 (Pub. L. 91–152, surance on and after March 2, 1974, as a December 24, 1969), established an condition of receiving any form of Fed- Emergency Flood Insurance Program eral or federally-related financial as- as a new section 1336 of the National sistance for acquisition or construction Flood Insurance Act (42 U.S.C. 4056) to purposes with respect to insurable permit the early sale of insurance in buildings and mobile homes within an flood-prone communities. The emer- identified special flood, mudslide (i.e., gency program does not affect the re- mudflow), or flood-related erosion haz- quirement that a community must ard area that is located within any adopt adequate flood plain manage- community participating in the Pro- ment regulations pursuant to part 60 of gram. The Act also requires that on this subchapter but permits insurance and after July 1, 1975, or one year after to be sold before a study is conducted a community has been formally noti- to determine risk premium rates for fied by the Administrator of its identi- the community. The program still re- fication as community containing one quires upon the effective date of a or more special flood, mudslide (i.e., FIRM the charging of risk premium mudflow), or flood-related erosion haz- rates for all new construction and sub- ard areas, no such Federal financial as- stantial improvements and for higher sistance, shall be provided within such limits of coverage for existing struc- an area unless the community in which tures. the area is located is then participating in the Program, subject to cer- [43 FR 7140, Feb. 17, 1978. Redesignated at 44 tain exceptions. See FIA published FR 31177, May 31, 1979, and amended at 48 FR Guidelines at § 59.4(c). 44543, Sept. 29, 1983] (b) To qualify for the sale of feder- § 59.4 References. ally-subsidized flood insurance a community must adopt and submit to the (a) The following are statutory ref- Administrator as part of its applica- erences for the National Flood Insur- tion, flood plain management regula- ance Program, under which these regu- tions, satisfying at a minimum the cri- lations are issued: teria set forth at part 60 of this sub- (1) National Flood Insurance Act of chapter, designed to reduce or avoid fu- 1968 (title XIII of the Housing and ture flood, mudslide (i.e., mudflow) or Urban Development Act of 1968), Pub. flood-related erosion damages. These L. 90–448, approved August 1, 1968, 42 regulations must include effective en- U.S.C. 4001 et seq. forcement provisions. (2) Housing and Urban Development (c) Minimum requirements for ade- Act of 1969 (Pub. L. 91–152, approved De- quate flood plain management regula- cember 24, 1969). tions are set forth in § 60.3 for flood- (3) Flood Disaster Protection Act of prone areas, in § 60.4 for mudslide (i.e., 1973 (87 Stat. 980), Public Law 93–234, mudflow) areas and in § 60.5 for flood- approved December 31, 1973.

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(4) Section 816 of the Housing and ance under section 102 of the Flood Dis- Community Development Act of 1974 aster Protection Act of 1973: Manda- (87 Stat. 975), Public Law 93–383, ap- tory Purchase of Flood Insurance proved August 22, 1974. Guidelines (54 FR 29666–29695, July 13, (5) Public Law 5–128 (effective Octo- 1989). ber 12, 1977). (6) The above statutes are included in [41 FR 46968, Oct. 26, 1976, as amended at 43 FR 7140, Feb. 17, 1978. Redesignated at 44 FR 42 U.S.C. 4001 et seq. 31177, May 31, 1979, and amended at 57 FR (b) The following are references rel- 19540, May 7, 1992] evant to the National Flood Insurance Program: (1) Executive Order 11988 (Floodplain Subpart B—Eligibility Requirements Management, dated May 24, 1977 (42 FR § 59.21 Purpose of subpart. 26951, May 25, 1977)). (2) The Flood Control Act of 1960 This subpart lists actions that must (Pub. L. 86–645). be taken by a community to become el- (3) Title II, section 314 of title III and igible and to remain eligible for the section 406 of title IV of the Disaster Program. Relief Act of 1974 (Pub. L. 93–288). [41 FR 46968, Oct. 26, 1976. Redesignated at 44 (4) Coastal Zone Management Act FR 31177, May 31, 1979] (Pub. L. 92–583), as amended Public Law 94–370. § 59.22 Prerequisites for the sale of (5) Water Resources Planning Act flood insurance. (Pub. L. 89–90), as amended Public Law (a) To qualify for flood insurance 94–112 (October 16, 1975). availability a community shall apply (6) Title I, National Environmental for the entire area within its jurisdic- Policy Act (Pub. L. 91–190). tion, and shall submit: (7) Land and Water Conservation Fund Act (Pub. L. 89–578), and subse- (1) Copies of legislative and executive quent amendments thereto. actions indicating a local need for (8) Water Resources Council, Prin- flood insurance and an explicit desire cipals and Standards for Planning, to participate in the National Flood In- Water and Related Land Resources (38 surance Program; FR 24778–24869, September 10, 1973). (2) Citations to State and local stat- (9) Executive Order 11593 (Protection utes and ordinances authorizing ac- and Enchancement of the Cultural En- tions regulating land use and copies of vironment), dated May 13, 1971 (36 FR the local laws and regulations cited; 8921, May 15, 1971). (3) A copy of the flood plain manage- (10) 89th Cong., 2nd Session, H.D. 465. ment regulations the community has (11) Required land use element for adopted to meet the requirements of comprehensive planning assistance §§ 60.3, 60.4 and/or § 60.5 of this sub- under section 701 of the Housing Act of chapter. This submission shall include 1954, as amended by the Housing and copies of any zoning, building, and sub- Community Development Act of 1974 division regulations, health codes, spe- (24 CFR 600.72). cial purpose ordinances (such as a flood (12) Executive Order 11990 (Protection plain ordinance, grading ordinance, or of Wetlands, dated May 24, 1977 (42 FR flood-related erosion control ordi- 26951, May 25, 1977)). nance), and any other corrective and (13) Water Resources Council (Guid- preventive measures enacted to reduce ance for Floodplain Management) (42 or prevent flood, mudslide (i.e., mud- FR 52590, September 30, 1977). flow) or flood-related erosion damage; (14) Unified National Program for (4) A list of the incorporated commu- Floodplain Management of the United nities within the applicant’s bound- States Water Resources Council, July aries; 1976. (5) Estimates relating to the commu- (c) The following reference guidelines nity as a whole and to the flood, represent the views of the Federal In- mudslide (i.e., mudflow) and flood-re- surance Administration with respect to lated erosion prone areas concerning: the mandatory purchase of flood insur- (i) Population;

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(ii) Number of one to four family map, and identify flood plain, mudslide residences; (i.e., mudflow) or flood-related erosion (iii) Number of small businesses; and areas, and cooperate with neighboring (iv) Number of all other structures. communities with respect to the man- (6) Address of a local repository, such agement of adjoining flood plain, mud- as a municipal building, where the slide (i.e., mudflow) and/or flood-re- Flood Hazard Boundary Maps (FHBM’s) lated erosion areas in order to prevent and Flood Insurance Rate Maps aggravation of existing hazards; (FIRM’s) will be made available for (v) Upon occurrence, notify the Ad- public inspection; ministrator in writing whenever the (7) A summary of any State or Fed- boundaries of the community have eral activities with respect to flood been modified by annexation or the plain, mudslide (i.e., mudflow) or flood- community has otherwise assumed or related erosion area management with- no longer has authority to adopt and in the community, such as federally- enforce flood plain management regu- funded flood control projects and lations for a particular area. In order State-administered flood plain man- that all FHBM’s and FIRM’s accu- agement regulations; rately represent the community’s (8) A commitment to recognize and bound aries, include within such notifi- duly evaluate flood, mudslide (i.e., cation a copy of a map of the commu- mudflow) and/or flood-related erosion nity suitable for reproduction, clearly hazards in all official actions in the delineating the new corporate limits or areas having special flood, mudslide new area for which the community has (i.e., mudflow) and/or flood-related ero- assumed or relinquished flood plain sion hazards and to take such other of- management regulatory authority. ficial action reasonably necessary to (b) An applicant shall legislatively: carry out the objectives of the pro- (1) Appoint or designate the agency gram; and or official with the responsibility, au- (9) A commitment to: thority, and means to implement the (i) Assist the Administrator at his/ commitments made in paragraph (a) of her request, in his/her delineation of this section, and the limits of the areas having special (2) Designate the official responsible flood, mudslide (i.e., mudflow) or flood- to submit a report to the Adminis- related erosion hazards; trator concerning the community par- (ii) Provide such information con- ticipation in the Program, including, cerning present uses and occupancy of but not limited to the development and the flood plain, mudslide (i.e., mud- implementation of flood plain manage- flow) or flood-related erosion areas as ment regulations. This report shall be the Administrator may request; submitted annually or biennially as de- (iii) Maintain for public inspection termined by the Administrator. and furnish upon request, for the deter- (c) The documents required by para- mination of applicable flood insurance graph (a) of this section and evidence risk premium rates within all areas of the actions required by paragraph having special flood hazards identified (b) of this section shall be submitted to on a FHBM or FIRM, any certificates the Federal Emergency Management of floodproofing, and information on Agency, Washington DC 20472. the elevation (in relation to mean sea level) of the level of the lowest floor [41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979 and amended at 48 FR (including basement) of all new or sub- 29318, June 24, 1983; 48 FR 44543 and 44552, stantially improved structures, and in- Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 49 FR clude whether or not such structures 33656, Aug. 24, 1984; 50 FR 36023, Sept. 4, 1985] contain a basement, and if the structure has been floodproofed, the ele- § 59.23 Priorities for the sale of flood vation (in relation to mean sea level) insurance under the regular pro- to which the structure was gram. floodproofed; Flood-prone, mudslide (i.e., mudflow) (iv) Cooperate with Federal, State, and flood-related erosion prone com- and local agencies and private firms munities are placed on a register of which undertake to study, survey, areas eligible for ratemaking studies

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and then selected from this register for shall provide written notice to the ratemaking studies on the basis of the community and to the state and assure following considerations— publication in the FEDERAL REGISTER (a) Recommendations of State offi- under part 64 of this subchapter of the cials; community’s loss of eligibility for the (b) Location of community and ur- sale of flood insurance, such suspension gency of need for flood insurance; to become effective upon the expira- (c) Population of community and in- tion of the six month period. Should tensity of existing or proposed develop- the community remedy the defect and ment of the flood plain, the mudslide the Administrator receive copies of (i.e., mudflow) and the flood-related adequate flood plain management regu- erosion area; lations within the notice period, the (d) Availability of information on the suspension notice shall be rescinded by community with respect to its flood, the Administrator. If the Adminis- mudslide (i.e., mudflow) and flood-re- trator receives notice from the State lated erosion characteristics and pre- that it has enacted adequate flood vious losses; plain management regulations for the (e) Extent of State and local progress community within the notice period, in flood plain, mudslide (i.e., mudflow) the suspension notice shall be re- area and flood-related erosion area scinded by the Administrator. The management, including adoption of community’s eligibility shall remain flood plain management regulations terminated after suspension until cop- consistent with related ongoing pro- ies of adequate flood plain manage- grams in the area. ment regulations have been received [41 FR 46968, Oct. 26, 1976. Redesignated at 44 and approved by the Administrator. FR 31177, May 31, 1979] (b) A community eligible for the sale of flood insurance which fails to ade- § 59.24 Suspension of community eligi- quately enforce flood plain manage- bility. ment regulations meeting the min- (a) A community eligible for the sale imum requirements set forth in §§ 60.3, of flood insurance shall be subject to 60.4 and/or 60.5 shall be subject to pro- suspension from the Program for fail- bation. Probation shall represent for- ing to submit copies of adequate flood mal notification to the community plain management regulations meeting that the Administrator regards the the minimum requirements of para- community’s flood plain management graphs (b), (c), (d), (e) or (f) of §60.3 or program as not compliant with NFIP paragraph (b) of §60.4 or §60.5, within criteria. Prior to imposing probation, six months from the date the Adminis- the Administrator (1) shall inform the trator provides the data upon which community upon 90 days prior written the flood plain regulations for the ap- notice of the impending probation and plicable paragraph shall be based. of the specific program deficiencies and Where there has not been any submis- violations relative to the failure to en- sion by the community, the Adminis- force, (2) shall, at least 60 days before trator shall notify the community that probation is to begin, issue a press re- 90 days remain in the six month period lease to local media explaining the rea- in order to submit adequate flood plain sons for and the effects of probation, management regulations. Where there and (3) shall, at least 90 days before has been an inadequate submission, the probation is to begin, advise all policy- Administrator shall notify the commu- holders in the community of the im- nity of the specific deficiencies in its pending probation and the additional submitted flood plain management reg- premium that will be charged, as pro- ulations and inform the community of vided in this paragraph, on policies the amount of time remaining within sold or renewed during the period of the six month period. If, subsequently, probation. During this 90-day period copies of adequate flood plain manage- the community shall have the oppor- ment regulations are not received by tunity to avoid probation by dem- the Administrator, no later than 30 onstrating compliance with Program days before the expiration of the origi- requirements, or by correcting Pro- nal six month period the Administrator gram deficiencies and remedying all

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violations to the maximum extent pos- loss of eligibility for the sale of flood sible. If, at the end of the 90-day period, insurance. In the event of impending the Administrator determines that the suspension, the Administrator shall community has failed to do so, the pro- issue a press release to the local media bation shall go into effect. Probation explaining the reasons and effects of may be continued for up to one year the suspension. The community’s eligi- after the community corrects all Pro- bility shall only be reinstated by the gram deficiencies and remedies all vio- Administrator upon his receipt of a lations to the maximum extent pos- local legislative or executive measure sible. Flood insurance may be sold or reaffirming the community’s formal renewed in the community while it is intent to adequately enforce the flood on probation. Where a policy covers plain management requirements of this property located in a community subpart, together with evidence of ac- placed on probation on or after October tion taken by the community to cor- 1, 1986, but prior to October 1, 1992, an rect Program deficiencies and remedy additional premium of $25.00 shall be to the maximum extent possible those charged on each such policy newly violations which caused the suspen- issued or renewed during the one-year sion. In certain cases, the Adminis- period beginning on the date the com- trator, in order to evaluate the community is placed on probation and dur- munity’s performance under the terms ing any successive one-year periods of its submission, may withhold rein- that begin prior to October 1, 1992. statement for a period not to exceed Where a community’s probation begins one year from the date of his receipt of on or after October 1, 1992, the addi- the satisfactory submission or place tional premium described in the pre- the community on probation as pro- ceding sentence shall be $50.00, which vided for in paragraph (b) of this sec- shall also be charged during any suc- tion. cessive one-year periods during which the community remains on probation (d) A community eligible for the sale for any part thereof. This $50.00 addi- of flood insurance which repeals its tional premium shall further be flood plain management regulations, charged during any successive one-year allows its regulations to lapse, or periods that begin on or after October amends its regulations so that they no 1, 1992, where the preceding one-year longer meet the minimum require- probation period began prior to Octo- ments set forth in §§ 60.3, 60.4 and/or ber 1, 1992. 60.5 shall be suspended from the Pro- (c) A community eligible for the sale gram. If a community is to be sus- of flood insurance which fails to ade- pended, the Administrator shall inform quately enforce its flood plain manage- it upon 30 days prior written notice and ment regulations meeting the min- upon publication in the FEDERAL REG- imum requirements set forth in §§ 60.3, ISTER under part 64 of this subchapter 60.4 and/or 60.5 and does not correct its of its loss of eligibility for the sale of Program deficiencies and remedy all flood insurance. The community eligi- violations to the maximum extent pos- bility shall remain terminated after sible in accordance with compliance suspension until copies of adequate deadlines established during a period of flood plain management regulations probation shall be subject to suspen- have been received and approved by the sion of its Program eligibility. Under Administrator. such circumstances, the Administrator (e) A community eligible for the sale shall grant the community 30 days in of flood insurance may withdraw from which to show cause why it should not the Program by submitting to the Ad- be suspended. The Administrator may ministrator a copy of a legislative ac- conduct a hearing, written or oral, be- tion that explicitly states its desire to fore commencing suspensive action. If withdraw from the National Flood In- a community is to be suspended, the surance Program. Upon receipt of a Administrator shall inform it upon 30 certified copy of a final legislative ac- days prior written notice and upon tion, the Administrator shall withdraw publication in the FEDERAL REGISTER the community from the Program and under part 64 of this subchapter of its publish in the FEDERAL REGISTER under

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part 64 of this subchapter its loss of eli- pose of this inspection procedure is to gibility for the sale of flood insurance. provide the communities participating A community that has withdrawn from in the pilot inspection procedure with the Program may be reinstated if its an additional means to identify wheth- submits the application materials spec- er structures built in Special Flood ified in § 59.22(a). Hazard Areas (SFHAs) after the effec- (f) If during a period of ineligibility tive date of the initial Flood Insurance under paragraphs (a), (d), or (e) of this Rate Map (FIRM) comply with the section, a community has permitted community’s floodplain management actions to take place that have aggra- regulations. The pilot inspection proce- vated existing flood plain, mudslide dure will also assist FEMA in verifying (i.e., mudflow) and/or flood related ero- that structures insured under the Na- sion hazards, the Administrator may tional Flood Insurance Program’s withhold reinstatement until the com- Standard Flood Insurance Policy are munity submits evidence that it has properly rated. FEMA will publish no- taken action to remedy to the max- tices in the FEDERAL REGISTER when imum extent possible the increased communities in Monroe County incor- hazards. The Administrator may also porate, agree to implement the pilot place the reinstated community on inspection procedure, and become eligi- probation as provided for in paragraph ble for the sale of flood insurance. (b) of this section. (g) The Administrator shall promptly (b) Procedures and requirements for im- notify the servicing company and any plementation. Each community must es- insurers issuing flood insurance pursu- tablish procedures and requirements ant to an arrangement with the Ad- for implementing the pilot inspection ministrator of those communities procedure consistent with the criteria whose eligibility has been suspended or established in this section. which have withdrawn from the pro- (c) Inspection procedure—(1) Starting gram. Flood insurance shall not be sold and termination dates. The Associate Di- or renewed in those communities. Poli- rector for Mitigation and the Federal cies sold or renewed within a commu- Insurance Administrator will establish nity during a period of ineligibility are the starting date and the termination deemed to be voidable by the Adminis- date for implementing the pilot inspec- trator whether or not the parties to tion procedure upon the recommenda- sale or renewal had actual notice of the tion of the Regional Director. The Re- ineligibility. gional Director will consult with each community. [41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, and amended at 48 FR (2) Extension. The Associate Director 44543 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. for Mitigation and the Federal Insur- 8, 1984; 50 FR 36023, Sept. 4, 1985; 57 FR 19540, ance Administrator may extend the May 7, 1992; 59 FR 53598, Oct. 25, 1994; 62 FR implementation of the inspection pro- 55715, Oct. 27, 1997] cedure with a new termination date upon the recommendation of the Re- Subpart C—Pilot Inspection gional Director. The Regional Director Program will consult with the community. An extension will be granted based on good § 59.30 A pilot inspection procedure. cause. (a) Purpose. This section sets forth (3) Notices. Before the starting date of the criteria for implementing a pilot the inspection procedure, each commu- inspection procedure in Monroe County nity must publish a notice in a promi- and the Village of Islamorada, Florida. nent local newspaper and publish other Areas within Monroe County that be- notices as appropriate. The Associate come communities by incorporating on Director for Mitigation and the Federal or after January 1, 1999, are required to Insurance Administrator will publish a implement the pilot inspection proce- notice in the FEDERAL REGISTER that dure as a condition of participating in the community will undertake an in- the NIP. The criteria will also be used spection procedure. Published notices to implement the pilot inspection pro- will include the purpose for imple- cedure in these communities. The pur- menting the inspection procedure and

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the effective period of time that the in- tion report the insurer will not renew spection procedure will cover. the policy. (4) Community reviews. The commu- (8) Community responsibilities. For in- nities participating in the pilot inspec- sured post-FIRM buildings that the tion procedure must review a list of all community inspects and determines to pre-FIRM and post-FIRM flood insur- violate the community’s floodplain ance policies in SFHAs to confirm that management regulations, the commu- the start of construction or substantial nity must demonstrate to FEMA that improvement of insured pre-FIRM the community is undertaking meas- buildings occurred on or before Decem- ures to remedy the violation to the ber 31, 1974, and to identify possible maximum extent possible. Nothing in violations of insured post-FIRM build- this section modifies the community’s ings. The community will provide to responsibility under the NFIP to en- FEMA a list of insured buildings incor- force floodplain management regula- rectly rated as pre-FIRM and a list of tions adequately that meet the min- insured post-FIRM buildings that the imum requirements in § 60.3 for all new community identifies as possible viola- construction and substantial improve- tions. ments within the community’s SFHAs. (5) SFIP endorsement. In the commu- The community’s responsibility also nities that undertake the pilot inspec- includes the insured buildings where tion procedure, all new and renewed the policyholder did not obtain an in- flood insurance policies that become spection report, and non-insured build- effective on and after the date that we ings that this procedure does not cover. and the community establish for the (d) Restoration of flood insurance cov- start of the inspection procedure will erage. Insurers will not provide new contain an endorsement to the Stand- flood insurance on any building if a ard Flood Insurance Policy that an in- property owner does not obtain a com- spection may be necessary before a munity inspection report or if the subsequent policy renewal [see Part 61, property owner obtains a community Appendices A(4), (5), and (6)]. inspection report but does not submit (6) Notice from insurer. For a building the report with the renewal premium identified as a possible violation under payment. Flood insurance policies sold paragraph (c)(4) of this section, the in- on a building ineligible in accordance surer will send a notice to the policy- with paragraph (c)(6)(ii) of this section holder that an inspection is necessary are void under the Standard Flood In- in order to renew the policy and that surance Policy inspection endorse- the policyholder must submit a comments [44 CFR Part 61, Appendices munity inspection report as part of the (A)(4), (A)(5), and (A)(6)]. When the policy renewal process, which includes property owner applies for a flood in- the payment of the premium. The insurance policy and submits a com- surer will send this notice about 6 pleted community inspection report by months before the Standard Flood In- the community with an application surance Policy expires. and renewal premium payment, the in- (7) Conditions for renewal. If a policy- surer will issue a flood insurance pol- holder receives a notice under para- icy. graph (c)(6) of this section that an inspection is necessary in order to renew (Approved by the Office of Management and the Standard Flood Insurance Policy Budget under Control Number 3067–0275) the following conditions apply: [65 FR 39748, June 27, 2000, as amended at 67 (i) If the policyholder obtains an in- FR 10633, Mar. 8, 2002] spection from the community and the policyholder sends the community in- PART 60—CRITERIA FOR LAND spection report to the insurer as part MANAGEMENT AND USE of the renewal process, which includes the payment of the premium, the in- Subpart A—Requirements for Flood Plain surer will renew the policy and will Management Regulations verify the flood insurance rate, or (ii) If the policyholder does not ob- Sec. tain and submit a community inspec- 60.1 Purpose of subpart.

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60.2 Minimum compliance with flood plain nity’s flood plain management regula- management criteria. tions. These regulations must be le- 60.3 Flood plain management criteria for gally-enforceable, applied uniformly flood-prone areas. throughout the community to all pri- 60.4 Flood plain management criteria for mudslide (i.e., mudflow)-prone areas. vately and publicly owned land within 60.5 Flood plain management criteria for flood-prone, mudslide (i.e., mudflow) or flood-related erosion-prone areas. flood-related erosion areas, and the 60.6 Variances and exceptions. community must provide that the reg- 60.7 Revisions of criteria for flood plain ulations take precedence over any less management regulations. restrictive conflicting local laws, ordi- 60.8 Definitions. nances or codes. Except as otherwise Subpart B—Requirements for State Flood provided in § 60.6, the adequacy of such Plain Management Regulations regulations shall be determined on the basis of the standards set forth in § 60.3 60.11 Purpose of this subpart. for flood-prone areas, § 60.4 for mudslide 60.12 Flood plain management criteria for areas and § 60.5 for flood-related erosion State-owned properties in special hazard areas. areas. (c) Nothing in this subpart shall be 60.13 Noncompliance. construed as modifying or replacing Subpart C—Additional Considerations in the general requirement that all eligi- Managing Flood-Prone, Mudslide (i.e., ble communities must take into ac- Mudflow)-Prone, and Flood-Related count flood, mudslide (i.e., mudflow) Erosion-Prone Areas and flood-related erosion hazards, to the extent that they are known, in all 60.21 Purpose of this subpart. official actions relating to land man- 60.22 Planning considerations for flood- agement and use. prone areas. 60.23 Planning considerations for mudslide (d) The criteria set forth in this sub- (i.e., mudflow)-prone areas. part are minimum standards for the 60.24 Planning considerations for flood-re- adoption of flood plain management lated erosion-prone areas. regulations by flood-prone, mudslide 60.25 Designation, duties, and responsibil- (i.e., mudflow)-prone and flood-related ities of State Coordinating Agencies. erosion-prone communities. Any com- 60.26 Local coordination. munity may exceed the minimum cri- AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- teria under this part by adopting more nization Plan No. 3 of 1978, 43 FR 41943, 3 comprehensive flood plain management CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, regulations utilizing the standards 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. such as contained in subpart C of this SOURCE: 41 FR 46975, Oct. 26, 1976, unless part. In some instances, community of- otherwise noted. Redesignated at 44 FR 31177, ficials may have access to information May 31, 1979. or knowledge of conditions that require, particularly for human safety, Subpart A—Requirements for higher standards than the minimum Flood Plain Management criteria set forth in subpart A of this Regulations part. Therefore, any flood plain management regulations adopted by a § 60.1 Purpose of subpart. State or a community which are more (a) The Act provides that flood insur- restrictive than the criteria set forth ance shall not be sold or renewed under in this part are encouraged and shall the program within a community, un- take precedence. less the community has adopted ade- [41 FR 46975, Oct. 26, 1976. Redesignated at 44 quate flood plain management regula- FR 31177, May 31, 1979, as amended at 48 FR tions consistent with Federal criteria. 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] Responsibility for establishing such criteria is delegated to the Adminis- § 60.2 Minimum compliance with flood trator. plain management criteria. (b) This subpart sets forth the cri- (a) A flood-prone community apply- teria developed in accordance with the ing for flood insurance eligibility shall Act by which the Administrator will meet the standards of §60.3(a) in order determine the adequacy of a commu- to become eligible if a FHBM has not

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been issued for the community at the ennial report to any State Coordi- time of application. Thereafter, the nating Agency. community will be given a period of six (g) A community shall assure that its months from the date the Adminis- comprehensive plan is consistent with trator provides the data set forth in the flood plain management objectives §60.3(b), (c), (d), (e) or (f), in which to of this part. meet the requirements of the applica- (h) The community shall adopt and ble paragraph. If a community has re- enforce flood plain management regu- ceived a FHBM, but has not yet applied lations based on data provided by the for Program eligibility, the community Administrator. Without prior approval shall apply for eligibility directly of the Administrator, the community under the standards set forth in shall not adopt and enforce flood plain §60.3(b). Thereafter, the community management regulations based upon will be given a period of six months modified data reflecting natural or from the date the Administrator provides the data set forth in §60.3(c), (d), man-made physical changes. (e) or (f) in which to meet the require- [41 FR 46975, Oct. 26, 1976. Redesignated at 44 ments of the applicable paragraph. FR 31177, May 31, 1979, as amended at 48 FR (b) A mudslide (i.e., mudflow)-prone 29318, June 24, 1983; 48 FR 44552, Sept. 29, 1983; community applying for flood insur- 49 FR 4751, Feb. 8, 1984; 50 FR 36024, Sept. 4, ance eligibility shall meet the stand- 1985; 59 FR 53598, Oct. 25, 1994; 62 FR 55716, ards of § 60.4(a) to become eligible. Oct. 27, 1997] Thereafter, the community will be given a period of six months from the § 60.3 Flood plain management criteria date the mudslide (i.e., mudflow) areas for flood-prone areas. having special mudslide hazards are de- The Administrator will provide the lineated in which to meet the require- data upon which flood plain manage- ments of § 60.4(b). ment regulations shall be based. If the (c) A flood-related erosion-prone Administrator has not provided suffi- community applying for flood insur- cient data to furnish a basis for these ance eligibility shall meet the stand- regulations in a particular community, ards of § 60.5(a) to become eligible. the community shall obtain, review Thereafter, the community will be and reasonably utilize data available given a period of six months from the from other Federal, State or other date the flood-related erosion areas sources pending receipt of data from having special erosion hazards are de- the Administrator. However, when spe- lineated in which to meet the require- cial flood hazard area designations and ments of § 60.5(b). water surface elevations have been fur- (d) Communities identified in part 65 nished by the Administrator, they of this subchapter as containing more shall apply. The symbols defining such than one type of hazard (e.g., any com- special flood hazard designations are bination of special flood, mudslide (i.e., set forth in § 64.3 of this subchapter. In mudflow), and flood-related erosion all cases the minimum requirements hazard areas) shall adopt flood plain governing the adequacy of the flood management regulations for each type of hazard consistent with the require- plain management regulations for ments of §§ 60.3, 60.4 and 60.5. flood-prone areas adopted by a par- (e) Local flood plain management ticular community depend on the regulations may be submitted to the amount of technical data formally pro- State Coordinating Agency designated vided to the community by the Admin- pursuant to § 60.25 for its advice and istrator. Minimum standards for com- concurrence. The submission to the munities are as follows: State shall clearly describe proposed (a) When the Administrator has not enforcement procedures. defined the special flood hazard areas (f) The community official respon- within a community, has not provided sible for submitting annual or biennial water surface elevation data, and has reports to the Administrator pursuant not provided sufficient data to identify to § 59.22(b)(2) of this subchapter shall the floodway or coastal high hazard also submit copies of each annual or bi- area, but the community has indicated

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the presence of such hazards by sub- (5) Require within flood-prone areas mitting an application to participate new and replacement water supply sys- in the Program, the community shall: tems to be designed to minimize or (1) Require permits for all proposed eliminate infiltration of flood waters construction or other development in into the systems; and the community, including the place- (6) Require within flood-prone areas ment of manufactured homes, so that (i) new and replacement sanitary sew- it may determine whether such con- age systems to be designed to minimize struction or other development is pro- or eliminate infiltration of flood wa- posed within flood-prone areas; ters into the systems and discharges (2) Review proposed development to from the systems into flood waters and assure that all necessary permits have (ii) onsite waste disposal systems to be been received from those governmental located to avoid impairment to them agencies from which approval is re- or contamination from them during quired by Federal or State law, includ- flooding. ing section 404 of the Federal Water (b) When the Administrator has des- Pollution Control Act Amendments of ignated areas of special flood hazards 1972, 33 U.S.C. 1334; (A zones) by the publication of a com- (3) Review all permit applications to munity’s FHBM or FIRM, but has nei- determine whether proposed building ther produced water surface elevation sites will be reasonably safe from data nor identified a floodway or coast- flooding. If a proposed building site is al high hazard area, the community in a flood-prone area, all new construc- shall: tion and substantial improvements (1) Require permits for all proposed shall (i) be designed (or modified) and construction and other developments adequately anchored to prevent flota- including the placement of manufac- tion, collapse, or lateral movement of tured homes, within Zone A on the the structure resulting from hydro- community’s FHBM or FIRM; dynamic and hydrostatic loads, including the effects of buoyancy, (ii) be con- (2) Require the application of the structed with materials resistant to standards in paragraphs (a) (2), (3), (4), flood damage, (iii) be constructed by (5) and (6) of this section to develop- methods and practices that minimize ment within Zone A on the commu- flood damages, and (iv) be constructed nity’s FHBM or FIRM; with electrical, heating, ventilation, (3) Require that all new subdivision plumbing, and air conditioning equip- proposals and other proposed development and other service facilities that ments (including proposals for manu- are designed and/or located so as to factured home parks and subdivisions) prevent water from entering or accu- greater than 50 lots or 5 acres, which- mulating within the components dur- ever is the lesser, include within such ing conditions of flooding. proposals base flood elevation data; (4) Review subdivision proposals and (4) Obtain, review and reasonably uti- other proposed new development, in- lize any base flood elevation and cluding manufactured home parks or floodway data available from a Fed- subdivisions, to determine whether eral, State, or other source, including such proposals will be reasonably safe data developed pursuant to paragraph from flooding. If a subdivision proposal (b)(3) of this section, as criteria for re- or other proposed new development is quiring that new construction, sub- in a flood-prone area, any such pro- stantial improvements, or other devel- posals shall be reviewed to assure that opment in Zone A on the community’s (i) all such proposals are consistent FHBM or FIRM meet the standards in with the need to minimize flood dam- paragraphs (c)(2), (c)(3), (c)(5), (c)(6), age within the flood-prone area, (ii) all (c)(12), (c)(14), (d)(2) and (d)(3) of this public utilities and facilities, such as section; sewer, gas, electrical, and water sys- (5) Where base flood elevation data tems are located and constructed to are utilized, within Zone A on the com- minimize or eliminate flood damage, munity’s FHBM or FIRM: and (iii) adequate drainage is provided (i) Obtain the elevation (in relation to reduce exposure to flood hazards; to mean sea level) of the lowest floor

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(including basement) of all new and is granted an exception by the Admin- substantially improved structures, and istrator for the allowance of basements (ii) Obtain, if the structure has been in accordance with § 60.6 (b) or (c); floodproofed in accordance with para- (3) Require that all new construction graph (c)(3)(ii) of this section, the ele- and substantial improvements of non- vation (in relation to mean sea level) residential structures within Zones A1– to which the structure was 30, AE and AH zones on the commu- floodproofed, and nity’s firm (i) have the lowest floor (in- (iii) Maintain a record of all such including basement) elevated to or above formation with the official designated the base flood level or, (ii) together by the community under § 59.22 with attendant utility and sanitary fa- (a)(9)(iii); cilities, be designed so that below the (6) Notify, in riverine situations, ad- base flood level the structure is water- jacent communities and the State Co- tight with walls substantially imper- ordinating Office prior to any alter- meable to the passage of water and ation or relocation of a watercourse, with structural components having the and submit copies of such notifications capability of resisting hydrostatic and to the Administrator; hydrodynamic loads and effects of (7) Assure that the flood carrying ca- buoyancy; pacity within the altered or relocated (4) Provide that where a non-residen- portion of any watercourse is main- tial structure is intended to be made tained; watertight below the base flood level, (8) Require that all manufactured (i) a registered professional engineer or homes to be placed within Zone A on a architect shall develop and/or review community’s FHBM or FIRM shall be structural design, specifications, and installed using methods and practices plans for the construction, and shall which minimize flood damage. For the certify that the design and methods of purposes of this requirement, manufac- construction are in accordance with ac- tured homes must be elevated and an- cepted standards of practice for meet- chored to resist flotation, collapse, or ing the applicable provisions of para- lateral movement. Methods of anchor- graph (c)(3)(ii) or (c)(8)(ii) of this sec- ing may include, but are not to be lim- tion, and (ii) a record of such certifi- ited to, use of over-the-top or frame cates which includes the specific ele- ties to ground anchors. This require- vation (in relation to mean sea level) ment is in addition to applicable State to which such structures are and local anchoring requirements for floodproofed shall be maintained with resisting wind forces. the official designated by the commu- (c) When the Administrator has pro- nity under § 59.22(a)(9)(iii); vided a notice of final flood elevations (5) Require, for all new construction for one or more special flood hazard and substantial improvements, that areas on the community’s FIRM and, if fully enclosed areas below the lowest appropriate, has designated other spe- floor that are usable solely for parking cial flood hazard areas without base of vehicles, building access or storage flood elevations on the community’s in an area other than a basement and FIRM, but has not identified a regu- which are subject to flooding shall be latory floodway or coastal high hazard designed to automatically equalize hy- area, the community shall: drostatic flood forces on exterior walls (1) Require the standards of para- by allowing for the entry and exit of graph (b) of this section within all A1– floodwaters. Designs for meeting this 30 zones, AE zones, A zones, AH zones, requirement must either be certified and AO zones, on the community’s by a registered professional engineer or FIRM; architect or meet or exceed the fol- (2) Require that all new construction lowing minimum criteria: A minimum and substantial improvements of resi- of two openings having a total net area dential structures within Zones A1–30, of not less than one square inch for AE and AH zones on the community’s every square foot of enclosed area sub- FIRM have the lowest floor (including ject to flooding shall be provided. The basement) elevated to or above the bottom of all openings shall be no high- base flood level, unless the community er than one foot above grade. Openings

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may be equipped with screens, louvers, ments, or other development (including valves, or other coverings or devices fill) shall be permitted within Zones provided that they permit the auto- A1–30 and AE on the community’s matic entry and exit of floodwaters. FIRM, unless it is demonstrated that (6) Require that manufactured homes the cumulative effect of the proposed that are placed or substantially im- development, when combined with all proved within Zones A1–30, AH, and AE other existing and anticipated develop- on the community’s FIRM on sites ment, will not increase the water sur- (i) Outside of a manufactured home face elevation of the base flood more park or subdivision, than one foot at any point within the (ii) In a new manufactured home community. park or subdivision, (11) Require within Zones AH and AO, (iii) In an expansion to an existing adequate drainage paths around struc- manufactured home park or subdivi- tures on slopes, to guide floodwaters sion, or around and away from proposed struc- (iv) In an existing manufactured tures. home park or subdivision on which a (12) Require that manufactured manufactured home has incurred ‘‘sub- homes to be placed or substantially im- stantial damage’’ as the result of a proved on sites in an existing manufac- flood, be elevated on a permanent foun- tured home park or subdivision within dation such that the lowest floor of the Zones A–1–30, AH, and AE on the com- manufactured home is elevated to or munity’s FIRM that are not subject to above the base flood elevation and be the provisions of paragraph (c)(6) of securely anchored to an adequately an- this section be elevated so that either chored foundation system to resist (i) The lowest floor of the manufac- floatation collapse and lateral move- tured home is at or above the base ment. flood elevation, or (7) Require within any AO zone on (ii) The manufactured home chassis the community’s FIRM that all new is supported by reinforced piers or construction and substantial improve- other foundation elements of at least ments of residential structures have equivalent strength that are no less the lowest floor (including basement) than 36 inches in height above grade elevated above the highest adjacent and be securely anchored to an ade- grade at least as high as the depth quately anchored foundation system to number specified in feet on the commu- resist floatation, collapse, and lateral nity’s FIRM (at least two feet if no movement. depth number is specified); (13) Notwithstanding any other provi- (8) Require within any AO zone on sions of § 60.3, a community may ap- the community’s FIRM that all new prove certain development in Zones Al– construction and substantial improve- 30, AE, and AH, on the community’s ments of nonresidential structures (i) FIRM which increase the water surface have the lowest floor (including base- elevation of the base flood by more ment) elevated above the highest adja- than one foot, provided that the com- cent grade at least as high as the depth munity first applies for a conditional number specified in feet on the commu- FIRM revision, fulfills the require- nity’s FIRM (at least two feet if no ments for such a revision as estab- depth number is specified), or (ii) to- lished under the provisions of § 65.12, gether with attendant utility and sani- and receives the approval of the Ad- tary facilities be completely ministrator. floodproofed to that level to meet the (14) Require that recreational vehi- floodproofing standard specified in cles placed on sites within Zones A1–30, § 60.3(c)(3)(ii); AH, and AE on the community’s FIRM (9) Require within any A99 zones on a either community’s FIRM the standards of (i) Be on the site for fewer than 180 paragraphs (a)(1) through (a)(4)(i) and consecutive days, (b)(5) through (b)(9) of this section; (ii) Be fully licensed and ready for (10) Require until a regulatory highway use, or floodway is designated, that no new (iii) Meet the permit requirements of construction, substantial improve- paragraph (b)(1) of this section and the

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elevation and anchoring requirements propriate, has designated AH zones, AO for ‘‘manufactured homes’’ in para- zones, A99 zones, and A zones on the graph (c)(6) of this section. community’s FIRM, and has identified A recreational vehicle is ready for on the community’s FIRM coastal high highway use if it is on its wheels or hazard areas by designating Zones V1– jacking system, is attached to the site 30, VE, and/or V, the community shall: only by quick disconnect type utilities (1) Meet the requirements of para- and security devices, and has no per- graphs (c)(1) through (14) of this sec- manently attached additions. tion; (d) When the Administrator has pro- (2) Within Zones V1–30, VE, and V on vided a notice of final base flood ele- a community’s FIRM, (i ) obtain the vations within Zones A1–30 and/or AE elevation (in relation to mean sea on the community’s FIRM and, if ap- level) of the bottom of the lowest propriate, has designated AO zones, AH structural member of the lowest floor zones, A99 zones, and A zones on the (excluding pilings and columns) of all community’s FIRM, and has provided new and substantially improved struc- data from which the community shall tures, and whether or not such struc- designate its regulatory floodway, the tures contain a basement, and (ii) community shall: maintain a record of all such informa- (1) Meet the requirements of para- tion with the official designated by the graphs (c) (1) through (14) of this sec- community under § 59.22(a)(9)(iii); tion; (3) Provide that all new construction (2) Select and adopt a regulatory within Zones V1–30, VE, and V on the floodway based on the principle that community’s FIRM is located landward the area chosen for the regulatory of the reach of mean high tide; floodway must be designed to carry the (4) Provide that all new construction waters of the base flood, without in- and substantial improvements in Zones creasing the water surface elevation of V1–30 and VE, and also Zone V if base that flood more than one foot at any flood elevation data is available, on the point; community’s FIRM, are elevated on (3) Prohibit encroachments, includ- pilings and columns so that (i) the bot- ing fill, new construction, substantial tom of the lowest horizontal structural improvements, and other development member of the lowest floor (excluding within the adopted regulatory the pilings or columns) is elevated to floodway unless it has been dem- or above the base flood level; and (ii) onstrated through hydrologic and hy- the pile or column foundation and draulic analyses performed in accord- structure attached thereto is anchored ance with standard engineering prac- to resist flotation, collapse and lateral tice that the proposed encroachment movement due to the effects of wind would not result in any increase in and water loads acting simultaneously flood levels within the community dur- on all building components. Water ing the occurrence of the base flood loading values used shall be those asso- discharge; ciated with the base flood. Wind load- (4) Notwithstanding any other provi- ing values used shall be those required sions of § 60.3, a community may per- by applicable State or local building mit encroachments within the adopted standards. A registered professional en- regulatory floodway that would result gineer or architect shall develop or rein an increase in base flood elevations, view the structural design, specifica- provided that the community first ap- tions and plans for the construction, plies for a conditional FIRM and and shall certify that the design and floodway revision, fulfills the require- methods of construction to be used are ments for such revisions as established in accordance with accepted standards under the provisions of § 65.12, and re- of practice for meeting the provisions ceives the approval of the Adminis- of paragraphs (e)(4) (i) and (ii) of this trator. section. (e) When the Administrator has pro- (5) Provide that all new construction vided a notice of final base flood ele- and substantial improvements within vations within Zones A1–30 and/or AE Zones V1–30, VE, and V on the commu- on the community’s FIRM and, if ap- nity’s FIRM have the space below the

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lowest floor either free of obstruction (iii) In an expansion to an existing or constructed with non-supporting manufactured home park or subdivi- breakaway walls, open wood lattice- sion, or work, or insect screening intended to (iv) In an existing manufactured collapse under wind and water loads home park or subdivision on which a without causing collapse, displace- manufactured home has incurred ‘‘sub- ment, or other structural damage to stantial damage’’ as the result of a the elevated portion of the building or flood, meet the standards of paragraphs supporting foundation system. For the (e)(2) through (7) of this section and purposes of this section, a breakway that manufactured homes placed or wall shall have a design safe loading re- substantially improved on other sites sistance of not less than 10 and no more in an existing manufactured home park than 20 pounds per square foot. Use of or subdivision within Zones VI–30, V, breakway walls which exceed a design and VE on the community’s FIRM safe loading resistance of 20 pounds per meet the requirements of paragraph square foot (either by design or when (c)(12) of this section. so required by local or State codes) (9) Require that recreational vehicles may be permitted only if a registered placed on sites within Zones V1–30, V, and VE on the community’s FIRM ei- professional engineer or architect cer- ther tifies that the designs proposed meet (i) Be on the site for fewer than 180 the following conditions: consecutive days, (i) Breakaway wall collapse shall re- (ii) Be fully licensed and ready for sult from a water load less than that highway use, or which would occur during the base (iii) Meet the requirements in para- flood; and, graphs (b)(1) and (e) (2) through (7) of (ii) The elevated portion of the build- this section. ing and supporting foundation system A recreational vehicle is ready for shall not be subject to collapse, dis- highway use if it is on its wheels or placement, or other structural damage jacking system, is attached to the site due to the effects of wind and water only by quick disconnect type utilities loads acting simultaneously on all and security devices, and has no per- building components (structural and manently attached additions. non-structural). Water loading values (f) When the Administrator has pro- used shall be those associated with the vided a notice of final base flood ele- base flood. Wind loading values used vations within Zones A1–30 or AE on shall be those required by applicable the community’s FIRM, and, if appro- State or local building standards. priate, has designated AH zones, AO Such enclosed space shall be useable zones, A99 zones, and A zones on the solely for parking of vehicles, building community’s FIRM, and has identified access, or storage. flood protection restoration areas by (6) Prohibit the use of fill for struc- designating Zones AR, AR/A1–30, AR/ tural support of buildings within Zones AE, AR/AH, AR/AO, or AR/A, the com- V1–30, VE, and V on the community’s munity shall: FIRM; (1) Meet the requirements of paragraphs (c)(1) through (14) and (d)(1) (7) Prohibit man-made alteration of through (4) of this section. sand dunes and mangrove stands with- (2) Adopt the official map or legal de- in Zones V1–30, VE, and V on the com- scription of those areas within Zones munity’s FIRM which would increase AR, AR/A1–30, AR/AE, AR/AH, AR/A, or potential flood damage. AR/AO that are designated developed (8) Require that manufactured homes areas as defined in §59.1 in accordance placed or substantially improved with- with the eligibility procedures under in Zones V1–30, V, and VE on the com- §65.14. munity’s FIRM on sites (3) For all new construction of struc- (i) Outside of a manufactured home tures in areas within Zone AR that are park or subdivision, designated as developed areas and in (ii) In a new manufactured home other areas within Zone AR where the park or subdivision, AR flood depth is 5 feet or less:

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(i) Determine the lower of either the ment regulations shall be based. If the AR base flood elevation or the ele- Administrator has not provided suffi- vation that is 3 feet above highest adja- cient data to furnish a basis for these cent grade; and regulations in a particular community, (ii) Using this elevation, require the the community shall obtain, review, standards of paragraphs (c)(1) through and reasonably utilize data available (14) of this section. from other Federal, State or other (4) For all new construction of struc- sources pending receipt of data from tures in those areas within Zone AR the Administrator. However, when spe- that are not designated as developed cial mudslide (i.e., mudflow) hazard areas where the AR flood depth is area designations have been furnished greater than 5 feet: by the Administrator, they shall apply. (i) Determine the AR base flood ele- The symbols defining such special vation; and mudslide (i.e., mudflow) hazard des- (ii) Using that elevation require the ignations are set forth in § 64.3 of this standards of paragraphs (c)(1) through subchapter. In all cases, the minimum (14) of this section. requirements for mudslide (i.e., mud- (5) For all new construction of struc- flow)-prone areas adopted by a par- tures in areas within Zone AR/A1–30, ticular community depend on the AR/AE, AR/AH, AR/AO, and AR/A: amount of technical data provided to (i) Determine the applicable ele- the community by the Administrator. vation for Zone AR from paragraphs Minimum standards for communities (a)(3) and (4) of this section; are as follows: (ii) Determine the base flood ele- (a) When the Administrator has not vation or flood depth for the under- yet identified any area within the com- lying A1–30, AE, AH, AO and A Zone; munity as an area having special and (iii) Using the higher elevation from mudslide (i.e., mudflow) hazards, but paragraphs (a)(5)(i) and (ii) of this sec- the community has indicated the pres- tion require the standards of para- ence of such hazards by submitting an graphs (c)(1) through (14) of this sec- application to participate in the Pro- tion. gram, the community shall (6) For all substantial improvements (1) Require permits for all proposed to existing construction within Zones construction or other development in AR/A1–30, AR/AE, AR/AH, AR/AO, and the community so that it may deter- AR/A: mine whether development is proposed (i) Determine the A1–30 or AE, AH, within mudslide (i.e., mudflow)-prone AO, or A Zone base flood elevation; and areas; (ii) Using this elevation apply the re- (2) Require review of each permit ap- quirements of paragraphs (c)(1) plication to determine whether the through (14) of this section. proposed site and improvements will be (7) Notify the permit applicant that reasonably safe from mudslides (i.e., the area has been designated as an AR, mudflows). Factors to be considered in AR/A1–30, AR/AE, AR/AH, AR/AO, or making such a determination should AR/A Zone and whether the structure include but not be limited to (i) the will be elevated or protected to or type and quality of soils, (ii) any evi- above the AR base flood elevation. dence of ground water or surface water problems, (iii) the depth and quality of [41 FR 46975, Oct. 26, 1976] any fill, (iv) the overall slope of the EDITORIAL NOTE: For FEDERAL REGISTER ci- site, and (v) the weight that any pro- tations affecting § 60.3, see the List of CFR posed structure will impose on the Sections Affected, which appears in the Finding Aids section of the printed volume slope; and on GPO Access. (3) Require, if a proposed site and improvements are in a location that may § 60.4 Flood plain management criteria have mudslide (i.e., mudflow) hazards, for mudslide (i.e., mudflow)-prone that (i) a site investigation and further areas. review be made by persons qualified in The Administrator will provide the geology and soils engineering, (ii) the data upon which flood plain manage- proposed grading, excavations, new

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construction, and substantial improve- from other Federal, State or other ments are adequately designed and pro- sources, pending receipt of data from tected against mudslide (i.e., mudflow) the Administrator. However, when spe- damages, (iii) the proposed grading, ex- cial flood-related erosion hazard area cavations, new construction and sub- designations have been furnished by stantial improvements do not aggra- the Administrator they shall apply. vate the existing hazard by creating ei- The symbols defining such special ther on-site or off-site disturbances, flood-related erosion hazard designa- and (iv) drainage, planting, watering, tions are set forth in § 64.3 of this sub- and maintenance be such as not to en- chapter. In all cases the minimum re- danger slope stability. quirements governing the adequacy of (b) When the Administrator has de- the flood plain management regula- lineated Zone M on the community’s tions for flood-related erosion-prone FIRM, the community shall: areas adopted by a particular commu- (1) Meet the requirements of para- nity depend on the amount of technical graph (a) of this section; and data provided to the community by the (2) Adopt and enforce a grading ordi- Administrator. Minimum standards for nance or regulation in accordance with communities are as follows: data supplied by the Administrator (a) When the Administrator has not which (i) regulates the location of yet identified any area within the com- foundation systems and utility systems munity as having special flood-related of new construction and substantial erosion hazards, but the community improvements, (ii) regulates the loca- has indicated the presence of such haz- tion, drainage and maintenance of all ards by submitting an application to excavations, cuts and fills and planted participate in the Program, the com- slopes, (iii) provides special require- munity shall ments for protective measures includ- (1) Require the issuance of a permit ing but not necessarily limited to re- for all proposed construction, or other taining walls, buttress fills, sub-drains, development in the area of flood-re- diverter terraces, benchings, etc., and lated erosion hazard, as it is known to (iv) requires engineering drawings and the community; specifications to be submitted for all (2) Require review of each permit ap- corrective measures, accompanied by plication to determine whether the supporting soils engineering and geol- proposed site alterations and improve- ogy reports. Guidance may be obtained ments will be reasonably safe from from the provisions of the 1973 edition flood-related erosion and will not cause and any subsequent edition of the Uni- flood-related erosion hazards or other- form Building Code, sections 7001 wise aggravate the existing flood-re- through 7006, and 7008 through 7015. lated erosion hazard; and The Uniform Building Code is pub- (3) If a proposed improvement is lished by the International Conference found to be in the path of flood-related of Building Officials, 50 South Los erosion or to increase the erosion haz- Robles, Pasadena, California 91101. ard, require the improvement to be re- [41 FR 46975, Oct. 26, 1976. Redesignated at 44 located or adequate protective meas- FR 31177, May 31, 1979, as amended at 48 FR ures to be taken which will not aggra- 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] vate the existing erosion hazard. (b) When the Administrator has de- § 60.5 Flood plain management criteria lineated Zone E on the community’s for flood-related erosion-prone FIRM, the community shall areas. (1) Meet the requirements of para- The Administrator will provide the graph (a) of this section; and data upon which flood plain manage- (2) Require a setback for all new de- ment regulations for flood-related ero- velopment from the ocean, lake, bay, sion-prone areas shall be based. If the riverfront or other body of water, to Administrator has not provided suffi- create a safety buffer consisting of a cient data to furnish a basis for these natural vegetative or contour strip. regulations in a particular community, This buffer will be designated by the the community shall obtain, review, Administrator according to the flood- and reasonably utilize data available related erosion hazard and erosion

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rate, in conjunction with the antici- flood levels during the base flood dis- pated ‘‘useful life’’ of structures, and charge would result; depending upon the geologic, hydro- (2) Variances may be issued by a logic, topographic and climatic charac- community for new construction and teristics of the community’s land. The substantial improvements to be erected buffer may be used for suitable open on a lot of one-half acre or less in size space purposes, such as for agricul- contiguous to and surrounded by lots tural, forestry, outdoor recreation and with existing structures constructed wildlife habitat areas, and for other ac- below the base flood level, in conform- tivities using temporary and portable ance with the procedures of paragraphs structures only. (a) (3), (4), (5) and (6) of this section; [41 FR 46975, Oct. 26, 1976. Redesignated at 44 (3) Variances shall only be issued by FR 31177, May 31, 1979, as amended at 48 FR a community upon (i) a showing of 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] good and sufficient cause, (ii) a determination that failure to grant the vari- § 60.6 Variances and exceptions. ance would result in exceptional hard- (a) The Administrator does not set ship to the applicant, and (iii) a deter- forth absolute criteria for granting mination that the granting of a vari- variances from the criteria set forth in ance will not result in increased flood §§ 60.3, 60.4, and 60.5. The issuance of a heights, additional threats to public variance is for flood plain management safety, extraordinary public expense, purposes only. Insurance premium create nuisances, cause fraud on or vic- rates are determined by statute accord- timization of the public, or conflict ing to actuarial risk and will not be with existing local laws or ordinances; modified by the granting of a variance. (4) Variances shall only be issued The community, after examining the upon a determination that the variance applicant’s hardships, shall approve or is the minimum necessary, considering disapprove a request. While the grant- the flood hazard, to afford relief; ing of variances generally is limited to (5) A community shall notify the ap- a lot size less than one-half acre (as set plicant in writing over the signature of forth in paragraph (a)(2) of this sec- a community official that (i) the tion), deviations from that limitation issuance of a variance to construct a may occur. However, as the lot size in- structure below the base flood level creases beyond one-half acre, the tech- will result in increased premium rates nical justification required for issuing for flood insurance up to amounts as a variance increases. The Adminis- high as $25 for $100 of insurance cov- trator may review a community’s find- erage and (ii) such construction below ings justifying the granting of the base flood level increases risks to variances, and if that review indicates life and property. Such notification a pattern inconsistent with the objec- shall be maintained with a record of all tives of sound flood plain management, variance actions as required in para- the Administrator may take appro- graph (a)(6) of this section; and priate action under § 59.24(b) of this (6) A community shall (i) maintain a subchapter. Variances may be issued record of all variance actions, includ- for the repair or rehabilitation of his- ing justification for their issuance, and toric structures upon a determination (ii) report such variances issued in its that the proposed repair or rehabilita- annual or biennial report submitted to tion will not preclude the structure’s the Administrator. continued designation as a historic (7) Variances may be issued by a structure and the variance is the min- community for new construction and imum necessary to preserve the his- substantial improvements and for toric character and design of the struc- other development necessary for the ture. Procedures for the granting of conduct of a functionally dependent variances by a community are as fol- use provided that (i) the criteria of lows: paragraphs (a)(1) through (a)(4) of this (1) Variances shall not be issued by a section are met, and (ii) the structure community within any designated reg- or other development is protected by ulatory floodway if any increase in methods that minimize flood damages

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during the base flood and create no administrator may approve the proposal ditional threats to public safety. provided that: (b)(1) The requirement that each (1) The community has demonstrated flood-prone, mudslide (i.e., mudflow)- that areas of special flood hazard in prone, and flood-related erosion prone which basements will be permitted are community must adopt and submit subject to shallow and low velocity adequate flood plain management regu- flooding and that there is adequate lations as a condition of initial and flood warning time to ensure that all continued flood insurance eligibility is residents are notified of impending statutory and cannot be waived, and floods. For the purposes of this para- such regulations shall be adopted by a graph flood characteristics must in- community within the time periods clude: specified in §§ 60.3, 60.4 or § 60.5. How- (i) Flood depths that are five feet or ever, certain exceptions from the less for developable lots that are con- standards contained in this subpart tiguous to land above the base flood may be permitted where the Adminis- level and three feet or less for other trator recognizes that, because of ex- lots; traordinary circumstances, local condi- (ii) Flood velocities that are five feet tions may render the application of per second or less; and certain standards the cause for severe (iii) Flood warning times that are 12 hardship and gross inequity for a par- hours or greater. Flood warning times ticular community. Consequently, a of two hours or greater may be ap- community proposing the adoption of flood plain management regulations proved if the community demonstrates which vary from the standards set that it has a flood warning system and forth in §§ 60.3, 60.4, or § 60.5, shall ex- emergency plan in operation that is plain in writing to the Administrator adequate to ensure safe evacuation of the nature and extent of and the rea- flood plain residents. sons for the exception request and shall (2) The community has adopted flood include sufficient supporting economic, plain management measures that re- environmental, topographic, hydro- quire that new construction and sub- logic, and other scientific and tech- stantial improvements of residential nical data, and data with respect to the structures with basements in zones A1– impact on public safety and the envi- 30, AH, AO, and AE shall: ronment. (i) Be designed and built so that any (2) The Administrator shall prepare a basement area, together with attend- Special Environmental Clearance to ant utilities and sanitary facilities determine whether the proposal for an below the floodproofed design level, is exception under paragraph (b)(1) of this watertight with walls that are imper- section will have significant impact on meable to the passage of water without the human environment. The decision human intervention. Basement walls whether an Environmental Impact shall be built with the capacity to re- Statement or other environmental doc- sist hydrostatic and hydrodynamic ument will be prepared, will be made in loads and the effects of buoyancy re- accordance with the procedures set out sulting from flooding to the in 44 CFR part 10. Ninety or more days floodproofed design level, and shall be may be required for an environmental designed so that minimal damage will quality clearance if the proposed ex- occur from floods that exceed that ception will have significant impact on level. The floodproofed design level the human environment thereby re- shall be an elevation one foot above the quiring an EIS. level of the base flood where the dif- (c) A community may propose flood ference between the base flood and the plain management measures which 500-year flood is three feet or less and adopt standards for floodproofed resi- two feet above the level of the base dential basements below the base flood flood where the difference is greater level in zones A1–30, AH, AO, and AE than three feet. which are not subject to tidal flooding. (ii) Have the top of the floor of any Nothwithstanding the requirements of basement area no lower than five feet paragraph (b) of this section the Ad- below the elevation of the base flood;

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(iii) Have the area surrounding the consistent with criteria established by structure on all sides filled to or above the Administrator. the elevation of the base flood. Fill (b) This subpart sets forth the flood must be compacted with slopes pro- plain management criteria required for tected by vegetative cover; State-owned properties located within (iv) Have a registered professional special hazard areas identified by the engineer or architect develop or review Administrator. A State shall satisfy the building’s structual design, speci- such criteria as a condition to the pur- fications, and plans, including consid- chase of a Standard Flood Insurance eration of the depth, velocity, and du- Policy for a State-owned structure or ration of flooding and type and perme- its contents, or as a condition to the ability of soils at the building site, and approval by the Administrator, pursu- certify that the basement design and ant to part 75 of this subchapter, of its methods of construction proposed are plan of self-insurance. in accordance with accepted standards of practice for meeting the provisions [41 FR 46975, Oct. 26, 1976. Redesignated at 44 of this paragraph; FR 31177, May 31, 1979, as amended at 48 FR (v) Be inspected by the building in- 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] spector or other authorized representative of the community to verify that § 60.12 Flood plain management criteria for State-owned properties in the structure is built according to its special hazard areas. design and those provisions of this section which are verifiable. (a) The State shall comply with the minimum flood plain management cri- [41 FR 46975, Oct. 26, 1976. Redesignated at 44 teria set forth in §§ 60.3, 60.4, and 60.5. A FR 31177, May 31, 1979, as amended at 48 FR State either shall: 44543 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 50 FR 36025, Sept. 4, 1985; 51 FR 30308, (1) Comply with the flood plain man- Aug. 25, 1986; 54 FR 33550, Aug. 15, 1989] agement requirements of all local communities participating in the program § 60.7 Revisions of criteria for flood in which State-owned properties are lo- plain management regulations. cated; or From time to time part 60 may be re- (2) Establish and enforce flood plain vised as experience is acquired under management regulations which, at a the Program and new information be- minimum, satisfy the criteria set forth comes available. Communities will be in §§ 60.3, 60.4, and 60.5. given six months from the effective (b) The procedures by which a state date of any new regulation to revise government adopts and administers their flood plain management regula- flood plain management regulations tions to comply with any such changes. satisfying the criteria set forth in §§ 60.3, 60.4 and 60.5 may vary from the § 60.8 Definitions. procedures by which local governments The definitions set forth in part 59 of satisfy the criteria. this subchapter are applicable to this (c) If any State-owned property is lo- part. cated in a non-participating local community, then the State shall comply Subpart B—Requirements for State with the requirements of paragraph Flood Plain Management (a)(2) of this section for the property. Regulations § 60.13 Noncompliance. § 60.11 Purpose of this subpart. If a State fails to submit adequate (a) A State is considered a ‘‘commu- flood plain management regulations nity’’ pursuant to § 59.1 of this sub- applicable to State-owned properties chapter; and, accordingly, the Act pro- pursuant to § 60.12 within six months of vides that flood insurance shall not be the effective date of this regulation, or sold or renewed under the Program un- fails to adequately enforce such regula- less a community has adopted adequate tions, the State shall be subject to sus- flood plain management regulations pensive action pursuant to § 59.24.

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Where the State fails to adequately en- (c) In formulating community devel- force its flood plain management regu- opment goals and in adopting flood lations, the Administrator shall con- plain management regulations, each duct a hearing before initiating such community shall consider at least the suspensive action. following factors— [41 FR 46975, Oct. 26, 1976. Redesignated at 44 (1) Human safety; FR 31177, May 31, 1979, as amended at 48 FR (2) Diversion of development to areas 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] safe from flooding in light of the need to reduce flood damages and in light of Subpart C—Additional Consider- the need to prevent environmentally ations in Managing Flood- incompatible flood plain use; Prone, Mudslide (i.e., Mud- (3) Full disclosure to all prospective and interested parties (including but flow)-Prone and Flood-Re- not limited to purchasers and renters) lated Erosion-Prone Areas that (i) certain structures are located within flood-prone areas, (ii) variances § 60.21 Purpose of this subpart. have been granted for certain struc- The purpose of this subpart is to en- tures located within flood-prone areas, courage the formation and adoption of and (iii) premium rates applied to new overall comprehensive management structures built at elevations below the plans for flood-prone, mudslide (i.e., base flood substantially increase as the mudflow)-prone and flood-related ero- elevation decreases; sion-prone areas. While adoption by a (4) Adverse effects of flood plain de- community of the standards in this velopment on existing development; subpart is not mandatory, the commu- (5) Encouragement of floodproofing nity shall completely evaluate these to reduce flood damage; standards. (6) Flood warning and emergency pre- § 60.22 Planning considerations for paredness plans; flood-prone areas. (7) Provision for alternative vehic- (a) The flood plain management regu- ular access and escape routes when lations adopted by a community for normal routes are blocked or destroyed flood-prone areas should: by flooding; (1) Permit only that development of (8) Establishment of minimum flood-prone areas which (i) is appro- floodproofing and access requirements priate in light of the probability of for schools, hospitals, nursing homes, flood damage and the need to reduce orphanages, penal institutions, fire sta- flood losses, (ii) is an acceptable social tions, police stations, communications and economic use of the land in rela- centers, water and sewage pumping tion to the hazards involved, and (iii) stations, and other public or quasi-pub- does not increase the danger to human lic facilities already located in the life; flood-prone area, to enable them to (2) Prohibit nonessential or improper withstand flood damage, and to facili- installation of public utilities and pub- tate emergency operations; lic facilities in flood-prone areas. (9) Improvement of local drainage to (b) In formulating community devel- control increased runoff that might in- opment goals after the occurrence of a crease the danger of flooding to other flood disaster, each community shall properties; consider— (10) Coordination of plans with neigh- (1) Preservation of the flood-prone boring community’s flood plain man- areas for open space purposes; agement programs; (2) Relocation of occupants away (11) The requirement that all new from flood-prone areas; construction and substantial improve- (3) Acquisition of land or land devel- ments in areas subject to subsidence be opment rights for public purposes con- elevated above the base flood level sistent with a policy of minimization equal to expected subsidence for at of future property losses; least a ten year period; (4) Acquisition of frequently flood- (12) For riverine areas, requiring sub- damaged structures; dividers to furnish delineations for

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floodways before approving a subdivi- this subchapter that they have sion; mudslide (i.e., mudflow) areas, should (13) Prohibition of any alteration or include— relocation of a watercourse, except as (a) The existence and extent of the part of an overall drainage basin plan. hazard; In the event of an overall drainage (b) The potential effects of inappro- basin plan, provide that the flood car- priate hillside development, including rying capacity within the altered or re- (1) Loss of life and personal injuries, located portion of the watercourse is and maintained; (2) Public and private property (14) Requirement of setbacks for new losses, costs, liabilities, and exposures construction within Zones V1–30, VE, resulting from potential mudslide (i.e., and V on a community’s FIRM; mudflow) hazards; (15) Requirement of additional elevation above the base flood level for all (c) The means of avoiding the hazard new construction and substantial im- including the (1) availability of land provements within Zones A1–30, AE, which is not mudslide (i.e., mudflow)- V1–30, and VE on the community’s prone and the feasibility of developing FIRM to protect against such occur- such land instead of further encroach- rences as wave wash and floating de- ing upon mudslide (i.e., mudflow) bris, to provide an added margin of areas, (2) possibility of public acquisi- safety against floods having a mag- tion of land, easements, and develop- nitude greater than the base flood, or ment rights to assure the proper devel- to compensate for future urban development of hillsides, and (3) advisability opment; of preserving mudslide (i.e., mudflow) (16) Requirement of consistency be- areas as open space; tween state, regional and local com- (d) The means of adjusting to the prehensive plans and flood plain man- hazard, including the (1) establishment agement programs; by ordinance of site exploration, inves- (17) Requirement of pilings or col- tigation, design, grading, construction, umns rather than fill, for the elevation filing, compacting, foundation, sewer- of structures within flood-prone areas, age, drainage, subdrainage, planting, in order to maintain the storage capac- inspection and maintenance standards ity of the flood plain and to minimize and requirements that promote proper the potential for negative impacts to land use, and (2) provision for proper sensitive ecological areas; drainage and subdrainage on public (18) Prohibition, within any floodway property and the location of public or coastal high hazard area, of plants utilities and service facilities, such as or facilities in which hazardous sub- sewer, water, gas and electrical sys- stances are manufactured. tems and streets in a manner designed (19) Requirement that a plan for to minimize exposure to mudslide (i.e., evacuating residents of all manufac- mudflow) hazards and prevent their ag- tured home parks or subdivisions lo- gravation; cated within flood prone areas be de- (e) Coordination of land use, sewer, veloped and filed with and approved by and drainage regulations and ordi- appropriate community emergency nances with fire prevention, flood management authorities. plain, mudslide (i.e., mudflow), soil, land, and water regulation in neigh- [41 FR 46975, Oct. 26, 1976. Redesignated at 44 boring communities; FR 31177, May 31, 1979, as amended at 50 FR 36025, Sept. 4, 1985; 54 FR 40284, Sept. 29, 1989] (f) Planning subdivisions and other developments in such a manner as to § 60.23 Planning considerations for avoid exposure to mudslide (i.e., mud- mudslide (i.e., mudflow)-prone flow) hazards and the control of public areas. facility and utility extension to dis- The planning process for commu- courage inappropriate development; nities identified under part 65 of this (g) Public facility location and de- subchapter as containing Zone M, or sign requirements with higher site sta- which indicate in their applications for bility and access standards for schools, flood insurance pursuant to § 59.22 of hospitals, nursing homes, orphanages,

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correctional and other residential in- (b) The possibility of reserving flood- stitutions, fire and police stations, related erosion-prone areas for open communication centers, electric power space purposes; transformers and substations, water (c) The coordination of all planning and sewer pumping stations and any for the flood-related erosion-prone other public or quasi-public institu- areas with planning at the State and tions located in the mudslide (i.e., Regional levels, and with planning at mudflow) area to enable them to with- the level of neighboring communities; stand mudslide (i.e., mudflow) damage (d) Preventive action in E zones, in- and to facilitate emergency operations; cluding setbacks, shore protection and works, relocating structures in the (h) Provision for emergencies, includ- path of flood-related erosion, and coming: munity acquisition of flood-related (1) Warning, evacuation, abatement, erosion-prone properties for public pur- and access procedures in the event of poses; mudslide (i.e., mudflow), (e) Consistency of plans for flood-re- (2) Enactment of public measures and lated erosion-prone areas with com- initiation of private procedures to prehensive plans at the state, regional limit danger and damage from contin- and local levels. ued or future mudslides (i.e., mudflow), (3) Fire prevention procedures in the § 60.25 Designation, duties, and responsibilities of State Coordinating event of the rupture of gas or electrical Agencies. distribution systems by mudslides, (4) Provisions to avoid contamination (a) States are encouraged to dem- of water conduits or deterioration of onstrate a commitment to the min- slope stability by the rupture of such imum flood plain management criteria systems, set forth in §§ 60.3, 60.4, and 60.5 as evi- denced by the designation of an agency (5) Similar provisions for sewers of State government to be responsible which in the event of rupture pose both for coordinating the Program aspects health and site stability hazards and of flood plain management in the (6) Provisions for alternative vehic- State. ular access and escape routes when (b) State participation in furthering normal routes are blocked or destroyed the objectives of this part shall include by mudslides (i.e., mudflow); maintaining capability to perform the (i) The means for assuring consist- appropriate duties and responsibilities ency between state, areawide, and local as follows: comprehensive plans with the plans de- (1) Enact, whenever necessary, legis- veloped for mudslide (i.e., mudflow)- lation enabling counties and munici- prone areas; palities to regulate development with- (j) Deterring the nonessential instal- in flood-prone areas; lation of public utilities and public fa- (2) Encourage and assist communities cilities in mudslide (i.e., mudflow)- in qualifying for participation in the prone areas. Program; (3) Guide and assist county and mu- § 60.24 Planning considerations for nicipal public bodies and agencies in flood-related erosion-prone areas. developing, implementing, and main- The planning process for commu- taining local flood plain management nities identified under part 65 of this regulations; subchapter as containing Zone E or (4) Provide local governments and which indicate in their applications for the general public with Program infor- flood insurance coverage pursuant to mation on the coordination of local ac- § 59.22 of this subchapter that they have tivities with Federal and State require- flood-related erosion areas should in- ments for managing flood-prone areas; clude— (5) Assist communities in dissemi- (a) The importance of directing fu- nating information on minimum ele- ture developments to areas not exposed vation requirements for development to flood-related erosion; within flood-prone areas;

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(6) Assist in the delineation of (2) Considering State approval or cer- riverine and coastal flood-prone areas, tifications of local flood plain manage- whenever possible, and provide all rel- ment regulations as meeting the re- evant technical information to the Ad- quirements of this part. ministrator; [51 FR 30309, Aug. 25, 1986] (7) Recommend priorities for Federal flood plain management activities in § 60.26 Local coordination. relation to the needs of county and mu- (a) Local flood plain, mudslide (i.e., nicipal localities within the State; mudflow) and flood-related erosion (8) Provide notification to the Ad- area management, forecasting, emer- ministrator in the event of apparent ir- gency preparedness, and damage abate- reconcilable differences between a comment programs should be coordinated munity’s local flood plain management with relevant Federal, State, and re- program and the minimum require- gional programs; ments of the Program; (b) A community adopting flood plain (9) Establish minimum State flood management regulations pursuant to plain management regulatory stand- these criteria should coordinate with ards consistent with those established the appropriate State agency to pro- in this part and in conformance with mote public acceptance and use of ef- other Federal and State environmental fective flood plain, mudslide, (i.e., and water pollution standards for the mudflow) and flood-related erosion reg- prevention of pollution during periods ulations; of flooding; (c) A community should notify adja- (10) Assure coordination and consist- cent communities prior to substantial ency of flood plain management activi- commercial developments and large ties with other State, areawide, and subdivisions to be undertaken in areas local planning and enforcement agen- having special flood, mudslide (i.e., cies; mudflow) and/or flood-related erosion (11) Assist in the identification and hazards. implementation of flood hazard mitigation recommendations which are consistent with the minimum flood plain PART 61—INSURANCE COVERAGE management criteria for the Program; AND RATES (12) Participate in flood plain management training opportunities and Sec. other flood hazard preparedness pro- 61.1 Purpose of part. grams whenever practicable. 61.2 Definitions. 61.3 Types of coverage. (c) Other duties and responsibilities, 61.4 Limitations on coverage. which may be deemed appropriate by 61.5 Special terms and conditions. the State and which are to be officially 61.6 Maximum amounts of coverage avail- designated as being conducted in the able. capacity of the State Coordinating 61.7 Risk premium rate determinations. Agency for the Program, may be car- 61.8 Applicability of risk premium rates. ried out with prior notification of the 61.9 Establishment of chargeable rates. Administrator. 61.11 Effective date and time of coverage under the Standard Flood Insurance Pol- (d) For States which have dem- icy—New Business Applications and En- onstrated a commitment to and experi- dorsements. ence in application of the minimum 61.12 Rates based on a flood protection sys- flood plain management criteria set tem involving Federal funds. forth in §§ 60.3, 60.4, and 60.5 as evi- 61.13 Standard Flood Insurance Policy. denced by the establishment and im- 61.14 Standard Flood Insurance Policy In- plementation of programs which sub- terpretations. stantially encompass the activities de- 61.16 Probation additional premium. 61.17 Group Flood Insurance Policy. scribed in paragraphs (a), (b), and (c) of this section, the Administrator shall APPENDIX A(1) TO PART 61—FEDERAL EMER- GENCY MANAGEMENT AGENCY, FEDERAL take the foregoing into account when: INSURANCE ADMINISTRATION, STANDARD (1) Considering State recommenda- FLOOD INSURANCE POLICY tions prior to implementing Program APPENDIX A(2) TO PART 61—FEDERAL EMER- activities affecting State communities; GENCY MANAGEMENT AGENCY, FEDERAL

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INSURANCE ADMINISTRATION, STANDARD § 61.4 Limitations on coverage. FLOOD INSURANCE POLICY APPENDIX A(3) TO PART 61—FEDERAL EMER- All flood insurance made available GENCY MANAGEMENT AGENCY, FEDERAL under the Program is subject: INSURANCE ADMINISTRATION, STANDARD (a) To the Act, the Amendments FLOOD INSURANCE POLICY thereto, and the Regulations issued APPENDIX A(4) TO PART 61—FEDERAL EMER- under the Act; GENCY MANAGEMENT AGENCY, FEDERAL (b) To the terms and conditions of INSURANCE ADMINISTRATION, STANDARD the Standard Flood Insurance Policy, FLOOD INSURANCE POLICY APPENDIX A(5) TO PART 61—FEDERAL EMER- which shall be promulgated by the Ad- GENCY MANAGEMENT AGENCY, FEDERAL ministrator for substance and form, INSURANCE ADMINISTRATION, STANDARD and which is subject to interpretation FLOOD INSURANCE POLICY by the Administrator as to scope of APPENDIX A(6) TO PART 61—FEDERAL EMER- coverage pursuant to the applicable GENCY MANAGEMENT AGENCY, FEDERAL statutes and regulations; INSURANCE ADMINISTRATION, STANDARD (c) To the specified limits of coverage FLOOD INSURANCE POLICY set forth in the Application and Dec- AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- larations page of the policy; and nization Plan No. 3 of 1978, 43 FR 41943, 3 (d) To the maximum limits of cov- CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, erage set forth in § 61.6. 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. [43 FR 2570, Jan. 17, 1978. Redesignated at 44 SOURCE: 43 FR 2570, Jan. 17, 1978, unless otherwise noted. Redesignated at 44 FR 31177, FR 31177, May 31, 1979, as amended at 48 FR May 31, 1979. 39068, Aug. 29, 1983; 50 FR 36025, Sept. 4, 1985; 53 FR 16277, May 6, 1988; 58 FR 62424, Nov. 26, § 61.1 Purpose of part. 1993] This part describes the types of prop- § 61.5 Special terms and conditions. erties eligible for flood insurance cov- (a) No new flood insurance or renewal erage under the Program, the limits of of flood insurance policies shall be such coverage, and the premium rates written for properties declared by a actually to be paid by insureds. The duly constituted State or local zoning specific communities eligible for cov- or other authority to be in violation of erage are designated by the Adminis- any flood plain, mudslide (i.e., mud- trator from time to time as applica- flow) or flood-related erosion area tions are approved under the emer- management or control law, regula- gency program and as ratemaking tion, or ordinance. studies of communities are completed (b) In order to reduce the administra- prior to the regular program. Lists of tive costs of the Program, of which the such communities are periodically pub- Federal Government pays a major lished under part 64 of this subchapter. share, payment of the full policyholder [43 FR 2570, Jan. 17, 1978. Redesignated at 44 premium must be made at the time of FR 31177, May 31, 1979, as amended at 48 FR application. 39068, Aug. 29, 1983; 49 FR 4751, Feb. 8, 1984; 49 (c) Because of the seasonal nature of FR 5621, Feb. 14, 1984] flooding, refunds of premiums upon cancellation of coverage by the insured § 61.2 Definitions. are permitted only if the insurer ceases The definitions set forth in part 59 of to have an ownership interest in the this subchapter are applicable to this covered property at the location depart. scribed in the policy. Refunds of premiums for any other reason are subject § 61.3 Types of coverage. to the conditions set forth in § 62.5 of Insurance coverage under the Pro- this subchapter. gram is available for structures and (d) Optional Deductibles, All Zones, their contents. Coverage for each may are available as follows: be purchased separately. CATEGORY ONE—1 TO 4 FAMILY BUILDING AND [43 FR 2570, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, as amended at 48 FR CONTENTS COVERAGE POLICIES 39068, Aug. 29, 1983; 50 FR 36025, Sept. 4, 1985; Options Building/contents 51 FR 30309, Aug. 25, 1986; 58 FR 62424, Nov. 26, 1993] $500/$500

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CATEGORY ONE—1 TO 4 FAMILY BUILDING AND NOTE: Any other combination may be sub- CONTENTS COVERAGE POLICIES—Continued mitted for rating to the NFIP.

Options Building/contents (e) The standard flood insurance policy is authorized only under terms and 1,000/1,000 conditions established by Federal stat- 2,000/1,000 3,000/1,000 ute, the program’s regulations, the Ad- 4,000/2,000 ministrator’s interpretations and the 5,000/2,000 express terms of the policy itself. Ac- cordingly, representations regarding CATEGORY TWO—1 TO 4 FAMILY BUILDING COV- the extent and scope of coverage which ERAGE ONLY OR CONTENTS COVERAGE ONLY are not consistent with the National POLICIES Flood Insurance Act of 1968, as amend- Options Building Contents 1 ed, or the Program’s regulations, are void, and the duly licensed property or $500 $500 1,000 1,000 casualty agent acts for the insured and 2,000 2,000 does not act as agent for the Federal 3,000 3,000 4,000 4,000 Government, the Federal Emergency 5,000 5,000 Management Agency, or the servicing 1 Also applies to residential unit contents in other residential agent. building or in multi-unit condominium building. [43 FR 2570, Jan. 17, 1978. Redesignated at 44 CATEGORY THREE—OTHER RESIDENTIAL AND FR 31177, May 31, 1979, as amended at 47 FR NONRESIDENTIAL POLICIES 19140, May 4, 1982; 48 FR 39068, Aug. 29, 1983; 49 FR 33656, Aug. 23, 1984; 50 FR 36025, Sept. Single coverage only 4, 1985; 51 FR 30309, Aug. 25, 1986; 53 FR 16277, Options Policy combining build- policy (either building ing and contents or contents) May 6, 1988; 53 FR 27991, July 26, 1988; 57 FR 19541, May 7, 1992; 58 FR 62424, Nov. 26, 1993] $500/$500 $500 1,000/1,000 1,000 § 61.6 Maximum amounts of coverage 2,000/2,000 2,000 3,000/3,000 3,000 available. 4,000/4,000 4,000 (a) Pursuant to section 1306 of the 5,000/5,000 5,000 Act, the following are the limits of coverage available under the emergency CATEGORY FOUR—RESIDENTIAL CONDOMINIUM program and under the regular pro- BUILDING POLICIES gram. Single coverage only Options Policy combining build- policy (either building ing and contents or contents)

$10,000/$10,000 $10,000 25,000/10,000 25,000

Regular program

Emergency Second Total program 1 amount first layer layer available

Single Family Residential Except in Hawaii, Alaska, Guam, U.S. Virgin Islands ...... $35,000 $215,000 $250,000 In Hawaii, Alaska, Guam, U.S. Virgin Islands ...... 50,000 200,000 250,000 Other Residential Except in Hawaii, Alaska, Guam, U.S. Virgin Islands ...... 100,000 150,000 250,000 In Hawaii, Alaska, Guam, U.S. Virgin Islands ...... 150,000 100,000 250,000 Nonresidential Small business ...... 100,000 400,000 500,000 Churches and other properties ...... 100,000 400,000 500,000 Contents 2 Residential ...... 10,000 90,000 100,000 Small business ...... 100,000 400,000 500,000 Churches, other properties ...... 100,000 400,000 500,000 1 Only first layer available under emergency program. 2 Per unit.

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(b) In the insuring of a residential was started after December 31, 1974 or condominium building in a regular pro- on or after the effective date of the ini- gram community, the maximum limit tial FIRM, whichever is later. of building coverage is $250,000 times (b) Coverage which exceeds the fol- the number of units in the building lowing limits: (not to exceed the building’s replace- (1) For dwelling properties in States ment cost). other than Alaska, Hawaii, the Virgin [60 FR 5585, Jan. 30, 1995] Islands, and Guam (i) $35,000 aggregate liability for any property containing § 61.7 Risk premium rate determina- only one unit, (ii) $100,000 for any prop- tions. erty containing more than one unit, (a) Pursuant to section 1307 of the and (iii) $10,000 liability per unit for Act, the Administrator is authorized to any contents related to such unit. undertake studies and investigations (2) For dwelling properties in Alaska, to enable him/her to estimate the risk Hawaii, the Virgin Islands, and Guam premium rates necessary to provide (i) $50,000 aggregate liability for any flood insurance in accordance with accepted actuarial principles, including property containing only one unit, (ii) applicable operating costs and allow- $150,000 for property containing more ances. Such rates are also referred to than one unit, and (iii) $10,000 aggre- in this subchapter as ‘‘actuarial rates.’’ gate liability per unit for any contents (b) The Administrator is also author- related to such unit. ized to prescribe by regulation the (3) For churches and other properties rates which can reasonably be charged (i) $100,000 for the structure and (ii) to insureds in order to encourage them $100,000 for contents of any such unit. to purchase the flood insurance made (c) Any structure or the contents available under the Program. Such thereof for which the chargeable rates rates are referred to in this subchapter prescribed by this part would exceed as ‘‘chargeable rates.’’ For areas hav- the risk premium rates. ing special flood, mudslide (i.e., mudflow), and flood-related erosion haz- § 61.9 Establishment of chargeable ards, chargeable rates are usually rates. lower than actuarial rates. (a) Under section 1308 of the Act, we § 61.8 Applicability of risk premium are establishing annual chargeable rates. rates for each $100 of flood insurance Risk premium rates are applicable to coverage as follows for pre-FIRM, A all flood insurance made available for: zone properties, pre-FIRM, V-zone (a) Any structure, the construction properties, and emergency program or substantial improvement of which properties.

A zone rates 1 per year per V zone rates 2 per year per Type of structure $100 coverage on— $100 coverage on— Structure Contents Structure Contents

1. Residential: No Basement or Enclosure ...... 68 .79 .91 1.06 With Basement or Enclosure ...... 73 .79 .98 1.06 2. All other including hotels and motels with normal occupancy of less than 6 months duration: No Basement or Enclosure ...... 79 1.58 1.06 2.10 With Basement or Enclosure ...... 84 1.58 1.12 2.10 1 A zones are zones A1–A30, AE, AO, AH, and unnumbered A zones. 2 V zones are zones V1–V30, VE, and unnumbered V zones.

(b) We will charge rates for contents formly to all buildings throughout in pre-FIRM buildings according to the emergency program communities. use of the building. [64 FR 13116, Mar. 17, 1999, as amended at 67 (c) A-zone rates for buildings without FR 8905, Feb. 27, 2002] basements or enclosures apply uni-

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§ 61.11 Effective date and time of cov- because the WYO Company does not erage under the Standard Flood In- wish to write the business, in which surance Policy—New Business Ap- case any applicable waiting period plications and Endorsements. under this section shall be calculated (a) During the 13-month period begin- in accordance with the first sentence of ning on the effective date of a revised paragraph (f) of this section. Therefore, Flood Hazard Boundary Map or Flood it is important that an application for Insurance Rate Map for a community, Flood Insurance and its premium be the effective date and time of any ini- mailed to the NFIP promptly in order tial flood insurance coverage shall be to have the effective date of the cov- 12:01 a.m. (local time) on the first cal- erage based on the application date endar day after the application date plus the waiting period. If the applica- and the presentment of payment of pre- tion and the premium payment are re- mium; for example, a flood insurance ceived at the office of the NFIP within policy applied for with the payment of ten (10) days from the date of applica- the premium on May 1 will become ef- tion, the waiting period will be cal- fective at 12:01 a.m. on May 2. culated from the date of application. (b) Where the initial purchase of Also, as an alternative, in those cases flood insurance is in connection with where the application and premium the making, increasing, extension, or payment are mailed by certified mail renewal of a loan, the coverage with re- within four (4) days from the date of spect to the property which is the sub- application, the waiting period will be ject of the loan shall be effective as of calculated from the date of application the time of the loan closing, provided even though the application and pre- the written request for the coverage is mium payment are received at the of- received by the NFIP and the flood in- fice of the NFIP after ten (10) days fol- surance policy is applied for and the lowing the date of application. Thus, if presentment of payment of premium is the application and premium payment made at or prior to the loan closing. are received after ten (10) days from (c) Except as provided by paragraphs the date of the application or are not (a) and (b) of this section, the effective mailed by certified mail within four (4) date and time of any new policy or days from the date of application, the added coverage or increase in the waiting period will be calculated from amount of coverage shall be 12:01 a.m. the date of receipt at the office of the (local time) on the 30th calendar day NFIP. To determine the effective date after the application date and the pre- of any coverage added by endorsement sentment of payment of premium; for to a flood insurance policy already in example, a flood insurance policy ap- effect, substitute the term endorsement plied for with the payment of the pre- for the term application in this para- mium on May 1 will become effective graph (e). at 12:01 a.m. on May 31. (f) With respect to the submission of (d) Adding new coverage or increas- an application in connection with new ing the amount of coverage in force is business, a renewal of a policy in effect permitted during the term of any pol- and an endorsement to a policy in ef- icy. The additional premium for any fect, the payment by an insured to an new coverage or increase in the agent or the issuance of premium pay- amount of coverage shall be calculated ment to a Write-Your-Own (WYO) Com- pro rata in accordance with the rates pany by the agent, accompanied by a currently in force. properly completed application, re- (e) With respect to any submission of newal or endorsement form, as appro- an application in connection with new priate, shall commence the calculation business, the payment by an insured to of any applicable waiting period under an agent or the issuance of premium this section, provided that the agent is payment by the agent, does not con- acting in the capacity of an agent of a stitute payment to the NFIP, except Write-Your-Own (WYO) Company au- where a WYO Company receives an ap- thorized by 44 CFR 62.23, is under writ- plication and premium payment from ten contract to or is an employee of one of its agents and elects to refer the such Company, and such WYO Com- business to the NFIP Servicing Agent pany is, at the time of such submission

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of an application in connection with (4) All critical features of the flood new business or a renewal of or en- protection system, as identified by the dorsement to flood insurance coverage, Administrator, are under construction, engaged in WYO business under an ar- and each critical feature is 50 percent rangement entered into by the Admin- completed as measured by the actual istrator and the WYO Company pursu- expenditure of the estimated construc- ant to § 62.23. tion budget funds; and (g) Subject to the provisions of para- (5) The community has not been re- graph (f) of this section, the rules set sponsible for any delay in the comple- forth in paragraphs (a), (b), (c), (d) and tion of the system. (e) of this section apply to WYO Com- (c) Each request by a community for panies, except that premium payments a determination must be submitted in and accompanying applications and en- writing to the Risk Studies Division, dorsements shall be mailed to and re- Office of Risk Assessment, Federal In- ceived by the WYO Company, rather surance Administration, Federal Emer- than the NFIP. gency Management Agency, Wash- [43 FR 50427, Oct. 30, 1978. Redesignated at 44 ington DC, and contain a complete FR 31177, May 31, 1979, as amended at 46 FR statement of all relevant facts relating 13514, Feb. 23, 1981; 48 FR 39069, Aug. 29, 1983; to the flood protection system, includ- 48 FR 44544, Sept. 29, 1983; 49 FR 33656, Aug. ing, but not limited to, supporting 24, 1984; 50 FR 16242, Apr. 25, 1985; 50 FR 36026, technical data (e.g., U.S. Army Corps Sept. 4, 1985; 51 FR 30309, Aug. 25, 1986; 53 FR 15211, Apr. 28, 1988; 60 FR 5585, 5586, Jan. 30, of Engineers flood protection project 1995] data), cost schedules, budget appropriation data and the extent of Federal § 61.12 Rates based on a flood protec- funding of the system’s construction. tion system involving Federal Such facts shall include information funds. sufficient to identify all persons af- (a) Where the Administrator deter- fected by such flood protection system mines that a community has made ade- or by such request: A full and precise quate progress on the construction of a statement of intended purposes of the flood protection system involving Fed- flood protection system; and a care- eral funds which will significantly fully detailed description of such limit the area of special flood hazards, project, including construction comple- the applicable risk premium rates for tion target dates. In addition, true cop- any property, located within a special ies of all contracts, agreements, leases, flood hazard area intended to be pro- instruments, and other documents in- tected directly by such system will be volved must be submitted with the re- those risk premium rates which would quest. Relevant facts reflected in docu- be applicable when the system is comments, however, must be included in plete. the statement and not merely incor- (b) Adequate progress in paragraph porated by reference, and must be ac- (a) of this section means that the com- companied by an analysis of their bear- munity has provided information to ing on the requirements of paragraph the Administrator sufficient to deter- (b) of this section, specifying the perti- mine that substantial completion of nent provisions. The request must con- the flood protection system has been tain a statement whether, to the best effected because: of the knowledge of the person respon- (1) 100 percent of the total financial sible for preparing the application for project cost of the completed flood pro- the community, the flood protection tection system has been authorized; system is currently the subject matter (2) At least 60 percent of the total fi- of litigation before any Federal, State nancial project cost of the completed or local court or administrative agen- flood protection system has been ap- cy, and the purpose of that litigation. propriated; The request must also contain a state- (3) At least 50 percent of the total fi- ment as to whether the community has nancial project cost of the completed previously requested a determination flood protection system has been ex- with respect to the same subject mat- pended; ter from the Administrator, detailing

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the disposition of such previous re- used in connection with the Standard quest. As documents become part of Flood Insurance Policy. the file and cannot be returned, the (d) Waivers. The Standard Flood In- original documents should not be sub- surance Policy and required endorse- mitted. ments must be used in the Flood Insur- (d) The effective date for any risk ance Program, and no provision of the premium rates established under this said documents shall be altered, varied, section shall be the date of final deter- or waived other than by the express mination by the Administrator that written consent of the Administrator adequate progress toward completion through the issuance of an appropriate of a flood protection system has been amendatory endorsement, approved by made in a community. the Administrator as to form and sub- (e) A responsible official of a commu- stance for uniform use. nity which received a determination (e) Oral and written binders. No oral that adequate progress has been made binder or contract shall be effective. towards completion of a flood protec- No written binder shall be effective un- tion system shall certify to the Admin- less issued with express authorization istrator annually on the anniversary of the Administrator. date of receipt of such determination (f) The Standard Flood Insurance that no present delay in completion of Policy and endorsements may be issued the system is attributable to local by private sector ‘‘Write-Your-Own’’ sponsors of the system, and that a good (WYO) property insurance companies, faith effort is being made to complete based upon flood insurance applica- the project. tions and renewal forms, all of which (f) A community for which risk pre- instruments of flood insurance may mium rates have been made available bear the name, as Insurer, of the under section 1307(e) of the National issuing WYO Company. In the case of Flood Insurance Act of 1968, as amend- any Standard Flood Insurance Policy, ed, shall notify the Administrator if, at and its related forms, issued by a WYO any time, all progress on the comple- Company, wherever the names ‘‘Fed- tion of the flood protection system has eral Emergency Management Agency’’ been halted or if the project for the and ‘‘Federal Insurance Administra- completion of the flood protection sys- tion’’ appear, the WYO Company is au- tem has been canceled. thorized to substitute its own name [43 FR 2570, Jan. 17, 1978, Redesignated at 44 therefor. Standard Flood Insurance FR 31177, May 31, 1979, as amended at 47 FR Policies issued by WYO Companies 43061 Sept. 30, 1982; 48 FR 39069, Aug. 29, 1983; may be executed by the issuing WYO 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, Company as Insurer, in the place and 1984; 51 FR 30310, Aug. 25, 1986] stead of the Federal Insurance Admin- § 61.13 Standard Flood Insurance Pol- istrator. icy. [43 FR 2570, Jan. 17, 1978. Redesignated at 44 (a) Incorporation of forms. Each of the FR 31177, May 31, 1979, as amended at 44 FR Standard Flood Insurance Policy forms 62517, Oct. 31, 1979; 48 FR 46791, Oct. 14, 1983; included in appendix ‘‘A’’ hereto (Gen- 58 FR 62424, Nov. 26, 1993] eral Property, Dwelling, and Residen- tial Condominium Building Associa- § 61.14 Standard Flood Insurance Pol- icy Interpretations. tion) and by reference incorporated herein shall be incorporated into the (a) Definition. A Standard Flood In- Standard Flood Insurance Policy. surance Policy Interpretation is a writ- (b) Endorsements. All endorsements to ten determination by the Adminis- the Standard Flood Insurance Policy trator construing the scope of the flood shall be final upon publication in the insurance coverage that has been and FEDERAL REGISTER for inclusion in ap- is provided under the policy. pendix A. (b) Publication and requests for inter- (c) Applications. The application and pretation. The Administrator shall, pur- renewal application forms utilized by suant to these regulations from time to the National Flood Insurance Program time, issue interpretative rulings re- shall be the only application forms garding the provisions of the Standard

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Flood Insurance Policy. Such Interpre- (g) The GFIP is the Standard Flood tations shall be published in the FED- Insurance Policy Dwelling Form (a ERAL REGISTER, made a part of appen- copy of which is included in Appendix dix C to these regulations, and incor- A(1) of this part), except that: porated by reference as part of these (1) VI. DEDUCTIBLES does not apply regulations. Any policyholder or per- to the GFIP. A special deductible of son in privity with a policyholder may $200 (applicable separately to any file a request for an interpretation in building loss and any contents loss) ap- writing with the Federal Insurance Ad- plies to insured flood-damage losses ministration, Federal Emergency Man- sustained by the insured property in agement Agency, Washington, DC the course of any subsequent flooding 20472. event during the term of the GFIP. The deductible does not apply to: [43 FR 2570, Jan. 17, 1978. Redesignated at 44 (i) III.C.2. Loss Avoidance Measures; FR 31177, May 31, 1979, as amended at 48 FR 39072, Aug. 29, 1983] or (ii) III. C.3. Condominium Loss As- § 61.16 Probation additional premium. sessments coverage. (2) VII. GENERAL CONDITIONS, E. The additional premium charged pur- Cancellation of Policy by You, does not suant to § 59.24(b) on each policy sold or apply to the GFIP. renewed within a community placed on (3) VII. GENERAL CONDITIONS, H. probation prior to October 1, 1992, is Policy Renewal, does not apply to the $25.00. Where the community was GFIP. placed on probation on or after October 1, 1992, the additional premium charge (h) We will send a notice to the GFIP is $50.00.’’. certificate holders approximately 60 days before the end of the thirty-six [50 FR 36026, Sept. 4, 1985, as amended at 57 month term of the GFIP. The notice FR 19541, May 7, 1992] will encourage them to contact a local insurance agent or producer or a pri- § 61.17 Group Flood Insurance Policy. vate insurance company selling NFIP (a) A Group Flood Insurance Policy policies under the Write Your Own pro- (GFIP) is a policy covering all individ- gram of the NFIP Standard Flood In- uals named by a State as recipients surance Policy, and advise them as to under section 408 of the Stafford Act the amount of coverage they must (42 U.S.C. 5174) of an Individuals and maintain in order not to jeopardize Households Program (IHP) award for their eligibility for future disaster as- flood damage as a result of major dis- sistance. The IHP program will provide aster declaration by the President. the NFIP the amount of flood insur- (b) The premium for the GFIP is a ance coverage to be maintained by cer- flat fee of $600 per insured. We may ad- tificate holders. just the premium to reflect NFIP loss [65 FR 60769, Oct. 12, 2000, as amended at 67 experience and any adjustment of bene- FR 61462, Sept. 30, 2002] fits under the IHP program. (c) The amount of coverage is equiva- APPENDIX A(1) TO PART 61 lent to the maximum grant amount established under section 408 of the Staf- FEDERAL EMERGENCY MANAGEMENT AGENCY, FEDERAL INSURANCE ADMINISTRATION ford Act (42 U.S.C. 5174). (d) The term of the GFIP is for 36 STANDARD FLOOD INSURANCE POLICY months and begins 60 days after the date of the disaster declaration. DWELLING FORM (e) Coverage for individual grantees Please read the policy carefully. The flood begins on the thirtieth day after the insurance provided is subject to limitations, NFIP receives the required data for in- restrictions, and exclusions. This policy cov- dividual grantees and their premium ers only: 1. A non-condominium residential building payments. designed for principal use as a dwelling place (f) We will send a Certificate of Flood of one to four families, or Insurance to each individual insured 2. A single family dwelling unit in a condo- under the GFIP. minium building.

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I. AGREEMENT mium payment must accompany the application. The Federal Emergency Management 4. Base Flood. A flood having a one percent Agency (FEMA) provides flood insurance chance of being equaled or exceeded in any under the terms of the National Flood Insur- given year. ance Act of 1968 and its Amendments, and 5. Basement. Any area of the building, in- Title 44 of the Code of Federal Regulations. cluding any sunken room or sunken portion We will pay you for direct physical loss by of a room, having its floor below ground or from flood to your insured property if level (subgrade) on all sides. you: 6. Building. 1. Have paid the correct premium; a. A structure with two or more outside 2. Comply with all terms and conditions of rigid walls and a fully secured roof, that is this policy; and affixed to a permanent site; 3. Have furnished accurate information and b. A manufactured home (a ‘‘manufactured statements. home,’’ also known as a mobile home, is a We have the right to review the informa- structure: built on a permanent chassis, tion you give us at any time and to revise transported to its site in one or more sec- your policy based on our review. tions, and affixed to a permanent founda- II. DEFINITIONS tion); or c. A travel trailer without wheels, built on A. In this policy, ‘‘you’’ and ‘‘your’’ refer a chassis and affixed to a permanent founda- to the insured(s) shown on the Declarations tion, that is regulated under the commu- Page of this policy and your spouse, if a resi- nity’s floodplain management and building dent of the same household. Insured(s) in- ordinances or laws. cludes: Any mortgagee and loss payee named Building does not mean a gas or liquid stor- in the Application and Declarations Page, as age tank or a recreational vehicle, park well as any other mortgagee or loss payee trailer or other similar vehicle, except as de- determined to exist at the time of loss in the scribed in B.6.c. above. order of precedence. ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ 7. Cancellation. The ending of the insurance refer to the insurer. coverage provided by this policy before the Some definitions are complex because they expiration date. are provided as they appear in the law or 8. Condominium. That form of ownership of regulations, or result from court cases. The real property in which each unit owner has precise definitions are intended to protect an undivided interest in common elements. you. 9. Condominium Association. The entity Flood, as used in this flood insurance pol- made up of the unit owners responsible for icy, means: the maintenance and operation of: 1. A general and temporary condition of a. Common elements owned in undivided partial or complete inundation of two or shares by unit owners; and more acres of normally dry land area or of b. Other real property in which the unit two or more properties (one of which is your owners have use rights; where membership in property) from: the entity is a required condition of unit a. Overflow of inland or tidal waters, ownership. b. Unusual and rapid accumulation or run- 10. Declarations Page. A computer-gen- off of surface waters from any source, erated summary of information you provided c. Mudflow. in the application for insurance. The Dec- 2. Collapse or subsidence of land along the larations Page also describes the term of the shore of a lake or similar body of water as a policy, limits of coverage, and displays the result of erosion or undermining caused by premium and our name. The Declarations waves or currents of water exceeding antici- Page is a part of this flood insurance policy. pated cyclical levels that result in a flood as 11. Described Location. The location where defined in A.1.a. above. the insured building(s) or personal property B. The following are the other key defini- are found. The described location is shown tions we use in this policy: on the Declarations Page. 1. Act. The National Flood Insurance Act of 12. Direct Physical Loss By or From Flood. 1968 and any amendments to it. Loss or damage to insured property, directly 2. Actual Cash Value. The cost to replace an caused by a flood. There must be evidence of insured item of property at the time of loss, physical changes to the property. less the value of its physical depreciation. 13. Dwelling. A building designed for use as 3. Application. The statement made and a residence for no more than four families or signed by you or your agent in applying for a single-family unit in a building under a this policy. The application gives informa- condominium form of ownership. tion we use to determine the eligibility of 14. Elevated Building. A building that has the risk, the kind of policy to be issued, and no basement and that has its lowest elevated the correct premium payment. The applica- floor raised above ground level by foundation tion is part of this flood insurance policy. walls, shear walls, posts, piers, pilings, or For us to issue you a policy, the correct pre- columns.

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15. Emergency Program. The initial phase of full limits of coverage are available under a community’s participation in the National the Act. Flood Insurance Program. During this phase, 26. Special Flood Hazard Area. An area hav- only limited amounts of insurance are avail- ing special flood or mudflow, and/or flood-re- able under the Act. lated erosion hazards, and shown on a Flood 16. Expense Constant. A flat charge you Hazard Boundary Map or Flood Insurance must pay on each new or renewal policy to Rate Map as Zone A, AO, A1–A30, AE, A99, defray the expenses of the Federal Govern- AH, AR, AR/A, AR/AE, AR/AH, AR/AO, AR/ ment related to flood insurance. A1–A30, V1–V30, VE, or V. 17. Federal Policy Fee. A flat charge you 27. Unit. A single-family unit you own in a must pay on each new or renewal policy to condominium building. defray certain administrative expenses in- 28. Valued Policy. A policy in which the incurred in carrying out the National Flood In- sured and the insurer agree on the value of surance Program. This fee covers expenses the property insured, that value being pay- not covered by the Expense Constant. able in the event of a total loss. The Stand- 18. Improvements. Fixtures, alterations, in- ard Flood Insurance Policy is not a valued stallations, or additions comprising a part of policy. the insured dwelling or the apartment in which you reside. III. PROPERTY COVERED 19. Mudflow. A river of liquid and flowing A. Coverage A—Building Property mud on the surface of normally dry land areas, as when earth is carried by a current We insure against direct physical loss by of water. Other earth movements, such as or from flood to: landslide, slope failure, or a saturated soil 1. The dwelling at the described location, mass moving by liquidity down a slope, are or for a period of 45 days at another location not mudflows. as set forth in III.C.2.b., Property Removed 20. National Flood Insurance Program to Safety. (NFIP). The program of flood insurance cov- 2. Additions and extensions attached to erage and floodplain management adminis- and in contact with the dwelling by means of tered under the Act and applicable Federal a rigid exterior wall, a solid load-bearing in- regulations in Title 44 of the Code of Federal terior wall, a stairway, an elevated walkway, Regulations, Subchapter B. or a roof. At your option, additions and ex- 21. Policy. The entire written contract be- tensions connected by any of these methods tween you and us. It includes: may be separately insured. Additions and ex- a. This printed form; tensions attached to and in contact with the b. The application and Declarations Page; building by means of a common interior wall c. Any endorsement(s) that may be issued; that is not a solid load-bearing wall are al- and ways considered part of the dwelling and d. Any renewal certificate indicating that cannot be separately insured. coverage has been instituted for a new policy 3. A detached garage at the described loca- and new policy term. tion. Coverage is limited to no more than Only one dwelling, which you specifically 10% of the limit of liability on the dwelling. described in the application, may be insured Use of this insurance is at your option but under this policy. reduces the building limit of liability. We do 22. Pollutants. Substances that include, but not cover any detached garage used or held are not limited to, any solid, liquid, gaseous, for use for residential (i.e., dwelling), busi- or thermal irritant or contaminant, includ- ness, or farming purposes. ing smoke, vapor, soot, fumes, acids, alkalis, 4. Materials and supplies to be used for chemicals, and waste. ‘‘Waste’’ includes, but construction, alteration, or repair of the is not limited to, materials to be recycled, dwelling or a detached garage while the ma- reconditioned, or reclaimed. terials and supplies are stored in a fully en- 23. Post-FIRM Building. A building for closed building at the described location or which construction or substantial improve- on an adjacent property. ment occurred after December 31, 1974, or on 5. A building under construction, alter- or after the effective date of an initial Flood ation, or repair at the described location. Insurance Rate Map (FIRM), whichever is a. If the structure is not yet walled or later. roofed as described in the definition for 24. Probation Premium. A flat charge you building (see II.B.6.a.) then coverage applies: must pay on each new or renewal policy (1) Only while such work is in progress; or issued covering property in a community the (2) If such work is halted, only for a period NFIP has placed on probation under the proof up to 90 continuous days thereafter. visions of 44 CFR 59.24. b. However, coverage does not apply until 25. Regular Program. The final phase of a the building is walled and roofed if the low- community’s participation in the National est floor, including the basement floor, of a Flood Insurance Program. In this phase, a non-elevated building or the lowest elevated Flood Insurance Rate Map is in effect and floor of an elevated building is:

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(1) Below the base flood elevation in Zones (2) Cisterns and the water in them; AH, AE, A1–A30, AR, AR/AE, AR/AH, AR/A1– (3) Drywall for walls and ceilings in a base- A30, AR/A, AR/AO; or ment and the cost of labor to nail it, unfin- (2) Below the base flood elevation adjusted ished and unfloated and not taped, to the to include the effect of wave action in Zones framing; VE or V1–V30. (4) Electrical junction and circuit breaker The lowest floor levels are based on the boxes; bottom of the lowest horizontal structural (5) Electrical outlets and switches; member of the floor in Zones VE or V1–V30 (6) Elevators, dumbwaiters and related and the top of the floor in Zones AH, AE, A1– equipment, except for related equipment in- A30, AR, AR/AE, AR/AH, AR/A1–A30, AR/A, stalled below the base flood elevation after AR/AO. September 30, 1987; 6. A manufactured home or a travel trailer (7) Fuel tanks and the fuel in them; as described in the Definitions section (see (8) Furnaces and hot water heaters; II.B.6.b. and II.B.6.c.). (9) Heat pumps; If the manufactured home or travel trailer (10) Nonflammable insulation in a base- is in a special flood hazard area, it must be ment; anchored in the following manner at the (11) Pumps and tanks used in solar energy time of the loss: systems; a. By over-the-top or frame ties to ground (12) Stairways and staircases attached to anchors; or the building, not separated from it by ele- b. In accordance with the manufacturer’s vated walkways; specifications; or (13) Sump pumps; c. In compliance with the community’s (14) Water softeners and the chemicals in floodplain management requirements unless them, water filters, and faucets installed as it has been continuously insured by the an integral part of the plumbing system; NFIP at the same described location since (15) Well water tanks and pumps; September 30, 1982. (16) Required utility connections for any 7. The following items of property which item in this list; and are covered under Coverage A only: (17) Footings, foundations, posts, pilings, a. Awnings and canopies; piers, or other foundation walls and anchor- b. Blinds; age systems required to support a building. c. Built-in dishwashers; b. Clean-up. d. Built-in microwave ovens; e. Carpet permanently installed over unfin- B. Coverage B—Personal Property ished flooring; f. Central air conditioners; 1. If you have purchased personal property g. Elevator equipment; coverage, we insure against direct physical h. Fire sprinkler systems; loss by or from flood to personal property in- i. Walk-in freezers; side a building at the described location, if: j. Furnaces and radiators; a. The property is owned by you or your k. Garbage disposal units; household family members; and l. Hot water heaters, including solar water b. At your option, the property is owned by heaters; guests or servants. m. Light fixtures; Personal property is also covered for a pe- n. Outdoor antennas and aerials fastened riod of 45 days at another location as set to buildings; forth in III.C.2.b., Property Removed to Safe- o. Permanently installed cupboards, book- ty. cases, cabinets, paneling, and wallpaper; Personal property in a building that is not p. Plumbing fixtures; fully enclosed must be secured to prevent q. Pumps and machinery for operating flotation out of the building. If the personal pumps; property does float out during a flood, it will r. Ranges, cooking stoves, and ovens; be conclusively presumed that it was not s. Refrigerators; and reasonably secured. In that case there is no t. Wall mirrors, permanently installed. coverage for such property. 8. Items of property in a building enclosure 2. Coverage for personal property includes below the lowest elevated floor of an ele- the following property, subject to B.1. above, vated post-FIRM building located in Zones which is covered under Coverage B only: A1–A30, AE, AH, AR, AR/A, AR/AE, AR/AH, a. Air conditioning units, portable or win- AR/A1–A30, V1–V30, or VE, or in a basement, dow type; regardless of the zone. Coverage is limited to b. Carpets, not permanently installed, over the following: unfinished flooring; a. Any of the following items, if installed c. Carpets over finished flooring; in their functioning locations and, if nec- d. Clothes washers and dryers; essary for operation, connected to a power e. ‘‘Cook-out’’ grills; source: f. Food freezers, other than walk-in, and (1) Central air conditioners; food in any freezer; and

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g. Portable microwave ovens and portable 2. Loss Avoidance Measures dishwashers. a. Sandbags, Supplies, and Labor 3. Coverage for items of property in a (1) We will pay up to $1,000 for costs you building enclosure below the lowest elevated incur to protect the insured building from a floor of an elevated post-FIRM building lo- flood or imminent danger of flood, for the cated in Zones A1–A30, AE, AH, AR, AR/A, following: AR/AE, AR/AH, AR/A1–A30, V1–V30, or VE, or (a) Your reasonable expenses to buy: in a basement, regardless of the zone, is lim- (i) Sandbags, including sand to fill them; ited to the following items, if installed in their functioning locations and, if necessary (ii) Fill for temporary levees; for operation, connected to a power source: (iii) Pumps; and a. Air conditioning units, portable or win- (iv) Plastic sheeting and lumber used in dow type; connection with these items. b. Clothes washers and dryers; and (b) The value of work, at the Federal min- c. Food freezers, other than walk-in, and imum wage, that you or a member of your food in any freezer. household perform. 4. If you are a tenant and have insured per- (2) This coverage for Sandbags, Supplies sonal property under Coverage B in this pol- and Labor only applies if damage to insured icy, we will cover such property, including property by or from flood is imminent and your cooking stove or range and refrigerator. the threat of flood damage is apparent The policy will also cover improvements enough to lead a person of common prudence made or acquired solely at your expense in to anticipate flood damage. One of the fol- the dwelling or apartment in which you re- lowing must also occur: side, but for not more than 10% of the limit (a) A general and temporary condition of of liability shown for personal property on flooding in the area near the described loca- the Declarations Page. Use of this insurance is at your option but reduces the personal tion must occur, even if the flood does not property limit of liability. reach the building; or 5. If you are the owner of a unit and have (b) A legally authorized official must issue insured personal property under Coverage B an evacuation order or other civil order for in this policy, we will also cover your inte- the community in which the building is lo- rior walls, floor, and ceiling (not otherwise cated calling for measures to preserve life covered under a flood insurance policy pur- and property from the peril of flood. chased by your condominium association) for This coverage does not increase the Cov- not more than 10% of the limit of liability erage A or Coverage B Limit of Liability. shown for personal property on the Declara- b. Property Removed to Safety tions Page. Use of this insurance is at your (1) We will pay up to $1,000 for the reason- option but reduces the personal property able expenses you incur to move insured limit of liability. property to a place other than the described 6. Special Limits. We will pay no more location that contains the property in order than $2,500 for any one loss to one or more of to protect it from flood or the imminent dan- the following kinds of personal property: ger of flood. a. Artwork, photographs, collectibles, or Reasonable expenses include the value of memorabilia, including but not limited to, work, at the Federal minimum wage, you or porcelain or other figures, and sports cards; a member of your household perform. b. Rare books or autographed items; c. Jewelry, watches, precious and semi-pre- (2) If you move insured property to a loca- cious stones, or articles of gold, silver, or tion other than the described location that platinum; contains the property, in order to protect it d. Furs or any article containing fur which from flood or the imminent danger of flood, represents its principal value; or we will cover such property while at that lo- e. Personal property used in any business. cation for a period of 45 consecutive days 7. We will pay only for the functional value from the date you begin to move it there. of antiques. The personal property that is moved must be placed in a fully enclosed building or other- C. Coverage C—Other Coverages wise reasonably protected from the elements. 1. Debris Removal. a. We will pay the expense to remove non- Any property removed, including a move- owned debris that is on or in insured prop- able home described in II.6.b.and c., must be erty and debris of insured property any- placed above ground level or outside of the where. special flood hazard area. b. If you or a member of your household This coverage does not increase the Cov- perform the removal work, the value of your erage A or Coverage B Limit of Liability. work will be based on the Federal minimum 3. Condominium Loss Assessments. wage. a. If this policy insures a unit, we will pay, c. This coverage does not increase the Cov- up to the Coverage A limit of liability, your erage A or Coverage B Limit of Liability. share of loss assessments charged against

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you by the condominium association in ac- which only applies to policies with building cordance with the condominium associa- coverage (Coverage A). Our payment of tion’s articles of association, declarations claims under Coverage D is in addition to the and your deed. amount of coverage which you selected on The assessment must be made as a result the application and which appears on the of direct physical loss by or from flood dur- Declarations Page. But the maximum you ing the policy term, to the building’s com- can collect under this policy for both Cov- mon elements. erage A—Building Property and Coverage b. We will not pay any loss assessment D—Increased Cost of Compliance cannot ex- charged against you: ceed the maximum permitted under the Act. (1) And the condominium association by We do not charge a separate deductible for a any governmental body; claim under Coverage D. (2) That results from a deductible under 3. Eligibility the insurance purchased by the condo- a. A structure covered under Coverage A— minium association insuring common ele- Building Property sustaining a loss caused ments; by a flood as defined by this policy must: (3) That results from a loss to personal (1) Be a ‘‘repetitive loss structure.’’ A re- property, including contents of a condo- petitive loss structure is one that meets the minium building; following conditions: (4) That results from a loss sustained by (a) The structure is covered by a contract the condominium association that was not of flood insurance issued under the NFIP. reimbursed under a flood insurance policy (b) The structure has suffered flood damage written in the name of the association under on two occasions during a 10-year period the Act because the building was not, at the which ends on the date of the second loss. time of loss, insured for an amount equal to (c) The cost to repair the flood damage, on the lesser of: average, equaled or exceeded 25% of the mar- (a) 80% or more of its full replacement ket value of the structure at the time of cost; or each flood loss. (b) The maximum amount of insurance per- (d) In addition to the current claim, the mitted under the Act; NFIP must have paid the previous qualifying (5) To the extent that payment under this claim, and the State or community must policy for a condominium building loss, in have a cumulative, substantial damage pro- combination with payments under any other vision or repetitive loss provision in its NFIP policies for the same building loss, ex- floodplain management law or ordinance ceeds the maximum amount of insurance being enforced against the structure; or permitted under the Act for that kind of (2) Be a structure that has had flood dam- building; or age in which the cost to repair equals or ex- (6) To the extent that payment under this ceeds 50% of the market value of the struc- policy for a condominium building loss, in ture at the time of the flood. The State or combination with any recovery available to community must have a substantial damage you as a tenant in common under any NFIP provision in its floodplain management law condominium association policies for the or ordinance being enforced against the same building loss, exceeds the amount of in- structure. surance permitted under the Act for a single- b. This Coverage D pays you to comply family dwelling. with State or local floodplain management Loss assessment coverage does not in- laws or ordinances that meet the minimum crease the Coverage A Limit of Liability. standards of the National Flood Insurance Program found in the Code of Federal Regu- D. Coverage D—Increased Cost of Compliance lations at 44 CFR 60.3. We pay for compliance 1. General. activities that exceed those standards under This policy pays you to comply with a these conditions: State or local floodplain management law or (1) 3.a.(1) above. ordinance affecting repair or reconstruction (2) Elevation or floodproofing in any risk of a structure suffering flood damage. Com- zone to preliminary or advisory base flood pliance activities eligible for payment are: elevations provided by FEMA which the elevation, floodproofing, relocation, or dem- State or local government has adopted and is olition (or any combination of these activi- enforcing for flood-damaged structures in ties) of your structure. Eligible floodproofing such areas. (This includes compliance activi- activities are limited to: ties in B, C, X, or D zones which are being a. Non-residential structures. changed to zones with base flood elevations. b. Residential structures with basements This also includes compliance activities in that satisfy FEMA’s standards published in zones where base flood elevations are being the Code of Federal Regulations [44 CFR 60.6 increased, and a flood-damaged structure (b) or (c)]. must comply with the higher advisory base 2. Limit of Liability. flood elevation.) Increased Cost of Compli- We will pay you up to $20,000 under this ance coverage does not apply to situations in Coverage D—Increased Cost of Compliance, B, C, X, or D zones where the community has

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derived its own elevations and is enforcing tralize, or in any way respond to, or assess elevation or floodproofing requirements for the effects of pollutants. flood-damaged structures to elevations de- c. The loss in value to any insured building rived solely by the community. or other structure due to the requirements of (3) Elevation or floodproofing above the any ordinance or law. base flood elevation to meet State or local d. The loss in residual value of the ‘‘freeboard’’ requirements, i.e., that a struc- undamaged portion of a building demolished ture must be elevated above the base flood as a consequence of enforcement of any elevation. State or local floodplain management law or c. Under the minimum NFIP criteria at 44 ordinance. CFR 60.3(b)(4), States and communities must e. Any Increased Cost of Compliance under require the elevation or floodproofing of this Coverage D: structures in unnumbered A zones to the (1) Until the building is elevated, base flood elevation where elevation data is floodproofed, demolished, or relocated on the obtained from a Federal, State, or other same or to another premises; and source. Such compliance activities are also (2) Unless the building is elevated, eligible for Coverage D. floodproofed, demolished, or relocated as d. This coverage will also pay for the incre- soon as reasonably possible after the loss, mental cost, after demolition or relocation, not to exceed two years. of elevating or floodproofing a structure dur- f. Any code upgrade requirements, e.g., ing its rebuilding at the same or another site plumbing or electrical wiring, not specifically related to the State or local floodplain to meet State or local floodplain manage- management law or ordinance. ment laws or ordinances, subject to Exclu- g. Any compliance activities needed to sion D.5.g. below. bring additions or improvements made after e. This coverage will also pay to bring a the loss occurred into compliance with State flood-damaged structure into compliance or local floodplain management laws or ordi- with state or local floodplain management nances. laws or ordinances even if the structure had h. Loss due to any ordinance or law that received a variance before the present loss you were required to comply with before the from the applicable floodplain management current loss. requirements. i. Any rebuilding activity to standards 4. Conditions. that do not meet the NFIP’s minimum re- a. When a structure covered under Cov- quirements. This includes any situation erage A—Building Property sustains a loss where the insured has received from the caused by a flood, our payment for the loss State or community a variance in connec- under this Coverage D will be for the in- tion with the current flood loss to rebuild creased cost to elevate, floodproof, relocate, the property to an elevation below the base or demolish (or any combination of these ac- flood elevation. tivities) caused by the enforcement of cur- j. Increased Cost of Compliance for a ga- rent State or local floodplain management rage or carport. ordinances or laws. Our payment for eligible k. Any structure insured under an NFIP demolition activities will be for the cost to Group Flood Insurance Policy. demolish and clear the site of the building l. Assessments made by a condominium as- debris or a portion thereof caused by the en- sociation on individual condominium unit forcement of current State or local flood- owners to pay increased costs of repairing plain management ordinances or laws. Eligi- commonly owned buildings after a flood in ble activities for the cost of clearing the site compliance with State or local floodplain will include those necessary to discontinue management ordinances or laws. utility service to the site and ensure proper 6. Other Provisions. abandonment of on-site utilities. a. Increased Cost of Compliance coverage b. When the building is repaired or rebuilt, will not be included in the calculation to de- it must be intended for the same occupancy termine whether coverage meets the 80% in- as the present building unless otherwise re- surance-to-value requirement for replace- quired by current floodplain management or- ment cost coverage as set forth in VII. Gen- dinances or laws. eral Conditions, V. Loss Settlement. 5. Exclusions. b. All other conditions and provisions of Under this Coverage D (Increased Cost of the policy apply. Compliance) we will not pay for: a. The cost to comply with any floodplain IV. PROPERTY NOT COVERED management law or ordinance in commu- We do not cover any of the following: nities participating in the Emergency Pro- 1. Personal property not inside a building; gram. 2. A building, and personal property in it, b. The cost associated with enforcement of located entirely in, on, or over water or sea- any ordinance or law that requires any in- ward of mean high tide if it was constructed sured or others to test for, monitor, clean up, or substantially improved after September remove, contain, treat, detoxify or neu- 30, 1982;

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3. Open structures, including a building V. EXCLUSIONS used as a boathouse or any structure or A. We only pay for direct physical loss by building into which boats are floated, and or from flood, which means that we do not personal property located in, on, or over pay you for: water; 1. Loss of revenue or profits; 4. Recreational vehicles other than travel 2. Loss of access to the insured property or trailers described in the Definitions section described location; (see II.B.6.c.) whether affixed to a permanent 3. Loss of use of the insured property or de- foundation or on wheels; scribed location; 5. Self-propelled vehicles or machines, in- 4. Loss from interruption of business or cluding their parts and equipment. However, production; we do cover self-propelled vehicles or ma- 5. Any additional living expenses incurred chines not licensed for use on public roads while the insured building is being repaired that are: or is unable to be occupied for any reason; a. Used mainly to service the described lo- 6. The cost of complying with any ordinance or law requiring or regulating the con- cation or struction, demolition, remodeling, renova- b. Designed and used to assist handicapped tion, or repair of property, including removal persons, while the vehicles or machines are of any resulting debris. This exclusion does inside a building at the described location; not apply to any eligible activities we de- 6. Land, land values, lawns, trees, shrubs, scribe in Coverage D—Increased Cost of Com- plants, growing crops, or animals; pliance; or 7. Accounts, bills, coins, currency, deeds, 7. Any other economic loss you suffer. evidences of debt, medals, money, scrip, B. We do not insure a loss directly or indi- stored value cards, postage stamps, securi- rectly caused by a flood that is already in ties, bullion, manuscripts, or other valuable progress at the time and date: papers; 1. The policy term begins; or 8. Underground structures and equipment, 2. Coverage is added at your request. including wells, septic tanks, and septic sys- C. We do not insure for loss to property tems; caused directly by earth movement even if 9. Those portions of walks, walkways, the earth movement is caused by flood. Some decks, driveways, patios and other surfaces, examples of earth movement that we do not all whether protected by a roof or not, lo- cover are: cated outside the perimeter, exterior walls of 1. Earthquake; 2. Landslide; the insured building or the building in which 3. Land subsidence; the insured unit is located; 4. Sinkholes; 10. Containers, including related equip- 5. Destabilization or movement of land ment, such as, but not limited to, tanks con- that results from accumulation of water in taining gases or liquids; subsurface land area; or 11. Buildings or units and all their con- 6. Gradual erosion. tents if more than 49% of the actual cash We do, however, pay for losses from mud- value of the building is below ground, unless flow and land subsidence as a result of ero- the lowest level is at or above the base flood sion that are specifically covered under our elevation and is below ground by reason of definition of flood (see II.A.1.c. and II.A.2.). earth having been used as insulation mate- D. We do not insure for direct physical loss rial in conjunction with energy efficient caused directly or indirectly by any of the building techniques; following: 12. Fences, retaining walls, seawalls, bulk- 1. The pressure or weight of ice; heads, wharves, piers, bridges, and docks; 2. Freezing or thawing; 13. Aircraft or watercraft, or their fur- 3. Rain, snow, sleet, hail, or water spray; nishings and equipment; 4. Water, moisture, mildew, or mold dam- 14. Hot tubs and spas that are not bath- age that results primarily from any condition: room fixtures, and swimming pools, and a. Substantially confined to the dwelling; their equipment, such as, but not limited to, or heaters, filters, pumps, and pipes, wherever b. That is within your control, including located; but not limited to: 15. Property not eligible for flood insur- (1) Design, structural, or mechanical de- ance pursuant to the provisions of the Coast- fects; al Barrier Resources Act and the Coastal (2) Failure, stoppage, or breakage of water Barrier Improvement Act and amendments or sewer lines, drains, pumps, fixtures, or to these Acts; equipment; or 16. Personal property you own in common (3) Failure to inspect and maintain the with other unit owners comprising the mem- property after a flood recedes; bership of a condominium association. 5. Water or water-borne material that:

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a. Backs up through sewers or drains; 1. An amount equal to the cost of replacing b. Discharges or overflows from a sump, the lost, damaged, or destroyed article, sump pump or related equipment; or minus its depreciation, or c. Seeps or leaks on or through the covered 2. The amount that represents the fair pro- property; portion of the total value of the pair or set unless there is a flood in the area and the that the lost, damaged, or destroyed article flood is the proximate cause of the sewer or bears to the pair or set. drain backup, sump pump discharge or over- B. Concealment or Fraud and Policy Voidance flow, or the seepage of water; 6. The pressure or weight of water unless 1. With respect to all insureds under this there is a flood in the area and the flood is policy, this policy: the proximate cause of the damage from the a. Is void; pressure or weight of water; b. Has no legal force or effect; 7. Power, heating, or cooling failure unless c. Cannot be renewed; and the failure results from direct physical loss d. Cannot be replaced by a new NFIP pol- by or from flood to power, heating, or cool- icy, if, before or after a loss, you or any ing equipment on the described location; other insured or your agent have at any 8. Theft, fire, explosion, wind, or wind- time: storm; (1) Intentionally concealed or misrepre- 9. Anything you or any member of your sented any material fact or circumstance; household do or conspires to do to delib- (2) Engaged in fraudulent conduct; or erately cause loss by flood; or (3) Made false statements; relating to this 10. Alteration of the insured property that policy or any other NFIP insurance. significantly increases the risk of flooding. 2. This policy will be void as of the date E. We do not insure for loss to any building wrongful acts described in B.1.above were or personal property located on land leased committed. from the Federal Government, arising from 3. Fines, civil penalties, and imprisonment or incident to the flooding of the land by the under applicable Federal laws may also Federal Government, where the lease ex- apply to the acts of fraud or concealment de- pressly holds the Federal Government harm- scribed above. less under flood insurance issued under any 4. This policy is also void for reasons other Federal Government program. than fraud, misrepresentation, or wrongful act. This policy is void from its inception F. We do not pay for the testing for or and has no legal force under the following monitoring of pollutants unless required by conditions: law or ordinance. a. If the property is located in a commu- VI. DEDUCTIBLES nity that was not participating in the NFIP on the policy’s inception date and did not A. When a loss is covered under this policy, join or reenter the program during the policy we will pay only that part of the loss that term and before the loss occurred; or exceeds your deductible amount, subject to b. If the property listed on the application the limit of liability that applies. The de- is otherwise not eligible for coverage under ductible amount is shown on the Declara- the NFIP. tions Page. However, when a building under construc- C. Other Insurance tion, alteration, or repair does not have at 1. If a loss covered by this policy is also least two rigid exterior walls and a fully se- covered by other insurance that includes cured roof at the time of loss, your deduct- flood coverage not issued under the Act, we ible amount will be two times the deductible will not pay more than the amount of insur- that would otherwise apply to a completed ance you are entitled to for lost, damaged, or building. destroyed property insured under this policy B. In each loss from flood, separate subject to the following: deductibles apply to the building and per- a. We will pay only the proportion of the sonal property insured by this policy. loss that the amount of insurance that ap- C. The deductible does NOT apply to: plies under this policy bears to the total 1. III.C.2. Loss Avoidance Measures; amount of insurance covering the loss, un- 2. III.C.3. Condominium Loss Assessments; less C.1.b. or c. immediately below applies. or b. If the other policy has a provision stat- 3. III.D. Increased Cost of Compliance. ing that it is excess insurance, this policy will be primary. VII. GENERAL CONDITIONS c. This policy will be primary (but subject to its own deductible) up to the deductible in A. Pair and Set Clause the other flood policy (except another policy In case of loss to an article that is part of as described in C.1.b. above). When the other a pair or set, we will have the option of pay- deductible amount is reached, this policy ing you: will participate in the same proportion that

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the amount of insurance under this policy amount of coverage to the originally re- bears to the total amount of both policies, quested amount effective to the beginning of for the remainder of the loss. the current policy term (or subsequent date 2. If there is other insurance in the name of of any endorsement changing the amount of your condominium association covering the coverage). same property covered by this policy, then (2) If we determine before you have a flood this policy will be in excess over the other loss that the rating information we have is insurance. incomplete and prevents us from calculating the additional premium, we will ask you to D. Amendments, Waivers, Assignment send the required information. You must This policy cannot be changed nor can any submit the information within 60 days of our of its provisions be waived without the ex- request. Once we determine the amount of press written consent of the Federal Insur- additional premium for the current policy ance Administrator. No action we take under term, we will follow the procedure in the terms of this policy constitutes a waiver G.2.a.(1) above. of any of our rights. You may assign this pol- (3) If we do not receive the additional pre- icy in writing when you transfer title of your mium (or additional information) by the property to someone else except under these date it is due, the amount of coverage can conditions: only be increased by endorsement subject to 1. When this policy covers only personal any appropriate waiting period. property; or b. Discovery of Insufficient Premium or In- 2. When this policy covers a structure dur- complete Rating Information After a Loss: ing the course of construction. (1) If we discover after you have a flood loss that your premium payment was not E. Cancellation of the Policy by You enough to buy the requested amount of cov- 1. You may cancel this policy in accord- erage, we will send you and any mortgagee ance with the applicable rules and regula- or trustee known to us a bill for the required tions of the NFIP. additional premium for the current and the 2. If you cancel this policy, you may be en- prior policy terms. If you or the mortgagee titled to a full or partial refund of premium or trustee pay the additional premium with- also under the applicable rules and regula- in 30 days of the date of our bill, we will re- tions of the NFIP. form the policy to increase the amount of coverage to the originally requested amount F. Non-Renewal of the Policy by Us effective to the beginning of the prior policy Your policy will not be renewed: term. 1. If the community where your covered (2) If we discover after you have a flood property is located stops participating in the loss that the rating information we have is NFIP, or incomplete and prevents us from calculating 2. If your building has been declared ineli- the additional premium, we will ask you to gible under section 1316 of the Act. send the required information. You must submit the information before your claim G. Reduction and Reformation of Coverage can be paid. Once we determine the amount 1. If the premium we received from you was of additional premium for the current and not enough to buy the kind and amount of prior policy terms, we will follow the proce- coverage you requested, we will provide only dure in G.2.b.(1) above. the amount of coverage that can be pur- (3) If we do not receive the additional pre- chased for the premium payment we re- mium by the date it is due, your flood insur- ceived. ance claim will be settled based on the re- 2. The policy can be reformed to increase duced amount of coverage. The amount of the amount of coverage resulting from the coverage can only be increased by endorse- reduction described in G.1. above to the ment subject to any appropriate waiting pe- amount you requested as follows: riod. a. Discovery of Insufficient Premium or In- 3. However, if we find that you or your complete Rating Information Before a Loss: agent intentionally did not tell us, or fal- (1) If we discover before you have a flood sified, any important fact or circumstance or loss that your premium payment was not did anything fraudulent relating to this in- enough to buy the requested amount of cov- surance, the provisions of Condition B. Con- erage, we will send you and any mortgagee cealment or Fraud and Policy Voidance or trustee known to us a bill for the required apply. additional premium for the current policy H. Policy Renewal term (or that portion of the current policy term following any endorsement changing 1. This policy will expire at 12:01 a.m. on the amount of coverage). If you or the mort- the last day of the policy term. gagee or trustee pay the additional premium 2. We must receive the payment of the ap- within 30 days from the date of our bill, we propriate renewal premium within 30 days of will reform the policy to increase the the expiration date.

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3. If we find, however, that we did not place g. Names of mortgagees or anyone else your renewal notice into the U.S. Postal having a lien, charge, or claim against the Service, or if we did mail it, we made a mis- insured property; take, e.g., we used an incorrect, incomplete, h. Details about who occupied any insured or illegible address, which delayed its deliv- building at the time of loss and for what pur- ery to you before the due date for the re- pose; and newal premium, then we will follow these i. The inventory of damaged personal prop- procedures: erty described in J.3. above. a. If you or your agent notified us, not 5. In completing the proof of loss, you must later than one year after the date on which use your own judgment concerning the the payment of the renewal premium was amount of loss and justify that amount. due, of non-receipt of a renewal notice before 6. You must cooperate with the adjuster or the due date for the renewal premium, and representative in the investigation of the we determine that the circumstances in the claim. preceding paragraph apply, we will mail a 7. The insurance adjuster whom we hire to second bill providing a revised due date, investigate your claim may furnish you with which will be 30 days after the date on which a proof of loss form, and she or he may help the bill is mailed. you complete it. However, this is a matter of b. If we do not receive the premium re- courtesy only, and you must still send us a quested in the second bill by the revised due proof of loss within 60 days after the loss date, then we will not renew the policy. In even if the adjuster does not furnish the that case, the policy will remain an expired form or help you complete it. policy as of the expiration date shown on the 8. We have not authorized the adjuster to Declarations Page. approve or disapprove claims or to tell you 4. In connection with the renewal of this whether we will approve your claim. policy, we may ask you during the policy 9. At our option, we may accept the adjust- term to recertify, on a Recertification Ques- er’s report of the loss instead of your proof of tionnaire we will provide to you, the rating loss. The adjuster’s report will include infor- information used to rate your most recent mation about your loss and the damages you application for or renewal of insurance. sustained. You must sign the adjuster’s report. At our option, we may require you to I. Conditions Suspending or Restricting swear to the report. Insurance K. Our Options After a Loss We are not liable for loss that occurs while Options we may, in our sole discretion, ex- there is a hazard that is increased by any ercise after loss include the following: means within your control or knowledge. 1. At such reasonable times and places that J. Requirements in Case of Loss we may designate, you must: a. Show us or our representative the dam- In case of a flood loss to insured property, aged property; you must: b. Submit to examination under oath, 1. Give prompt written notice to us; while not in the presence of another insured, 2. As soon as reasonably possible, separate and sign the same; and the damaged and undamaged property, put- c. Permit us to examine and make extracts ting it in the best possible order so that we and copies of: may examine it; (1) Any policies of property insurance in- 3. Prepare an inventory of damaged prop- suring you against loss and the deed estab- erty showing the quantity, description, ac- lishing your ownership of the insured real tual cash value, and amount of loss. Attach property; all bills, receipts, and related documents; (2) Condominium association documents 4. Within 60 days after the loss, send us a including the Declarations of the condo- proof of loss, which is your statement of the minium, its Articles of Association or Incor- amount you are claiming under the policy poration, Bylaws, rules and regulations, and signed and sworn to by you, and which fur- other relevant documents if you are a unit nishes us with the following information: owner in a condominium building; and a. The date and time of loss; (3) All books of accounts, bills, invoices b. A brief explanation of how the loss hap- and other vouchers, or certified copies per- pened; taining to the damaged property if the origi- c. Your interest (for example, ‘‘owner’’) nals are lost. and the interest, if any, of others in the dam- 2. We may request, in writing, that you aged property; furnish us with a complete inventory of the d. Details of any other insurance that may lost, damaged or destroyed property, includ- cover the loss; ing: e. Changes in title or occupancy of the cov- a. Quantities and costs; ered property during the term of the policy; b. Actual cash values or replacement cost f. Specifications of damaged buildings and (whichever is appropriate); detailed repair estimates; c. Amounts of loss claimed;

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d. Any written plans and specifications for you or we may request that the choice be repair of the damaged property that you can made by a judge of a court of record in the reasonably make available to us; and state where the covered property is located. e. Evidence that prior flood damage has The appraisers will separately state the ac- been repaired. tual cash value, the replacement cost, and 3. If we give you written notice within 30 the amount of loss to each item. If the ap- days after we receive your signed, sworn praisers submit a written report of an agree- proof of loss, we may: ment to us, the amount agreed upon will be a. Repair, rebuild, or replace any part of the amount of loss. If they fail to agree, they the lost, damaged, or destroyed property will submit their differences to the umpire. with material or property of like kind and A decision agreed to by any two will set the quality or its functional equivalent; and amount of actual cash value and loss, or if it b. Take all or any part of the damaged applies, the replacement cost and loss. property at the value that we agree upon or Each party will: its appraised value. 1. Pay its own appraiser; and 2. Bear the other expenses of the appraisal L. No Benefit to Bailee and umpire equally. No person or organization, other than you, having custody of covered property will ben- Q. Mortgage Clause efit from this insurance. The word ‘‘mortgagee’’ includes trustee. Any loss payable under Coverage A—Build- M. Loss Payment ing Property will be paid to any mortgagee 1. We will adjust all losses with you. We of whom we have actual notice, as well as will pay you unless some other person or en- any other mortgagee or loss payee deter- tity is named in the policy or is legally enti- mined to exist at the time of loss, and you, tled to receive payment. Loss will be payable as interests appear. If more than one mort- 60 days after we receive your proof of loss (or gagee is named, the order of payment will be within 90 days after the insurance adjuster the same as the order of precedence of the files the adjuster’s report signed and sworn mortgages. to by you in lieu of a proof of loss) and: If we deny your claim, that denial will not a. We reach an agreement with you; apply to a valid claim of the mortgagee, if b. There is an entry of a final judgment; or the mortgagee: c. There is a filing of an appraisal award 1. Notifies us of any change in the owner- with us, as provided in VII. P. ship or occupancy, or substantial change in 2. If we reject your proof of loss in whole or risk of which the mortgagee is aware; in part you may: 2. Pays any premium due under this policy a. Accept our denial of your claim; on demand if you have neglected to pay the b. Exercise your rights under this policy; premium; and or 3. Submits a signed, sworn proof of loss c. File an amended proof of loss as long as within 60 days after receiving notice from us it is filed within 60 days of the date of the of your failure to do so. loss. All of the terms of this policy apply to the N. Abandonment mortgagee. The mortgagee has the right to receive loss You may not abandon to us damaged or payment even if the mortgagee has started undamaged property insured under this pol- foreclosure or similar action on the building. icy. If we decide to cancel or not renew this policy, it will continue in effect for the ben- O. Salvage efit of the mortgagee only for 30 days after We may permit you to keep damaged prop- we notify the mortgagee of the cancellation erty insured under this policy after a loss, or non-renewal. and we will reduce the amount of the loss If we pay the mortgagee for any loss and proceeds payable to you under the policy by deny payment to you, we are subrogated to the value of the salvage. all the rights of the mortgagee granted under the mortgage on the property. Sub- P. Appraisal rogation will not impair the right of the If you and we fail to agree on the actual mortgagee to recover the full amount of the cash value or, if applicable, replacement cost mortgagee’s claim. of your damaged property to settle upon the R. Suit Against Us amount of loss, then either may demand an appraisal of the loss. In this event, you and You may not sue us to recover money we will each choose a competent and impar- under this policy unless you have complied tial appraiser within 20 days after receiving with all the requirements of the policy. If a written request from the other. The two you do sue, you must start the suit within appraisers will choose an umpire. If they one year after the date of the written denial cannot agree upon an umpire within 15 days, of all or part of the claim, and you must file

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the suit in the United States District Court in the climate. These lakes may overtop of the district in which the covered property their basins on rare occasions.) Under this was located at the time of loss. This require- paragraph T.2., we will pay your claim as if ment applies to any claim that you may the building is a total loss even though it have under this policy and to any dispute has not been continuously inundated for 90 that you may have arising out of the han- days, subject to the following conditions: dling of any claim under the policy. a. Lake flood waters must damage or im- minently threaten to damage your building. S. Subrogation b. Before approval of your claim, you must: Whenever we make a payment for a loss (1) Agree to a claim payment that reflects under this policy, we are subrogated to your your buying back the salvage on a nego- right to recover for that loss from any other tiated basis; and person. That means that your right to re- (2) Grant the conservation easement de- cover for a loss that was partly or totally scribed in FEMA’s ‘‘Policy Guidance for caused by someone else is automatically Closed Basin Lakes’’ to be recorded in the of- transferred to us, to the extent that we have fice of the local recorder of deeds. FEMA, in paid you for the loss. We may require you to consultation with the community in which acknowledge this transfer in writing. After the property is located, will identify on a the loss, you may not give up our right to re- map an area or areas of special consideration cover this money or do anything that would (ASC) in which there is a potential for flood prevent us from recovering it. If you make damage from continuous lake flooding. any claim against any person who caused FEMA will give the community the agreed- your loss and recover any money, you must upon map showing the ASC. This easement pay us back first before you may keep any of will only apply to that portion of the prop- that money. erty in the ASC. It will allow certain agricultural and recreational uses of the land. T. Continuous Lake Flooding The only structures it will allow on any por- 1. If an insured building has been flooded tion of the property within the ASC are cer- by rising lake waters continuously for 90 tain simple agricultural and recreational days or more and it appears reasonably cer- structures. If any of these allowable struc- tain that a continuation of this flooding will tures are insurable buildings under the NFIP result in a covered loss to the insured build- and are insured under the NFIP, they will ing equal to or greater than the building pol- not be eligible for the benefits of this para- icy limits plus the deductible or the max- graph T.2. If a U.S. Army Corps of Engineers imum payable under the policy for any one certified flood control project or otherwise building loss, we will pay you the lesser of certified flood control project later protects these two amounts without waiting for the the property, FEMA will, upon request, further damage to occur if you sign a release amend the ASC to remove areas protected by agreeing: those projects. The restrictions of the ease- a. To make no further claim under this ment will then no longer apply to any por- policy; tion of the property removed from the ASC; b. Not to seek renewal of this policy; and c. Not to apply for any flood insurance (3) Comply with paragraphs T.1.a. through under the Act for property at the described T.1.d. above. location; and c. Within 90 days of approval of your claim, d. Not to seek a premium refund for cur- you must move your building to a new loca- rent or prior terms. tion outside the ASC. FEMA will give you an If the policy term ends before the insured additional 30 days to move if you show there building has been flooded continuously for 90 is sufficient reason to extend the time. days, the provisions of this paragraph T.1. d. Before the final payment of your claim, will apply when the insured building suffers you must acquire an elevation certificate a covered loss before the policy term ends. and a floodplain development permit from 2. If your insured building is subject to the local floodplain administrator for the continuous lake flooding from a closed basin new location of your building. lake, you may elect to file a claim under ei- e. Before the approval of your claim, the ther paragraph T.1. above or T.2. (A ‘‘closed community having jurisdiction over your basin lake’’ is a natural lake from which building must: water leaves primarily through evaporation (1) Adopt a permanent land use ordinance, and whose surface area now exceeds or has or a temporary moratorium for a period not exceeded one square mile at any time in the to exceed 6 months to be followed imme- recorded past. Most of the nation’s closed diately by a permanent land use ordinance, basin lakes are in the western half of the that is consistent with the provisions speci- United States where annual evaporation ex- fied in the easement required in paragraph ceeds annual precipitation and where lake T.2.b. above. levels and surface areas are subject to con- (2) Agree to declare and report any viola- siderable fluctuation due to wide variations tions of this ordinance to FEMA so that

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under Section 1316 of the National Flood In- lier policy to the limits of the later policy. surance Act of 1968, as amended, flood insur- The change will be effective as of the effec- ance to the building can be denied; and tive date of the later policy. (3) Agree to maintain as deed-restricted, In either case, you must pay the pro rata for purposes compatible with open space or premium for the increased coverage limits agricultural or recreational use only, any af- within 30 days of the written notice. In no fected property the community acquires an event will the resulting coverage limits ex- interest in. These deed restrictions must be ceed the permissible limits of coverage under consistent with the provisions of paragraph the Act or your insurable interest, whichever T.2.b. above, except that, even if a certified is less. We will make a refund to you, accord- project protects the property, the land use ing to applicable NFIP rules, of the premium restrictions continue to apply if the property for the policy not being kept in effect. was acquired under the Hazard Mitigation 2. Your option under Condition U. Dupli- Grant Program or the Flood Mitigation As- cate Policies Not Allowed to elect which sistance Program. If a non-profit land trust NFIP policy to keep in effect does not apply organization receives the property as a dona- when duplicates have been knowingly cretion, that organization must maintain the ated. Losses occurring under such cir- property as deed-restricted, consistent with cumstances will be adjusted according to the the provisions of paragraph T.2.b. above. terms and conditions of the earlier policy. f. Before the approval of your claim, the af- The policy with the later effective date must fected State must take all action set forth in be canceled. FEMA’s ‘‘Policy Guidance for Closed Basin Lakes.’’ V. Loss Settlement g. You must have NFIP flood insurance coverage continuously in effect from a date 1. Introduction established by FEMA until you file a claim This policy provides three methods of set- under paragraph T.2. If a subsequent owner tling losses: Replacement Cost, Special Loss buys NFIP insurance that goes into effect Settlement, and Actual Cash Value. Each within 60 days of the date of transfer of title, method is used for a different type of prop- any gap in coverage during that 60-day pe- erty, as explained in a-c. below. riod will not be a violation of this contin- a. Replacement Cost Loss Settlement, de- uous coverage requirement. For the purpose scribed in V.2. below, applies to a single-fam- of honoring a claim under this paragraph ily dwelling provided: T.2, we will not consider to be in effect any (1) It is your principal residence, which increased coverage that became effective after the date established by FEMA. The ex- means that, at the time of loss, you or your ception to this is any increased coverage in spouse lived there for 80% of: the amount suggested by your insurer as an (a) The 365 days immediately preceding the inflation adjustment. loss; or h. This paragraph T.2. will be in effect for (b) The period of your ownership, if you a community when the FEMA Regional Di- owned the dwelling for less than 365 days; rector for the affected region provides to the and community, in writing, the following: (2) At the time of loss, the amount of in- (1) Confirmation that the community and surance in this policy that applies to the the State are in compliance with the condi- dwelling is 80% or more of its full replace- tions in paragraphs T.2.e. and T.2.f. above, ment cost immediately before the loss, or is and the maximum amount of insurance available (2) The date by which you must have flood under the NFIP. insurance in effect. b. Special Loss Settlement, described in V.3. below, applies to a single-family dwell- U. Duplicate Policies Not Allowed ing that is a manufactured or mobile home 1. We will not insure your property under or a travel trailer. more than one NFIP policy. c. Actual Cash Value loss settlement ap- If we find that the duplication was not plies to a single-family dwelling not subject knowingly created, we will give you written to replacement cost or special loss settle- notice. The notice will advise you that you ment, and to the property listed in V.4. may choose one of several options under the below. following procedures: 2. Replacement Cost Loss Settlement a. If you choose to keep in effect the policy with the earlier effective date, you may also The following loss settlement conditions choose to add the coverage limits of the later apply to a single-family dwelling described policy to the limits of the earlier policy. The in V.1.a. above: change will become effective as of the effec- a. We will pay to repair or replace the dam- tive date of the later policy. aged dwelling after application of the de- b. If you choose to keep in effect the policy ductible and without deduction for deprecia- with the later effective date, you may also tion, but not more than the least of the fol- choose to add the coverage limits of the ear- lowing amounts:

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(1) The building limit of liability shown on 4. Actual Cash Value Loss Settlement your Declarations Page; The types of property noted below are sub- (2) The replacement cost of that part of the ject to actual cash value (or in the case of dwelling damaged, with materials of like V.4.a.(2), below, proportional) loss settle- kind and quality and for like use; or ment. (3) The necessary amount actually spent to a. A dwelling, at the time of loss, when the repair or replace the damaged part of the amount of insurance on the dwelling is both dwelling for like use. less than 80% of its full replacement cost im- b. If the dwelling is rebuilt at a new loca- mediately before the loss and less than the tion, the cost described above is limited to maximum amount of insurance available the cost that would have been incurred if the under the NFIP. In that case, we will pay the dwelling had been rebuilt at its former loca- greater of the following amounts, but not tion. more than the amount of insurance that ap- c. When the full cost of repair or replace- plies to that dwelling: ment is more than $1,000, or more than 5% of (1) The actual cash value, as defined in the whole amount of insurance that applies II.B.2., of the damaged part of the dwelling; to the dwelling, we will not be liable for any or loss under V.2.a. above or V.4.a.(2) below un- (2) A proportion of the cost to repair or re- less and until actual repair or replacement is place the damaged part of the dwelling, with- completed. out deduction for physical depreciation and d. You may disregard the replacement cost after application of the deductible. conditions above and make claim under this This proportion is determined as follows: If policy for loss to dwellings on an actual cash 80% of the full replacement cost of the dwell- value basis. You may then make claim for ing is less than the maximum amount of in- any additional liability according to V.2.a., surance available under the NFIP, then the b., and c. above, provided you notify us of proportion is determined by dividing the ac- your intent to do so within 180 days after the tual amount of insurance on the dwelling by date of loss. the amount of insurance that represents 80% e. If the community in which your dwelling of its full replacement cost. But if 80% of the is located has been converted from the Emer- full replacement cost of the dwelling is gency Program to the Regular Program dur- greater than the maximum amount of insuring the current policy term, then we will ance available under the NFIP, then the pro- consider the maximum amount of available portion is determined by dividing the actual NFIP insurance to be the amount that was amount of insurance on the dwelling by the available at the beginning of the current pol- maximum amount of insurance available icy term. under the NFIP. b. A two-, three-, or four-family dwelling. 3. Special Loss Settlement c. A unit that is not used exclusively for single-family dwelling purposes. a. The following loss settlement conditions d. Detached garages. apply to a single-family dwelling that: e. Personal property. (1) is a manufactured or mobile home or a f. Appliances, carpets, and carpet pads. travel trailer, as defined in II.B.6.b. and c., g. Outdoor awnings, outdoor antennas or (2) is at least 16 feet wide when fully as- aerials of any type, and other outdoor equip- sembled and has an area of at least 600 ment. square feet within its perimeter walls when h. Any property covered under this policy fully assembled, and that is abandoned after a loss and remains as (3) is your principal residence as specified debris anywhere on the described location. in V.1.a.(1) above. i. A dwelling that is not your principal res- b. If such a dwelling is totally destroyed or idence. damaged to such an extent that, in our judgment, it is not economically feasible to re- 5. Amount of Insurance Required pair, at least to its pre-damage condition, we To determine the amount of insurance re- will, at our discretion pay the least of the quired for a dwelling immediately before the following amounts: loss, we do not include the value of: (1) The lesser of the replacement cost of a. Footings, foundations, piers, or any the dwelling or 1.5 times the actual cash other structures or devices that are below value, or the undersurface of the lowest basement (2) The building limit of liability shown on floor and support all or part of the dwelling; your Declarations Page. b. Those supports listed in V.5.a. above, c. If such a dwelling is partially damaged that are below the surface of the ground in- and, in our judgment, it is economically fea- side the foundation walls if there is no base- sible to repair it to its pre-damage condition, ment; and we will settle the loss according to the Re- c. Excavations and underground flues, placement Cost conditions in V.2.above. pipes, wiring, and drains.

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NOTE: The Coverage D—Increased Cost of We have the right to review the informa- Compliance limit of liability is not included tion you give us at any time and to revise in the determination of the amount of insur- your policy based on our review. ance required. II. DEFINITIONS VIII. LIBERALIZATION CLAUSE A. In this policy, ‘‘you’’ and ‘‘your’’ refer to the insured(s) shown on the Declarations If we make a change that broadens your Page of this policy. Insured(s) includes: Any coverage under this edition of our policy, but mortgagee and loss payee named in the Ap- does not require any additional premium, plication and Declarations page, as well as then that change will automatically apply to any other mortgagee or loss payee deter- your insurance as of the date we implement mined to exist at the time of loss in the the change, provided that this implementa- order of precedence. ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ tion date falls within 60 days before or dur- refer to the insurer. ing the policy term stated on the Declara- Some definitions are complex because they tions Page. are provided as they appear in the law or regulations, or result from court cases. The IX. WHAT LAW GOVERNS precise definitions are intended to protect This policy and all disputes arising from you. the handling of any claim under the policy Flood, as used in this flood insurance pol- are governed exclusively by the flood insur- icy, means: ance regulations issued by FEMA, the Na- 1. A general and temporary condition of tional Flood Insurance Act of 1968, as amend- partial or complete inundation of two or ed (42 U.S.C. 4001, et seq.), and Federal com- more acres of normally dry land area or of mon law. two or more properties (one of which is your In Witness Whereof, we have signed this pol- property) from: icy below and hereby enter into this Insur- a. Overflow of inland or tidal waters; ance Agreement. b. Unusual and rapid accumulation or run- JO ANN HOWARD, off of surface waters from any source; Administrator, Federal Insurance c. Mudflow. Administration. 2. The collapse or subsidence of land along the shore of a lake or similar body of water [65 FR 60769, Oct. 12, 2000] as a result of erosion or undermining caused by waves or currents of water exceeding an- APPENDIX A(2) TO PART 61 ticipated cyclical levels which result in a flood as defined in A.1.a. above. FEDERAL EMERGENCY MANAGEMENT AGENCY, B. The following are the other key defini- FEDERAL INSURANCE ADMINISTRATION tions we use in this policy: 1. Act. The National Flood Insurance Act of STANDARD FLOOD INSURANCE POLICY 1968 and any amendments to it. 2. Actual Cash Value. The cost to replace an GENERAL PROPERTY FORM insured item of property at the time of loss, Please read the policy carefully. The flood less the value of its physical depreciation. insurance coverage provided is subject to 3. Application. The statement made and limitations, restrictions, and exclusions. signed by you or your agent in applying for This policy provides no coverage: this policy. The application gives informa- 1. In a regular program community, for a tion we use to determine the eligibility of residential condominium building, as defined the risk, the kind of policy to be issued, and in this policy; and the correct premium payment. The applica- 2. Except for personal property coverage, tion is part of this flood insurance policy. for a unit in a condominium building. For us to issue you a policy, the correct premium payment must accompany the applica- I. AGREEMENT tion. 4. Base Flood. A flood having a one percent The Federal Emergency Management chance of being equaled or exceeded in any Agency (FEMA) provides flood insurance given year. under the terms of the National Flood Insur- 5. Basement. Any area of the building, in- ance Act of 1968 and its Amendments, and cluding any sunken room or sunken portion Title 44 of the Code of Federal Regulations. of a room, having its floor below ground We will pay you for direct physical loss by level (subgrade) on all sides. or from flood to your insured property if 6. Building. you: a. A structure with two or more outside 1. Have paid the correct premium; rigid walls and a fully secured roof, that is 2. Comply with all terms and conditions of affixed to a permanent site; this policy; and b. A manufactured home (‘‘a manufactured 3. Have furnished accurate information and home,’’ also known as a mobile home, is a statements. structure: built on a permanent chassis,

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transported to its site in one or more sec- areas, as when earth is carried by a current tions, and affixed to a permanent founda- of water. Other earth movements, such as tion); or landslide, slope failure, or a saturated soil c. A travel trailer without wheels, built on mass moving by liquidity down a slope, are a chassis and affixed to a permanent founda- not mudflows. tion, that is regulated under the commu- 19. National Flood Insurance Program nity’s floodplain management and building (NFIP). The program of flood insurance cov- ordinances or laws. erage and floodplain management adminis- Building does not mean a gas or liquid stor- tered under the Act and applicable Federal age tank or a recreational vehicle, park regulations in Title 44 of the Code of Federal trailer, or other similar vehicle, except as Regulations, Subchapter B. described in B.6.c., above. 20. Policy. The entire written contract be- 7. Cancellation. The ending of the insurance tween you and us. It includes: coverage provided by this policy before the a. This printed form; expiration date. b. The application and Declarations Page; 8. Condominium. That form of ownership of c. Any endorsement(s) that may be issued; real property in which each unit owner has and, an undivided interest in common elements. d. Any renewal certificate indicating that 9. . The entity, Condominium Association coverage has been instituted for a new policy formed by the unit owners, responsible for and new policy term. the maintenance and operation of: Only one building, which you specifically a. Common elements owned in undivided described in the application, may be insured shares by unit owners; and under this policy. b. Other real property in which the unit owners have use rights where membership in 21. Pollutants. Substances that include, but the entity is a required condition of unit that are not limited to, any solid, liquid, ownership. gaseous or thermal irritant or contaminant, 10. Declarations Page. A computer-gen- including smoke, vapor, soot, fumes, acids, erated summary of information you provided alkalis, chemicals, and waste. ‘‘Waste’’ in- in the application for insurance. The Dec- cludes, but is not limited to, materials to be larations Page also describes the term of the recycled, reconditioned, or reclaimed. policy, limits of coverage, and displays the 22. Post-FIRM Building. A building for premium and our name. The Declarations which construction or substantial improve- Page is a part of this flood insurance policy. ment occurred after December 31, 1974, or on 11. Described Location. The location where or after the effective date of an initial Flood the insured building or personal property is Insurance Rate Map (FIRM), whichever is found. The described location is shown on later. the Declarations Page. 23. Probation Premium. A flat charge you 12. Direct Physical Loss By or From Flood. must pay on each new or renewal policy Loss or damage to insured property, directly issued covering property in a community caused by a flood. There must be evidence of that has been placed on probation under the physical changes to the property. provisions of 44 CFR 59.24. 13. Elevated Building. A building that has 24. Regular Program. The final phase of a no basement and that has its lowest elevated community’s participation in the National floor raised above ground level by foundation Flood Insurance Program. In this phase, a walls, shear walls, posts, piers, pilings, or Flood Insurance Rate Map is in effect and columns. full limits of coverage are available under 14. Emergency Program. The initial phase of the Act. a community’s participation in the National 25. Residential Condominium Building. A Flood Insurance Program. During this phase, building, owned and administered as a condo- only limited amounts of insurance are avail- minium, containing one or more family units able under the Act. and in which at least 75% of the floor area is 15. Expense Constant. A flat charge you residential. must pay on each new or renewal policy to 26. Special Flood Hazard Area. An area hav- defray the expenses of the Federal Govern- ing special flood or mudflow, and/or flood-re- ment related to flood insurance. lated erosion hazards, and shown on a Flood 16. Federal Policy Fee. A flat charge you Hazard Boundary Map or Flood Insurance must pay on each new or renewal policy to Rate Map as Zone A, AO, A1–A30, AE, A99, defray certain administrative expenses in- AH, AR, AR/A, AR/AE, AR/AH, AR/AO, AR/ curred in carrying out the National Flood In- A1–A30, V1–V30, VE, V. surance Program. This fee covers expenses 27. Stock means merchandise held in stor- not covered by the expense constant. age or for sale, raw materials, and in-process 17. Improvements. Fixtures, alterations, in- or finished goods, including supplies used in stallations, or additions comprising a part of their packing or shipping. the insured building. Stock does not include any property not 18. Mudflow. A river of liquid and flowing covered under Section IV. Property Not mud on the surfaces of normally dry land Covered, except the following:

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a. Parts and equipment for self-propelled p. In the units within the building, in- vehicles; stalled: b. Furnishings and equipment for (1) Built-in dishwashers; watercraft; (2) Built-in microwave ovens; c. Spas and hot-tubs, including their equip- (3) Garbage disposal units; ment; and (4) Hot water heaters, including solar d. Swimming pool equipment. water heaters; 28. Unit. A unit in a condominium building. (5) Kitchen cabinets; 29. Valued Policy. A policy in which the in- (6) Plumbing fixtures; sured and the insurer agree on the value of (7) Radiators; the property insured, that value being pay- (8) Ranges; able in the event of a total loss. The Stand- (9) Refrigerators; and ard Flood Insurance Policy is not a valued (10) Stoves. policy. 5. Materials and supplies to be used for construction, alteration, or repair of the in- III. PROPERTY COVERED sured building while the materials and supplies are stored in a fully enclosed building A. Coverage A—Building Property at the described location or on an adjacent We insure against direct physical loss by property. or from flood to: 6. A building under construction, alteration, or repair at the described location. 1. The building described on the Declara- a. If the structure is not yet walled or tions Page at the described location. If the roofed as described in the definition for building is a condominium building and the building (see II. 6.a.), then coverage applies: named insured is the condominium associa- (1) Only while such work is in progress; or tion, Coverage A includes all units within (2) If such work is halted, only for a period the building and the improvements within of up to 90 continuous days thereafter. the units, provided the units are owned in b. However, coverage does not apply until common by all unit owners. the building is walled and roofed if the low- 2. We also insure building property for a est floor, including the basement floor, of a period of 45 days at another location, as set non-elevated building or the lowest elevated forth in III.C.2.b., Property Removed to Safe- floor of an elevated building is: ty. (1) Below the base flood elevation in Zones 3. Additions and extensions attached to AH, AE, A1–A30, AR, AR/AE, AR/AH, AR/A1– and in contact with the building by means of A30, AR/A, AR/AO; or a rigid exterior wall, a solid load-bearing in- (2) Below the base flood elevation adjusted terior wall, a stairway, an elevated walkway, to include the effect of wave action in Zones or a roof. At your option, additions and ex- VE or V1–V30. tensions connected by any of these methods The lowest floor levels are based on the may be separately insured. Additions and ex- bottom of the lowest horizontal structural tensions attached to and in contact with the member of the floor in Zones VE or V1–V30 building by means of a common interior wall and the top of the floor in Zones AH, AE, A1– that is not a solid load-bearing wall are al- A30, AR, AR/AE, AR/AH, AR/A1–A30, AR/A, ways considered part of the building and can- AR/AO. not be separately insured. 7. A manufactured home or a travel trailer 4. The following fixtures, machinery, and as described in the Definitions equipment, which are covered under Cov- Section (see II.B.6.b.and II.B.6.c.). erage A only: If the manufactured home or travel trailer a. Awnings and canopies; is in a special flood hazard area, it must be b. Blinds; anchored in the following manner at the c. Carpet permanently installed over unfin- time of the loss: ished flooring; a. By over-the-top or frame ties to ground d. Central air conditioners; anchors; or e. Elevator equipment; b. In accordance with the manufacturer’s f. Fire extinguishing apparatus; specifications; or g. Fire sprinkler systems; c. In compliance with the community’s h. Walk-in freezers; floodplain management requirements unless i. Furnaces; it has been continuously insured by the j. Light fixtures; NFIP at the same described location since k. Outdoor antennas and aerials attached September 30, 1982. to buildings; 8. Items of property in a building enclosure l. Permanently installed cupboards, book- below the lowest elevated floor of an ele- cases, paneling, and wallpaper; vated post-FIRM building located in zones m. Pumps and machinery for operating A1–A30, AE, AH, AR, AR/A, AR/AE, AR/AH, pumps; AR/A1–A30, V1–V30, or VE, or in a basement, n. Ventilating equipment; and regardless of the zone. Coverage is limited to o. Wall mirrors, permanently installed; the following:

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a. Any of the following items, if installed (b) Your guest; or in their functioning locations and, if nec- (2) You may be legally liable for. essary for operation, connected to a power b. If this policy covers other than house- source: hold personal property, it will insure your: (1) Central air conditioners; (1) Furniture and fixtures; (2) Cisterns and the water in them; (2) Machinery and equipment; (3) Drywall for walls and ceilings in a base- (3) Stock; and ment and the cost of labor to nail it, unfin- (4) Other personal property owned by you ished and unfloated and not taped, to the and used in your business, subject to IV. framing; Property Not Covered. (4) Electrical junction and circuit breaker 3. Coverage for personal property includes boxes; the following property, subject to B.1.a. and (5) Electrical outlets and switches; B.1.b. above, which is covered under Cov- (6) Elevators, dumbwaiters, and related erage B. only: equipment, except for related equipment in- a. Air conditioning units installed in the stalled below the base flood elevation after building; September 30, 1987; b. Carpet, not permanently installed, over (7) Fuel tanks and the fuel in them; unfinished flooring; (8) Furnaces and hot water heaters; c. Carpets over finished flooring; (9) Heat pumps; d. Clothes washers and dryers; (10) Nonflammable insulation in a base- e. ‘‘Cook-out’’ grills; ment; (11) Pumps and tanks used in solar energy f. Food freezers, other than walk-in, and systems; the food in any freezer; (12) Stairways and staircases attached to g. Outdoor equipment and furniture stored the building, not separated from it by ele- inside the insured building; vated walkways; h. Ovens and the like; and (13) Sump pumps; i. Portable microwave ovens and portable (14) Water softeners and the chemicals in dishwashers. them, water filters, and faucets installed as 4. Items of property in a building enclosure an integral part of the plumbing system; below the lowest elevated floor of an ele- (15) Well water tanks and pumps; vated post-FIRM building located in zones (16) Required utility connections for any A1–A30, AE, AH, AR, AR/A, AR/AE, AR/AH, item in this list; and AR/A1–A30, V1–V30, or VE, or in a basement, (17) Footings, foundations, posts, pilings, regardless of the zone, is limited to the fol- piers, or other foundation walls and anchor- lowing items, if installed in their func- age systems required to support a building. tioning locations and, if necessary for oper- b. Clean-up. ation, connected to a power source: a. Air conditioning units—portable or win- B. Coverage B—Personal Property dow type; 1. If you have purchased personal property b. Clothes washers and dryers; and coverage, we insure, subject to B. 2., 3., and c. Food freezers, other than walk-in, and 4. below, against direct physical loss by or food in any freezer. from flood to personal property inside the 5. Special Limits. We will pay no more fully enclosed insured building: than $2,500 for any loss to one or more of the a. Owned solely by you, or in the case of a following kinds of personal property: condominium, owned solely by the condo- a. Artwork, photographs, collectibles, or minium association and used exclusively in memorabilia, including but not limited to, the conduct of the business affairs of the porcelain or other figures, and sports cards; condominium association; or b. Rare books or autographed items; b. Owned in common by the unit owners of c. Jewelry, watches, precious and semi-pre- the condominium association. cious stones, articles of gold, silver, or plat- We also insure such personal property for inum; 45 days while stored at a temporary location, d. Furs or any article containing fur which as set forth in III.C.2.b., Property Removed represents its principal value; or to Safety. 6. We will pay only for the functional value 2. When this policy covers personal prop- of antiques. erty, coverage will be either for household 7. If you are a tenant, you may apply up to personal property or other than household 10% of the Coverage B limit to improve- personal property, while within the insured ments: building, but not both. a. Made a part of the building you occupy; a. If this policy covers household personal and property, it will insure household personal b. You acquired, or made at your expense, property usual to a living quarters, that: even though you cannot legally remove. (1) Belongs to you, or a member of your This coverage does not increase the household, or at your option: amount of insurance that applies to insured (a) Your domestic worker; personal property.

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8. If you are a condominium unit owner, Reasonable expenses include the value of you may apply up to 10% of the Coverage B work, at the Federal minimum wage, that limit to cover loss to interior: you perform. a. walls, (2) If you move insured property to a place b. floors, and other than the described location that con- c. ceilings, tains the property, in order to protect it that are not covered under a policy issued to from flood or the imminent danger of flood, the condominium association insuring the we will cover such property while at that lo- condominium building. cation for a period of 45 consecutive days This coverage does not increase the from the date you begin to move it there. amount of insurance that applies to insured The personal property that is moved must be personal property. placed in a fully enclosed building, or other- 9. If you are a tenant, personal property wise reasonably protected from the ele- must be inside the fully enclosed building. ments. Any property removed, including a move- C. Coverage C—Other Coverages able home described in II.6.b. and c., must be placed above ground level or outside of the 1. Debris Removal. special flood hazard area. a. We will pay the expense to remove non- This coverage does not increase the Cov- owned debris that is on or in insured prop- erage A or Coverage B limit of liability. erty and debris of insured property any- 3. Pollution Damage. where. We will pay for damage caused by pollut- b. If you or a member of your household ants to covered property if the discharge, perform the removal work, the value of your seepage, migration, release, or escape of the work will be based on the Federal minimum pollutants is caused by or results from flood. wage. The most we will pay under this coverage is c. This coverage does not increase the Cov- $10,000. This coverage does not increase the erage A or Coverage B limit of liability. Coverage A or Coverage B limits of liability. 2. Loss Avoidance Measures. Any payment under this provision when a. Sandbags, Supplies, and Labor combined with all other payments for the (1) We will pay up to $1,000 for the costs same loss cannot exceed the replacement you incur to protect the insured building cost or actual cash value, as appropriate, of from a flood or imminent danger of flood, for the covered property. This coverage does not the following: include the testing for or monitoring of pol- (a) Your reasonable expenses to buy: lutants unless required by law or ordinance. (i) Sandbags, including sand to fill them; (ii) Fill for temporary levees; D. Coverage D—Increased Cost of Compliance (iii) Pumps; and 1. General. (iv) Plastic sheeting and lumber used in This policy pays you to comply with a connection with these items; and State or local floodplain management law or (b) The value of work, at the Federal min- ordinance affecting repair or reconstruction imum wage, that you perform. of a structure suffering flood damage. Com- (2) This coverage for Sandbags, Supplies, pliance activities eligible for payment are: and Labor only applies if damage to insured elevation, floodproofing, relocation, or dem- property by or from flood is imminent and olition (or any combination of these activi- the threat of flood damage is apparent ties) of your structure. Eligible floodproofing enough to lead a person of common prudence activities are limited to: to anticipate flood damage. One of the fol- a. Non-residential structures. b. Residen- lowing must also occur: tial structures with basements that satisfy (a) A general and temporary condition of FEMA’s standards published in the Code of flooding in the area near the described loca- Federal Regulations [44 CFR 60.6 (b) or (c)]. tion must occur, even if the flood does not 2. Limit of Liability. reach the insured building; or We will pay you up to $20,000 under this (b) A legally authorized official must issue Coverage D (Increased Cost of Compliance), an evacuation order or other civil order for which only applies to policies with building the community in which the insured building coverage (Coverage A). Our payment of is located calling for measures to preserve claims under Coverage D is in addition to the life and property from the peril of flood. amount of coverage which you selected on This coverage does not increase the Cov- the application and which appears on the erage A or Coverage B limit of liability. Declarations Page. But the maximum you b. Property Removed to Safety can collect under this policy for both Cov- (1) We will pay up to $1,000 for the reason- erage A (Building Property) and Coverage D able expenses you incur to move insured (Increased Cost of Compliance) cannot ex- property to a place other than the described ceed the maximum permitted under the Act. location that contains the property in order We do NOT charge a separate deductible for to protect it from flood or the imminent dan- a claim under Coverage D. ger of flood. 3. Eligibility.

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a. A structure covered under Coverage A— base flood elevation where elevation data is Building Property sustaining a loss caused obtained from a Federal, State, or other by a flood as defined by this policy must: source. Such compliance activities are also (1) Be a ‘‘repetitive loss structure.’’ A ‘‘re- eligible for Coverage D. petitive loss structure’’ is one that meets the d. This coverage will also pay for the incre- following conditions: mental cost, after demolition or relocation, (a) The structure is covered by a contract of elevating or floodproofing a structure dur- of flood insurance issued under the NFIP. ing its rebuilding at the same or another site (b) The structure has suffered flood damage to meet State or local floodplain manage- on 2 occasions during a 10-year period which ment laws or ordinances, subject to Exclu- ends on the date of the second loss. sion D.5.g. below. (c) The cost to repair the flood damage, on e. This coverage will also pay to bring a average, equaled or exceeded 25% of the mar- flood-damaged structure into compliance ket value of the structure at the time of each flood loss. with State or local floodplain management (d) In addition to the current claim, the laws or ordinances even if the structure had NFIP must have paid the previous qualifying received a variance before the present loss claim, and the State or community must from the applicable floodplain management have a cumulative, substantial damage pro- requirements. vision or repetitive loss provision in its 4. Conditions. floodplain management law or ordinance a. When a structure covered under Cov- being enforced against the structure; or erage A—Building Property sustains a loss (2) Be a structure that has had flood dam- caused by a flood, our payment for the loss age in which the cost to repair equals or ex- under this Coverage D will be for the in- ceeds 50% of the market value of the struc- creased cost to elevate, floodproof, relocate, ture at the time of the flood. The State or or demolish (or any combination of these ac- community must have a substantial damage tivities) caused by the enforcement of cur- provision in its floodplain management law rent State or local floodplain management or ordinance being enforced against the ordinances or laws. Our payment for eligible structure. demolition activities will be for the cost to b. This Coverage D pays you to comply demolish and clear the site of the building with State or local floodplain management debris or a portion thereof caused by the en- laws or ordinances that meet the minimum forcement of current State or local flood- standards of the National Flood Insurance plain management ordinances or laws. Eligi- Program found in the Code of Federal Regu- ble activities for the cost of clearing the site lations at 44 CFR 60.3. We pay for compliance will include those necessary to discontinue activities that exceed those standards under utility service to the site and ensure proper these conditions: abandonment of on-site utilities. (1) 3.a.(1) above. b. When the building is repaired or rebuilt, (2) Elevation or floodproofing in any risk it must be intended for the same occupancy zone to preliminary or advisory base flood as the present building unless otherwise re- elevations provided by FEMA which the quired by current floodplain management or- State or local government has adopted and is dinances or laws. enforcing for flood-damaged structures in 5. Exclusions. such areas. (This includes compliance activi- Under this Coverage D—Increased Cost of ties in B, C, X, or D zones which are being Compliance, we will not pay for: changed to zones with base flood elevations. a. The cost to comply with any floodplain This also includes compliance activities in management law or ordinance in commu- zones where base flood elevations are being nities participating in the Emergency Pro- increased, and a flood-damaged structure gram. must comply with the higher advisory base flood elevation.) Increased Cost of Compli- b. The cost associated with enforcement of ance coverage does not apply to situations in any ordinance or law that requires any in- B, C, X, or D zones where the community has sured or others to test for, monitor, clean up, derived its own elevations and is enforcing remove, contain, treat, detoxify or neu- elevation or floodproofing requirements for tralize, or in any way respond to, or assess flood-damaged structures to elevations de- the effects of pollutants. rived solely by the community. c. The loss in value to any insured building (3) Elevation or floodproofing above the or other structure due to the requirements of base flood elevation to meet State or local any ordinance or law. ‘‘freeboard’’ requirements, i.e., that a struc- d. The loss in residual value of the ture must be elevated above the base flood undamaged portion of a building demolished elevation. as a consequence of enforcement of any c. Under the minimum NFIP criteria at 44 State or local floodplain management law or CFR 60.3(b)(4), States and communities must ordinance. require the elevation or floodproofing of e. Any Increased Cost of Compliance under structures in unnumbered A zones to the this Coverage D:

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(1) Until the building is elevated, b. Designed and used to assist handicapped floodproofed, demolished, or relocated on the persons, while the vehicles or machines are same or to another premises; and inside a building at the described location; (2) Unless the building is elevated, 6. Land, land values, lawns, trees, shrubs, floodproofed, demolished, or relocated as plants, growing crops, or animals; soon as reasonably possible after the loss, 7. Accounts, bills, coins, currency, deeds, not to exceed two years. evidences of debt, medals, money, scrip, f. Any code upgrade requirements, e.g., stored value cards, postage stamps, securi- plumbing or electrical wiring, not specifi- ties, bullion, manuscripts, or other valuable cally related to the State or local floodplain papers; management law or ordinance. 8. Underground structures and equipment, g. Any compliance activities needed to including wells, septic tanks, and septic sys- bring additions or improvements made after tems; the loss occurred into compliance with State 9. Those portions of walks, walkways, or local floodplain management laws or ordi- decks, driveways, patios, and other surfaces, nances. all whether protected by a roof or not, lo- h. Loss due to any ordinance or law that cated outside the perimeter, exterior walls of you were required to comply with before the the insured building; current loss. i. Any rebuilding activity to standards 10. Containers including related equip- that do not meet the NFIP’s minimum re- ment, such as, but not limited to, tanks con- quirements. This includes any situation taining gases or liquids; where the insured has received from the 11. Buildings or units and all their con- State or community a variance in connec- tents if more than 49% of the actual cash tion with the current flood loss to rebuild value of the building or unit is below ground, the property to an elevation below the base unless the lowest level is at or above the flood elevation. base flood elevation and is below ground by j. Increased Cost of Compliance for a ga- reason of earth having been used as insula- rage or carport. tion material in conjunction with energy ef- k. Any structure insured under an NFIP ficient building techniques; Group Flood Insurance Policy. 12. Fences, retaining walls, seawalls, bulk- l. Assessments made by a condominium as- heads, wharves, piers, bridges, and docks; sociation on individual condominium unit 13. Aircraft or watercraft, or their fur- owners to pay increased costs of repairing nishings and equipment; commonly owned buildings after a flood in 14. Hot tubs and spas that are not bath- compliance with State or local floodplain room fixtures, and swimming pools, and management ordinances or laws. their equipment such as, but not limited to, 6. Other Provisions. heaters, filters, pumps, and pipes, wherever All other conditions and provisions of the located; policy apply. 15. Property not eligible for flood insurance pursuant to the provisions of the Coast- IV. PROPERTY NOT COVERED al Barrier Resources Act and the Coastal A. We do not cover any of the following Barrier Improvement Act of 1990 and amend- property: ments to these Acts; 1. Personal property not inside the fully 16. Personal property owned by or in the enclosed building; care, custody or control of a unit owner, ex- 2. A building, and personal property in it, cept for property of the type and under the located entirely in, on, or over water or sea- circumstances set forth under III. Coverage ward of mean high tide, if it was constructed B—Personal Property of this policy; or substantially improved after September 17. A residential condominium building lo- 30, 1982; cated in a Regular Program community. 3. Open structures, including a building used as a boathouse or any structure or V. EXCLUSIONS building into which boats are floated, and personal property located in, on, or over A. We only provide coverage for direct water; physical loss by or from flood, which means 4. Recreational vehicles other than travel that we do not pay you for: trailers described in the II.B.6.c., whether af- 1. Loss of revenue or profits; fixed to a permanent foundation or on 2. Loss of access to the insured property or wheels; described location; 5. Self-propelled vehicles or machines, in- 3. Loss of use of the insured property or de- cluding their parts and equipment. However, scribed location; we do cover self-propelled vehicles or ma- 4. Loss from interruption of business or chines, provided they are not licensed for use production; on public roads and are: 5. Any additional expenses incurred while a. Used mainly to service the described lo- the insured building is being repaired or is cation; or unable to be occupied for any reason;

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6. The cost of complying with any ordi- ing equipment situated on the described lo- nance or law requiring or regulating the con- cation; struction, demolition, remodeling, renova- 8. Theft, fire, explosion, wind, or wind- tion or repair of property, including removal storm; of any resulting debris. This exclusion does 9. Anything that you or your agents do or not apply to any eligible activities that we conspire to do to cause loss by flood delib- describe in Coverage D—Increased Cost of erately; or Compliance; or 10. Alteration of the insured property that 7. Any other economic loss you suffer. significantly increases the risk of flooding. B. We do not insure a loss directly or indi- E. We do not insure for loss to any building rectly caused by a flood that is already in or personal property located on land leased progress at the time and date: from the Federal Government, arising from 1. The policy term begins; or or incident to the flooding of the land by the 2. Coverage is added at your request. Federal Government, where the lease ex- C. We do not insure for loss to property pressly holds the Federal Government harm- caused directly by earth movement even if less under flood insurance issued under any the earth movement is caused by flood. Some Federal Government program. examples of earth movement that we do not cover are: VI. DEDUCTIBLES 1. Earthquake; A. When a loss is covered under this policy, 2. Landslide; we will pay only that part of the loss that 3. Land subsidence; exceeds the applicable deductible amount, 4. Sinkholes; subject to the limit of liability that applies. 5. Destabilization or movement of land The deductible amount is shown on the Dec- that results from accumulation of water in larations Page. subsurface land areas; or However, when a building under construc- 6. Gradual erosion. tion, alteration, or repair does not have at We do, however, pay for losses from mud- least two rigid exterior walls and a fully se- flow and land subsidence as a result of ero- cured roof at the time of loss, your deduct- sion that are specifically covered under our ible amount will be two times the deductible definition of flood (see A.1.c. and II.A.2.). that would otherwise apply to a completed D. We do not insure for direct physical loss building. caused directly or indirectly by: B. In each loss from flood, separate 1. The pressure or weight of ice; deductibles apply to the building and per- 2. Freezing or thawing; sonal property insured by this policy. 3. Rain, snow, sleet, hail, or water spray; C. No deductible applies to: 4. Water, moisture, mildew, or mold dam- 1. III.C.2. Loss Avoidance Measures; or age that results primarily from any condi- 2. III.D. Increased Cost of Compliance. tion: a. Substantially confined to the insured VII. GENERAL CONDITIONS building; or b. That is within your control including, A. Pair and Set Clause but not limited to: (1) Design, structural, or mechanical de- In case of loss to an article that is part of fects; a pair or set, we will have the option of pay- (2) Failures, stoppages, or breakage of ing you: water or sewer lines, drains, pumps, fixtures, 1. An amount equal to the cost of replacing or equipment; or the lost, damaged, or destroyed article, less (3) Failure to inspect and maintain the depreciation, or property after a flood recedes; 2. An amount which represents the fair 5. Water or water-borne material that: proportion of the total value of the pair or a. Backs up through sewers or drains; set that the lost, damaged, or destroyed arti- b. Discharges or overflows from a sump, cle bears to the pair or set. sump pump, or related equipment; or B. Concealment or Fraud and Policy Voidance c. Seeps or leaks on or through the covered property; 1. With respect to all insureds under this unless there is a flood in the area and the policy, this policy: flood is the proximate cause of the sewer or a. Is void, drain backup, sump pump discharge or over- b. Has no legal force or effect, flow, or the seepage of water; c. Cannot be renewed, and 6. The pressure or weight of water unless d. Cannot be replaced by a new NFIP pol- there is a flood in the area and the flood is icy, if, before or after a loss, you or any the proximate cause of the damage from the other insured or your agent have at any pressure or weight of water; time: 7. Power, heating, or cooling failure unless (1) Intentionally concealed or misrepre- the failure results from direct physical loss sented any material fact or circumstance, by or from flood to power, heating, or cool- (2) Engaged in fraudulent conduct, or

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(3) Made false statements relating to this 2. When this policy covers a structure dur- policy or any other NFIP insurance. ing the course of construction. 2. This policy will be void as of the date wrongful acts described in B.1. above were E. Cancellation of Policy by You committed. 1. You may cancel this policy in accord- 3. Fines, civil penalties, and imprisonment ance with the applicable rules and regula- under applicable Federal laws may also tions of the NFIP. apply to the acts of fraud or concealment de- 2. If you cancel this policy, you may be en- scribed above. titled to a full or partial refund of premium 4. This policy is also void for reasons other also under the applicable rules and regula- than fraud, misrepresentation, or wrongful tions of the NFIP. act. This policy is void from its inception and has no legal force under the following F. Non-Renewal of the Policy by Us conditions: a. If the property is located in a commu- Your policy will not be renewed: nity that was not participating in the NFIP 1. If the community where your covered on the policy’s inception date and did not property is located stops participating in the join or re-enter the program during the pol- NFIP; or icy term and before the loss occurred; or 2. If your building has been declared ineli- b. If the property listed on the application gible under section 1316 of the Act. is otherwise not eligible for coverage under the NFIP. G. Reduction and Reformation of Coverage 1. If the premium we received from you was C. Other Insurance not enough to buy the kind and amount of 1. If a loss covered by this policy is also coverage that you requested, we will provide covered by other insurance that includes only the amount of coverage that can be pur- flood coverage not issued under the Act, we chased for the premium payment we re- will not pay more than the amount of insur- ceived. ance that you are entitled to for lost, dam- 2. The policy can be reformed to increase aged, or destroyed property insured under the amount of coverage resulting from the this policy subject to the following: reduction described in G.1. above to the a. We will pay only the proportion of the amount you requested as follows: loss that the amount of insurance that ap- a. Discovery of Insufficient Premium or In- plies under this policy bears to the total complete Rating Information Before a Loss. amount of insurance covering the loss, un- (1) If we discover before you have a flood less C.1.b. or c. below applies. loss that your premium payment was not b. If the other policy has a provision stat- enough to buy the requested amount of cov- ing that it is excess insurance, this policy erage, we will send you and any mortgagee will be primary. or trustee known to us a bill for the required c. This policy will be primary (but subject additional premium for the current policy to its own deductible) up to the deductible in term (or that portion of the current policy the other flood policy (except another policy term following any endorsement changing as described in C.1.b. above). When the other the amount of coverage). If you or the mort- deductible amount is reached, this policy gagee or trustee pay the additional premium will participate in the same proportion that within 30 days from the date of our bill, we the amount of insurance under this policy will reform the policy to increase the bears to the total amount of both policies, amount of coverage to the originally re- for the remainder of the loss. quested amount effective to the beginning of 2. Where this policy covers a condominium the current policy term (or subsequent date association and there is a flood insurance of any endorsement changing the amount of policy in the name of a unit owner that cov- coverage). ers the same loss as this policy, then this (2) If we determine before you have a flood policy will be primary. loss that the rating information we have is incomplete and prevents us from calculating D. Amendments, Waivers, Assignment the additional premium, we will ask you to This policy cannot be changed nor can any send the required information. You must of its provisions be waived without the ex- submit the information within 60 days of our press written consent of the Federal Insur- request. Once we determine the amount of ance Administrator. No action that we take additional premium for the current policy under the terms of this policy can constitute term, we will follow the procedure in a waiver of any of our rights. You may as- G.2.a.(1) above. sign this policy in writing when you transfer (3) If we do not receive the additional pre- title of your property to someone else except mium (or additional information) by the under these conditions: date it is due, the amount of coverage can 1. When this policy covers only personal only be increased by endorsement subject to property; or any appropriate waiting period.

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b. Discovery of Insufficient Premium or In- pired policy as of the expiration date shown complete Rating Information After a Loss. on the Declarations Page. (1) If we discover after you have a flood 4. In connection with the renewal of this loss that your premium payment was not policy, we may ask you during the policy enough to buy the requested amount of cov- term to re-certify, on a Recertification Ques- erage, we will send you and any mortgagee tionnaire that we will provide to you, the or trustee known to us a bill for the required rating information used to rate your most additional premium for the current and the recent application for or renewal of insur- prior policy terms. If you or the mortgagee ance. or trustee pay the additional premium within 30 days of the date of our bill, we will re- I. Conditions Suspending or Restricting form the policy to increase the amount of Insurance coverage to the originally requested amount effective to the beginning of the prior policy We are not liable for loss that occurs while term. there is a hazard that is increased by any (2) If we discover after you have a flood means within your control or knowledge. loss that the rating information we have is J. Requirements in Case of Loss incomplete and prevents us from calculating the additional premium, we will ask you to In case of a flood loss to insured property, send the required information. You must you must: submit the information before your claim 1. Give prompt written notice to us; can be paid. Once we determine the amount 2. As soon as reasonably possible, separate of additional premium for the current and the damaged and undamaged property, put- prior policy terms, we will follow the proce- ting it in the best possible order so that we dure in G.2.b.(1) above. may examine it; (3) If we do not receive the additional pre- 3. Prepare an inventory of damaged prop- mium by the date it is due, your flood insur- erty showing the quantity, description, ac- ance claim will be settled based on the re- tual cash value, and amount of loss. Attach duced amount of coverage. The amount of all bills, receipts, and related documents; coverage can only be increased by endorse- 4. Within 60 days after the loss, send us a ment subject to any appropriate waiting pe- proof of loss, which is your statement of the riod. amount you are claiming under the policy 3. However, if we find that you or your signed and sworn to by you, and which fur- agent intentionally did not tell us, or fal- nishes us with the following information: sified, any important fact or circumstance or a. The date and time of loss; did anything fraudulent relating to this in- b. A brief explanation of how the loss hap- surance, the provisions of Condition B. above pened; apply. c. Your interest (for example, ‘‘owner’’) H. Policy Renewal and the interest, if any, of others in the damaged property; 1. This policy will expire at 12:01 a.m. on d. Details of any other insurance that may the last day of the policy term. cover the loss; 2. We must receive the payment of the ap- e. Changes in title or occupancy of the in- propriate renewal premium within 30 days of sured property during the term of the policy; the expiration date. f. Specifications of damaged buildings and 3. If we find, however, that we did not place your renewal notice into the U.S. Postal detailed repair estimates; Service, or if we did mail it, we made a mis- g. Names of mortgagees or anyone else take, e.g., we used an incorrect, incomplete, having a lien, charge, or claim against the or illegible address, which delayed its deliv- insured property; ery to you before the due date for the re- h. Details about who occupied any insured newal premium, then we will follow these building at the time of loss and for what pur- procedures: pose; and a. If you or your agent notified us, not i. The inventory of damaged property de- later than one year after the date on which scribed in J.3. above. the payment of the renewal premium was 5. In completing the proof of loss, you must due, of nonreceipt of a renewal notice before use your own judgment concerning the the due date for the renewal premium, and amount of loss and justify that amount. we determine that the circumstances in the 6. You must cooperate with the adjuster or preceding paragraph apply, we will mail a representative in the investigation of the second bill providing a revised due date, claim. which will be 30 days after the date on which 7. The insurance adjuster whom we hire to the bill is mailed. investigate your claim may furnish you with b. If we do not receive the premium re- a proof of loss form, and she or he may help quested in the second bill by the revised due you complete it. However, this is a matter of date, then we will not renew the policy. In courtesy only, and you must still send us a that case, the policy will remain as an ex- proof of loss within sixty days after the loss

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even if the adjuster does not furnish the M. Loss Payment form or help you complete it. 1. We will adjust all losses with you. We 8. We have not authorized the adjuster to will pay you unless some other person or en- approve or disapprove claims or to tell you tity is named in the policy or is legally enti- whether we will approve your claim. tled to receive payment. Loss will be payable 9. At our option, we may accept the adjust- 60 days after we receive your proof of loss (or er’s report of the loss instead of your proof of within 90 days after the insurance adjuster loss. The adjuster’s report will include infor- files an adjuster’s report signed and sworn to mation about your loss and the damages you by you in lieu of a proof of loss) and: sustained. You must sign the adjuster’s re- a. We reach an agreement with you; port. At our option, we may require you to b. There is an entry of a final judgment; or swear to the report. c. There is a filing of an appraisal award with us, as provided in VII. P. K. Our Options After a Loss 2. If we reject your proof of loss in whole or Options we may, in our sole discretion, ex- in part you may: ercise after loss include the following: a. Accept such denial of your claim; 1. At such reasonable times and places that b. Exercise your rights under this policy; we may designate, you must: or a. Show us or our representative the dam- c. File an amended proof of loss as long as aged property; it is filed within 60 days of the date of the b. Submit to examination under oath, loss. while not in the presence of another insured, and sign the same; and N. Abandonment c. Permit us to examine and make extracts You may not abandon damaged or and copies of: undamaged insured property to us. (1) Any policies of property insurance insuring you against loss and the deed estab- O. Salvage lishing your ownership of the insured real We may permit you to keep damaged in- property; sured property after a loss, and we will re- (2) Condominium association documents duce the amount of the loss proceeds payable including the Declarations of the condo- to you under the policy by the value of the minium, its Articles of Association or Incor- salvage. poration, Bylaws, and rules and regulations; and P. Appraisal (3) All books of accounts, bills, invoices, If you and we fail to agree on the actual and other vouchers, or certified copies per- cash value of the damaged property so as to taining to the damaged property if the origi- determine the amount of loss, either may de- nals are lost. mand an appraisal of the loss. In this event, 2. We may request, in writing, that you you and we will each choose a competent and furnish us with a complete inventory of the impartial appraiser within 20 days after re- lost, damaged, or destroyed property, includ- ceiving a written request from the other. ing: The two appraisers will choose an umpire. If a. Quantities and costs; they cannot agree upon an umpire within 15 b. Actual cash values; days, you or we may request that the choice c. Amounts of loss claimed; be made by a judge of a court of record in the d. Any written plans and specifications for state where the insured property is located. repair of the damaged property that you can The appraisers will separately state the ac- reasonably make available to us; and tual cash value and the amount of loss to e. Evidence that prior flood damage has each item. If the appraisers submit a written been repaired. report of an agreement to us, the amount 3. If we give you written notice within 30 agreed upon will be the amount of loss. If days after we receive your signed, sworn they fail to agree, they will submit their dif- proof of loss, we may: ferences to the umpire. A decision agreed to a. Repair, rebuild, or replace any part of by any two will set the amount of actual the lost, damaged, or destroyed property cash value and loss. with material or property of like kind and Each party will: quality or its functional equivalent; and 1. Pay its own appraiser; and b. Take all or any part of the damaged 2. Bear the other expenses of the appraisal property at the value that we agree upon or and umpire equally. its appraised value. Q. Mortgage Clause L. No Benefit to Bailee The word ‘‘mortgagee’’ includes trustee. No person or organization, other than you, Any loss payable under Coverage A—Build- having custody of covered property will ben- ing Property will be paid to any mortgagee efit from this insurance. of whom we have actual notice, as well as

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any other mortgagee or loss payee deter- pay us back first before you may keep any of mined to exist at the time of loss, and you, that money. as interests appear. If more than one mortgagee is named, the order of payment will be T. Continuous Lake Flooding the same as the order of precedence of the 1. If an insured building has been flooded mortgages. If we deny your claim, that de- by rising lake waters continuously for 90 nial will not apply to a valid claim of the days or more and it appears reasonably cer- mortgagee, if the mortgagee: tain that a continuation of this flooding will 1. Notifies us of any change in the owner- result in a covered loss to the insured build- ship or occupancy, or substantial change in ing equal to or greater than the building pol- risk of which the mortgagee is aware; icy limits plus the deductible or the max- 2. Pays any premium due under this policy imum payable under the policy for any one on demand if you have neglected to pay the building loss, we will pay you the lesser of premium; and these two amounts without waiting for the 3. Submits a signed, sworn proof of loss further damage to occur if you sign a release within 60 days after receiving notice from us agreeing: of your failure to do so. a. To make no further claim under this All terms of this policy apply to the mort- policy; gagee. b. Not to seek renewal of this policy; c. Not to apply for any flood insurance The mortgagee has the right to receive loss under the Act for property at the described payment even if the mortgagee has started location; and foreclosure or similar action on the building. d. Not to seek a premium refund for cur- If we decide to cancel or not renew this rent or prior terms. policy, it will continue in effect for the ben- If the policy term ends before the insured efit of the mortgagee only for 30 days after building has been flooded continuously for 90 we notify the mortgagee of the cancellation days, the provisions of this paragraph T.1. or non-renewal. will apply when as the insured building suf- If we pay the mortgagee for any loss and fers a covered loss before the policy term deny payment to you, we are subrogated to ends. all the rights of the mortgagee granted 2. If your insured building is subject to under the mortgage on the property. Sub- continuous lake flooding from a closed basin rogation will not impair the right of the lake, you may elect to file a claim under ei- mortgagee to recover the full amount of the ther paragraph T.1. above or this paragraph mortgagee’s claim. T.2. (A ‘‘closed basin lake’’ is a natural lake from which water leaves primarily through R. Suit Against Us evaporation and whose surface area now ex- You may not sue us to recover money ceeds or has exceeded one square mile at any under this policy unless you have complied time in the recorded past. Most of the na- with all the requirements of the policy. If tion’s closed basin lakes are in the western you do sue, you must start the suit within half of the United States, where annual evap- one year of the date of the written denial of oration exceeds annual precipitation and all or part of the claim, and you must file where lake levels and surface areas are sub- the suit in the United States District Court ject to considerable fluctuation due to wide of the district in which the insured property variations in the climate. These lakes may was located at the time of loss. This require- overtop their basins on rare occasions.) ment applies to any claim that you may Under this paragraph T.2 we will pay your have under this policy and to any dispute claim as if the building is a total loss even that you may have arising out of the han- though it has not been continuously inun- dling of any claim under the policy. dated for 90 days, subject to the following conditions: S. Subrogation a. Lake flood waters must damage or im- minently threaten to damage your building. Whenever we make a payment for a loss b. Before approval of your claim, you must: under this policy, we are subrogated to your (1) Agree to a claim payment that reflects right to recover for that loss from any other your buying back the salvage on a nego- person. That means that your right to re- tiated basis; and cover for a loss that was partly or totally (2) Grant the conservation easement de- caused by someone else is automatically scribed in FEMA’s ‘‘Policy Guidance for transferred to us, to the extent that we have Closed Basin Lakes,’’ to be recorded in the paid you for the loss. We may require you to office of the local recorder of deeds. FEMA, acknowledge this transfer in writing. After in consultation with the community in the loss, you may not give up our right to re- which the property is located, will identify cover this money or do anything that would on a map an area or areas of special consid- prevent us from recovering it. If you make eration (ASC) in which there is a potential any claim against any person who caused for flood damage from continuous lake flood- your loss and recover any money, you must ing. FEMA will give the community the

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agreed-upon map showing the ASC. This g. You must have NFIP flood insurance easement will only apply to that portion of coverage continuously in effect from a date the property in the ASC. It will allow certain established by FEMA until you file a claim agricultural and recreational uses of the under this paragraph T.2. If a subsequent land. The only structures that it will allow owner buys NFIP insurance that goes into on any portion of the property within the effect within 60 days of the date of transfer ASC are certain, simple agricultural and rec- of title, any gap in coverage during that 60- reational structures. If any of these allow- day period will not be a violation of this con- able structures are insurable buildings under tinuous coverage requirement. For the pur- the NFIP and are insured under the NFIP, pose of honoring a claim under this para- they will not be eligible for the benefits of graph T.2, we will not consider to be in effect this paragraph T.2. If a U.S. Army Corps of any increased coverage that became effective Engineers certified flood control project or after the date established by FEMA. The ex- otherwise certified flood control project ception to this is any increased coverage in later protects the property, FEMA will, upon the amount suggested by your insurer as an request, amend the ASC to remove areas pro- inflation adjustment. tected by those projects. The restrictions of h. This paragraph T.2. will be in effect for the easement will then no longer apply to a community when the FEMA Regional Di- any portion of the property removed from rector for the affected region provides to the the ASC; and community, in writing, the following: (3) Comply with paragraphs T.1.a. through T.1.d. above. (1) Confirmation that the community and c. Within 90 days of approval of your claim, the State are in compliance with the condi- you must move your building to a new locations in paragraphs T.2.e. and T.2.f. above, tion outside the ASC. FEMA will give you an and additional 30 days to move if you show that (2) The date by which you must have flood there is sufficient reason to extend the time. insurance in effect. d. Before the final payment of your claim, you must acquire an elevation certificate U. Duplicate Policies Not Allowed and a floodplain development permit from 1. Property may not be insured under more the local floodplain administrator for the than one NFIP policy. new location of your building. If we find that the duplication was not e. Before the approval of your claim, the knowingly created, we will give you written community having jurisdiction over your notice. The notice will advise you that you building must: may choose one of several options under the (1) Adopt a permanent land use ordinance, following procedures: or a temporary moratorium for a period not to exceed 6 months to be followed imme- a. If you choose to keep in effect the policy diately by a permanent land use ordinance, with the earlier effective date, you may also that is consistent with the provisions speci- choose to add the coverage limits of the later fied in the easement required in paragraph policy to the limits of the earlier policy. The T.2.b. above. change will become effective as of the effec- (2) Agree to declare and report any viola- tive date of the later policy. tions of this ordinance to FEMA so that b. If you choose to keep in effect the policy under Sec. 1316 of the National Flood Insur- with the later effective date, you may also ance Act of 1968, as amended, flood insurance choose to add the coverage limits of the ear- to the building can be denied; and lier policy to the limits of the later policy. (3) Agree to maintain as deed-restricted, The change will be effective as of the effec- for purposes compatible with open space or tive date of the later policy. agricultural or recreational use only, any af- In either case, you must pay the pro rata fected property the community acquires an premium for the increased coverage limits interest in. These deed restrictions must be within 30 days of the written notice. In no consistent with the provisions of paragraph event will the resulting coverage limits ex- T.2.b. above except that even if a certified ceed the permissible limits of coverage under project protects the property, the land use the Act or your insurable interest, whichever restrictions continue to apply if the property is less. We will make a refund to you, accord- was acquired under the Hazard Mitigation ing to applicable NFIP rules, of the premium Grant Program or the Flood Mitigation As- for the policy not being kept in effect. sistance Program. If a non-profit land trust 2. Your option under this Condition U. Du- organization receives the property as a dona- plicate Policies Not Allowed to elect which tion, that organization must maintain the NFIP policy to keep in effect does not apply property as deed-restricted, consistent with when duplicates have been knowingly cre- the provisions of paragraph T.2.b. above. ated. Losses occurring under such cir- f. Before the approval of your claim, the af- cumstances will be adjusted according to the fected State must take all action set forth in terms and conditions of the earlier policy. FEMA’s ‘‘Policy Guidance for Closed Basin The policy with the later effective date must Lakes.’’ be canceled.

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V. Loss Settlement We will pay you for direct physical loss by or from flood to your insured property if We will pay the least of the following you: amounts after application of the deductible: 1. Have paid the correct premium; 1. The applicable amount of insurance 2. Comply with all terms and conditions of under this policy; this policy; and 2. The actual cash value; or 3. Have furnished accurate information and 3. The amount it would cost to repair or re- statements. place the property with material of like kind We have the right to review the informa- and quality within a reasonable time after tion you give us at any time and to revise the loss. your policy based on our review.

VIII. LIBERALIZATION CLAUSE II. DEFINITIONS If we make a change that broadens your A. In this policy, ‘‘you’’ and ‘‘your’’ refer coverage under this edition of our policy, but to the insured(s) shown on the Declarations does not require any additional premium, Page of this policy. Insured(s) includes: any then that change will automatically apply to mortgagee and loss payee named in the Ap- your insurance as of the date we implement plication and Declarations Page, as well as the change, provided that this implementa- any other mortgagee or loss payee deter- tion date falls within 60 days before or dur- mined to exist at the time of loss in the ing the policy term stated on the Declara- order of precedence. ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ tions Page. refer to the insurer. Some definitions are complex because they IX. WHAT LAW GOVERNS are provided as they appear in the law or This policy and all disputes arising from regulations, or result from court cases. The the handling of any claim under the policy precise definitions are intended to protect are governed exclusively by the flood insur- you. ance regulations issued by FEMA, the Na- ‘‘Flood’’, as used in this flood insurance tional Flood Insurance Act of 1968, as amend- policy, means: ed (42 U.S.C. 4001, et seq.), and Federal com- 1. A general and temporary condition of mon law. partial or complete inundation of two or In Witness Whereof, we have signed this pol- more acres of normally dry land area or of icy below and hereby enter into this Insur- two or more properties (one of which is your ance Agreement. property) from: a. Overflow of inland or tidal waters; JO ANN HOWARD, b. Unusual and rapid accumulation or run- Administrator, Federal Insurance off of surface waters from any source; Administration. c. Mudflow. [65 FR 60778, Oct. 12, 2000] 2. Collapse or subsidence of land along the shore of a lake or similar body of water as a APPENDIX A(3) TO PART 61 result of erosion or undermining caused by waves or currents of water exceeding antici- FEDERAL EMERGENCY MANAGEMENT AGENCY pated cyclical levels which result in a flood FEDERAL INSURANCE ADMINISTRATION as defined in A.1.a above. B. The following are the other key defini- STANDARD FLOOD INSURANCE POLICY tions we use in this policy: 1. Act. The National Flood Insurance Act of RESIDENTIAL CONDOMINIUM BUILDING 1968 and any amendments to it. ASSOCIATION POLICY 2. Actual Cash Value. The cost to replace an I. AGREEMENT insured item of property at the time of loss, less the value of its physical depreciation. Please read the policy carefully. The flood 3. Application. The statement made and insurance provided is subject to limitations, signed by you or your agent in applying for restrictions, and exclusions. this policy. The application gives informa- This policy covers only a residential con- tion we use to determine the eligibility of dominium building in a regular program the risk, the kind of policy to be issued, and community. If the community reverts to the correct premium payment. The applica- emergency program status during the policy tion is part of this flood insurance policy. term and remains as an emergency program For us to issue you a policy, the correct pre- community at time of renewal, this policy mium payment must accompany the applica- cannot be renewed. tion. The Federal Emergency Management 4. Base Flood. A flood having a one percent Agency (FEMA) provides flood insurance chance of being equaled or exceeded in any under the terms of the National Flood Insur- given year. ance Act of 1968 and its Amendments, and 5. Basement. Any area of the building, in- Title 44 of the Code of Federal Regulations. cluding any sunken room or sunken portion

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of a room, having its floor below ground defray certain administrative expenses in- level (subgrade) on all sides. curred in carrying out the National Flood In- 6. Building. surance Program. This fee covers expenses a. A structure with two or more outside not covered by the expense constant. rigid walls and a fully secured roof, that is 17. Improvements. Fixtures, alterations, in- affixed to a permanent site; stallations, or additions comprising a part of b. A manufactured home (‘‘a manufactured the residential condominium building, in- home,’’ also known as a mobile home, is a cluding improvements in the units. structure: built on a permanent chassis, 18. Mudflow. A river of liquid and flowing transported to its site in one or more sec- mud on the surfaces of normally dry land tions, and affixed to a permanent founda- areas, as when earth is carried by a current tion); or of water. Other earth movements, such as c. A travel trailer without wheels, built on landslide, slope failure, or a saturated soil a chassis and affixed to a permanent founda- mass moving by liquidity down a slope, are tion, that is regulated under the commu- not mudflows. nity’s floodplain management and building 19. National Flood Insurance Program ordinances or laws. (NFIP). The program of flood insurance cov- Building does not mean a gas or liquid stor- erage and floodplain management adminis- age tank or a recreational vehicle, park tered under the Act and applicable Federal trailer or other similar vehicle, except as de- regulations in Title 44 of the Code of Federal scribed in B.6.c., above. Regulations, Subchapter B. 7. Cancellation. The ending of the insurance 20. Policy. The entire written contract be- coverage provided by this policy before the tween you and us. It includes: expiration date. a. This printed form; 8. Condominium. That form of ownership of b. The application and Declarations Page; real property in which each unit owner has c. Any endorsement(s) that may be issued; an undivided interest in common elements. and 9. Condominium Association. The entity, d. Any renewal certificate indicating that formed by the unit owners, responsible for coverage has been instituted for a new policy the maintenance and operation of: and new policy term. a. Common elements owned in undivided Only one building, which you specifically shares by unit owners; and described in the application, may be insured b. Other real property in which the unit under this policy. owners have use rights; where membership in 21. Pollutants. Substances that include, but the entity is a required condition of unit are not limited to, any solid, liquid, gaseous, ownership. or thermal irritant or contaminant, includ- 10. Declarations Page. A computer-gen- ing smoke, vapor, soot, fumes, acids, alkalis, erated summary of information you provided chemicals, and waste. Waste includes, but is in the application for insurance. The Dec- not limited to, materials to be recycled, re- larations Page also describes the term of the conditioned, or reclaimed. policy, limits of coverage, and displays the 22. Post-FIRM Building. A building for premium and our name. The Declarations which construction or substantial improve- Page is a part of this flood insurance policy. ment occurred after December 31, 1974, or on 11. Described Location. The location where or after the effective date of an initial Flood the insured building or personal property is Insurance Rate Map (FIRM), whichever is found. The described location is shown on later. the Declarations Page. 23. Probation Premium. A flat charge you 12. Direct Physical Loss By or From Flood. must pay on each new or renewal policy Loss or damage to insured property, directly issued covering property in a community caused by a flood. There must be evidence of that the NFIP has placed on probation under physical changes to the property. the provisions of 44 CFR 59.24. 13. Elevated Building. A building that has 24. Regular Program. The final phase of a no basement and that has its lowest elevated community’s participation in the National floor raised above ground level by foundation Flood Insurance Program. In this phase, a walls, shear walls, posts, piers, pilings, or Flood Insurance Rate Map is in effect and columns. full limits of coverage are available under 14. Emergency Program. The initial phase of the Act. a community’s participation in the National 25. Residential Condominium Building. A Flood Insurance Program. During this phase, building, owned and administered as a condo- only limited amounts of insurance are avail- minium, containing one or more family units able under the Act. and in which at least 75% of the floor area is 15. Expense Constant. A flat charge you residential. must pay on each new or renewal policy to 26. Special Flood Hazard Area. An area hav- defray the expenses of the Federal Govern- ing special flood or mudflow, and/or flood-re- ment related to flood insurance. lated erosion hazards, and shown on a Flood 16. Federal Policy Fee. A flat charge you Hazard Boundary Map or Flood Insurance must pay on each new or renewal policy to Rate Map as Zone A, AO, A1–A30, AE, A99,

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AH, AR, AR/A, AR/AE, AR/AH, AR/AO, AR/ (6) Plumbing fixtures; A1–A30, V1–V30, VE, or V. (7) Radiators; 27. Unit. A single-family unit in a residen- (8) Ranges; tial condominium building. (9) Refrigerators; and 28. Valued Policy. A policy in which the in- (10) Stoves. sured and the insurer agree on the value of 5. Materials and supplies to be used for the property insured, that value being payable in the event of a total loss. The Stand- construction, alteration or repair of the in- ard Flood Insurance Policy is not a valued sured building while the materials and sup- policy. plies are stored in a fully enclosed building at the described location or on an adjacent III. PROPERTY COVERED property. 6. A building under construction, alter- A. Coverage A—Building Property ation or repair at the described location. We insure against direct physical loss by a. If the structure is not yet walled or or from flood to: roofed as described in the definition for 1. The residential condominium building building (see II.B.6.a.), then coverage applies: described on the Declarations Page at the de- (1) Only while such work is in progress; or scribed location, including all units within (2) If such work is halted, only for a period the building and the improvements within of up to 90 continuous days thereafter. the units. b. However, coverage does not apply until 2. We also insure such building property for the building is walled and roofed if the low- a period of 45 days at another location, as set est floor, including the basement floor, of a forth in III.C.2.b., Property Removed to Safe- non-elevated building or the lowest elevated ty. floor of an elevated building is: 3. Additions and extensions attached to (1) Below the base flood elevation in Zones and in contact with the building by means of AH, AE, A1–30, AR, AR/AE, AR/AH, AR/A1– a rigid exterior wall, a solid load-bearing in- 30, AR/A, AR/AO; or terior wall, a stairway, an elevated walkway, or a roof. At your option, additions and ex- (2) Below the base flood elevation adjusted tensions connected by any of these methods to include the effect of wave action in Zones may be separately insured. Additions and ex- VE or V1–30. tensions attached to and in contact with the The lowest floor levels are based on the building by means of a common interior wall bottom of the lowest horizontal structural that is not a solid load-bearing wall are al- member of the floor in Zones VE or V1–V30 ways considered part of the building and can- and the top of the floor in Zones AH, AE, A1– not be separately insured. A30, AR, AR/AE, AR/AH, AR/A1–A30, AR/A, 4. The following fixtures, machinery and AR/AO. equipment, including its units, which are 7. A manufactured home or a travel trailer covered under Coverage A only: as described in the Definitions Section (See a. Awnings and canopies; II.B.b. and c.). b. Blinds; If the manufactured home is in a special c. Carpet permanently installed over unfin- flood hazard area, it must be anchored in the ished flooring; following manner at the time of the loss: d. Central air conditioners; a. By over-the-top or frame ties to ground e. Elevator equipment; anchors; or f. Fire extinguishing apparatus; b. In accordance with the manufacturer’s g. Fire sprinkler systems; specifications; or h. Walk-in freezers; c. In compliance with the community’s i. Furnaces; floodplain management requirements unless j. Light fixtures; it has been continuously insured by the k. Outdoor antennas and aerials fastened NFIP at the same described location since to buildings; September 30, 1982. l. Permanently installed cupboards, book- cases, paneling, and wallpaper; 8. Items of property in a building enclosure m. Pumps and machinery for operating below the lowest elevated floor of an ele- pumps; vated post-FIRM building located in zones n. Ventilating equipment; A1–A30, AE, AH, AR, AR/A, AR/AE, AR/AH, o. Wall mirrors, permanently installed; and AR/A1–A30, V1–V30, or VE, or in a basement, p. In the units within the building, in- regardless of the zone. Coverage is limited to stalled: the following: (1) Built-in dishwashers; a. Any of the following items, if installed (2) Built-in microwave ovens; in their functioning locations and, if nec- (3) Garbage disposal units; essary for operation, connected to a power (4) Hot water heaters, including solar source: water heaters; (1) Central air conditioners; (5) Kitchen cabinets; (2) Cisterns and the water in them;

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(3) Drywall for walls and ceilings in a base- i. Portable microwave ovens and portable ment and the cost of labor to nail it, unfin- dishwashers. ished and unfloated and not taped, to the 3. Coverage for items of property in a framing; building enclosure below the lowest elevated (4) Electrical junction and circuit breaker floor of an elevated post-FIRM building lo- boxes; cated in zones A1–A30, AE, AH, AR, AR/A, (5) Electrical outlets and switches; AR/AE, AR/AH, AR/A1–A30, V1–V30, or VE, or (6) Elevators, dumbwaiters, and related in a basement, regardless of the zone, is lim- equipment, except for related equipment in- ited to the following items, if installed in stalled below the base flood elevation after their functioning locations and, if necessary September 30, 1987; for operation, connected to a power source: (7) Fuel tanks and the fuel in them; a. Air conditioning units—portable or win- (8) Furnaces and hot water heaters; dow type; (9) Heat pumps; b. Clothes washers and dryers; and (10) Nonflammable insulation in a base- c. Food freezers, other than walk-in, and ment; food in any freezer. (11) Pumps and tanks used in solar energy 4. Special Limits. We will pay no more systems; than $2,500 for any one loss to one or more of (12) Stairways and staircases attached to the following kinds of personal property: the building, not separated from it by ele- a. Artwork, photographs, collectibles, or vated walkways; memorabilia, including but not limited to, (13) Sump pumps; porcelain or other figures, and sports cards; (14) Water softeners and the chemicals in b. Rare books or autographed items; them, water filters and faucets installed as an integral part of the plumbing system; c. Jewelry, watches, precious and semi-pre- (15) Well water tanks and pumps; cious stones, or articles of gold, silver, or (16) Required utility connections for any platinum; item in this list; and d. Furs or any article containing fur which (17) Footings, foundations, posts, pilings, represents its principal value. piers, or other foundation walls and anchor- 5. We will pay only for the functional value age systems required to support a building. of antiques. b. Clean-up. C. Coverage C—Other Coverages B. Coverage B—Personal Property 1. Debris Removal 1. If you have purchased personal property a. We will pay the expense to remove non- coverage, we insure, subject to B.2. and B.3. owned debris that is on or in insured prop- below, against direct physical loss by or erty and debris of insured property any- from flood to personal property that is inside where. the fully enclosed insured building and is: b. If you or a member of your household a. Owned by the unit owners of the condo- perform the removal work, the value of your minium association in common, meaning work will be based on the Federal minimum property in which each unit owner has an un- wage. divided ownership interest; or c. This coverage does not increase the Cov- b. Owned solely by the condominium asso- erage A or Coverage B limit of liability. ciation and used exclusively in the conduct 2. Loss Avoidance Measures of the business affairs of the condominium a. Sandbags, Supplies, and Labor association. (1) We will pay up to $1,000 for the costs We also insure such personal property for you incur to protect the insured building 45 days while stored at a temporary location, from a flood or imminent danger of flood, for as set forth in III.C.2.b., Property Removed the following: to Safety. (a) Your reasonable expenses to buy: 2. Coverage for personal property includes the following property, subject to B.1. above, (i) Sandbags, including sand to fill them; which is covered under Coverage B only: (ii) Fill for temporary levees; a. Air conditioning units—portable or win- (iii) Pumps; and dow type; (iv) Plastic sheeting and lumber used in b. Carpet, not permanently installed, over connection with these items; and unfinished flooring; (b) The value of work, at the Federal min- c. Carpets over finished flooring; imum wage, that you perform. d. Clothes washers and dryers; (2) This coverage for Sandbags, Supplies, e. ‘‘Cook-out’’ grills; and Labor applies only if damage to insured f. Food freezers, other than walk-in, and property by or from flood is imminent and the food in any freezer; the threat of flood damage is apparent g. Outdoor equipment and furniture stored enough to lead a person of common prudence inside the insured building; to anticipate flood damage. One of the fol- h. Ovens and the like; and lowing must also occur:

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(a) A general and temporary condition of ceed the maximum permitted under the Act. flooding in the area near the described loca- We do not charge a separate deductible for a tion must occur, even if the flood does not claim under Coverage D. reach the insured building; or 3. Eligibility. (b) A legally authorized official must issue a. A structure covered under Coverage A— an evacuation order or other civil order for Building Property sustaining a loss caused the community in which the insured building by a flood as defined by this policy must: is located calling for measures to preserve (1) Be a ‘‘repetitive loss structure.’’ A ‘‘re- life and property from the peril of flood. This petitive loss structure’’ is one that meets the coverage does not increase the Coverage A or following conditions: Coverage B limit of liability. (a) The structure is covered by a contract b. Property Removed to Safety of flood insurance issued under the NFIP. (1) We will pay up to $1,000 for the reason- (b) The structure has suffered flood damage able expenses you incur to move insured on 2 occasions during a 10-year period which property to a place other than the described ends on the date of the second loss. location that contains the property in order (c) The cost to repair the flood damage, on to protect it from flood or the imminent dan- average, equaled or exceeded 25% of the mar- ger of flood. ket value of the structure at the time of Reasonable expenses include the value of each flood loss. work, at the Federal minimum wage, that (d) In addition to the current claim, the you perform. NFIP must have paid the previous qualifying (2) If you move insured property to a loca- claim, and the State or community must tion other than the described location that have a cumulative, substantial damage pro- contains the property, in order to protect it vision or repetitive loss provision in its from flood or the imminent danger of flood, floodplain management law or ordinance we will cover such property while at that lo- being enforced against the structure; or cation for a period of 45 consecutive days (2) Be a structure that has had flood dam- from the date you begin to move it there. age in which the cost to repair equals or ex- The personal property that is moved must be ceeds 50% of the market value of the struc- placed in a fully enclosed building, or other- ture at the time of the flood. The State or wise reasonably protected from the ele- community must have a substantial damage ments. provision in its floodplain management law Any property removed, including a move- or ordinance being enforced against the able home described in II.6.b. and c., must be structure. placed above ground level or outside of the b. This Coverage D pays you to comply special flood hazard area. with State or local floodplain management This coverage does not increase the Cov- laws or ordinances that meet the minimum erage A or Coverage B limit of liability. standards of the National Flood Insurance Program found in the Code of Federal Regu- D. Coverage D—Increased Cost of Compliance lations at 44 CFR 60.3. We pay for compliance 1. General. activities that exceed those standards under This policy pays you to comply with a these conditions: State or local floodplain management law or (1) 3.a.(1) above. ordinance affecting repair or reconstruction (2) Elevation or floodproofing in any risk of a structure suffering flood damage. Com- zone to preliminary or advisory base flood pliance activities eligible for payment are: elevations provided by FEMA which the elevation, floodproofing, relocation, or dem- State or local government has adopted and is olition (or any combination of these activi- enforcing for flood-damaged structures in ties) of your structure. Eligible floodproofing such areas. (This includes compliance activi- activities are limited to: ties in B, C, X, or D zones which are being a. Non-residential structures. changed to zones with base flood elevations. b. Residential structures with basements This also includes compliance activities in that satisfy FEMA’s standards published in zones where base flood elevations are being the Code of Federal Regulations [44 CFR 60.6 increased, and a flood-damaged structure (b) or (c)]. must comply with the higher advisory base 2. Limit of Liability. flood elevation.) Increased Cost of Compli- We will pay you up to $20,000 under this ance coverage does not apply to situations in Coverage D—Increased Cost of Compliance, B, C, X, or D zones where the community has which only applies to policies with building derived its own elevations and is enforcing coverage (Coverage A). Our payment of elevation or floodproofing requirements for claims under Coverage D is in addition to the flood-damaged structures to elevations de- amount of coverage which you selected on rived solely by the community. the application and which appears on the (3) Elevation or floodproofing above the Declarations Page. But the maximum you base flood elevation to meet State or local can collect under this policy for both Cov- ‘‘freeboard’’ requirements, i.e., that a struc- erage A—Building Property and Coverage ture must be elevated above the base flood D—Increased Cost of Compliance cannot ex- elevation.

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c. Under the minimum NFIP criteria at 44 e. Any Increased Cost of Compliance under CFR 60.3(b)(4), States and communities must this Coverage D: require the elevation or floodproofing of (1) Until the building is elevated, structures in unnumbered A zones to the floodproofed, demolished, or relocated on the base flood elevation where elevation data is same or to another premises; and obtained from a Federal, State, or other (2) Unless the building is elevated, source. Such compliance activities are also floodproofed, demolished, or relocated as eligible for Coverage D. soon as reasonably possible after the loss, d. This coverage will also pay for the incre- not to exceed two years. mental cost, after demolition or relocation, f. Any code upgrade requirements, e.g., of elevating or floodproofing a structure dur- plumbing or electrical wiring, not specifi- ing its rebuilding at the same or another site cally related to the State or local floodplain to meet State or local floodplain manage- management law or ordinance. ment laws or ordinances, subject to Exclu- g. Any compliance activities needed to sion D.5.g.below relating to improvements. bring additions or improvements made after e. This coverage will also pay to bring a the loss occurred into compliance with State flood-damaged structure into compliance or local floodplain management laws or ordi- with State or local floodplain management nances. laws or ordinances even if the structure had h. Loss due to any ordinance or law that received a variance before the present loss you were required to comply with before the from the applicable floodplain management current loss. requirements. i. Any rebuilding activity to standards 4. Conditions. that do not meet the NFIP’s minimum re- a. When a structure covered under Cov- quirements. This includes any situation erage A—Building Property sustains a loss where the insured has received from the caused by a flood, our payment for the loss State or community a variance in connec- under this Coverage D will be for the in- tion with the current flood loss to rebuild creased cost to elevate, floodproof, relocate, the property to an elevation below the base or demolish (or any combination of these ac- flood elevation. tivities) caused by the enforcement of cur- j. Increased Cost of Compliance for a ga- rent State or local floodplain management rage or carport. ordinances or laws. Our payment for eligible k. Any structure insured under an NFIP demolition activities will be for the cost to Group Flood Insurance Policy. demolish and clear the site of the building l. Assessments made by a condominium as- debris or a portion thereof caused by the en- sociation on individual condominium unit forcement of current State or local flood- owners to pay increased costs of repairing plain management ordinances or laws. Eligi- commonly owned buildings after a flood in ble activities for the cost of clearing the site compliance with State or local floodplain will include those necessary to discontinue management ordinances or laws. utility service to the site and ensure proper 6. Other Provisions. abandonment of on-site utilities. a. Increased Cost of Compliance coverage b. When the building is repaired or rebuilt, will not be included in the calculation to de- it must be intended for the same occupancy termine whether coverage meets the coinsur- as the present building unless otherwise re- ance requirement for replacement cost cov- quired by current floodplain management or- erage under VIII. General Conditions, V. dinances or laws. Loss Settlement. 5. Exclusions. b. All other conditions and provisions of Under this Coverage D—Increased Cost of this policy apply. Compliance, we will not pay for: IV. PROPERTY NOT COVERED a. The cost to comply with any floodplain management law or ordinance in commu- We do not cover any of the following: nities participating in the Emergency Pro- 1. Personal property not inside the fully gram. enclosed building; b. The cost associated with enforcement of 2. A building, and personal property in it, any ordinance or law that requires any in- located entirely in, on, or over water or sea- sured or others to test for, monitor, clean up, ward of mean high tide, if constructed or remove, contain, treat, detoxify or neu- substantially improved after September 30, tralize, or in any way respond to, or assess 1982; the effects of pollutants. 3. Open structures, including a building c. The loss in value to any insured building used as a boathouse or any structure or or other structure due to the requirements of building into which boats are floated, and any ordinance or law. personal property located in, on, or over d. The loss in residual value of the water; undamaged portion of a building demolished 4. Recreational vehicles other than travel as a consequence of enforcement of any trailers described in the Definitions Section State or local floodplain management law or (see II.B.6.c.) whether affixed to a permanent ordinance. foundation or on wheels;

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5. Self-propelled vehicles or machines, in- 5. Any additional living expenses incurred cluding their parts and equipment. while the insured building is being repaired However, we do cover self-propelled vehi- or is unable to be occupied for any reason; cles or machines, provided they are not li- 6. The cost of complying with any ordi- censed for use on public roads and are: nance or law requiring or regulating the con- a. Used mainly to service the described lo- struction, demolition, remodeling, renova- cation, or tion, or repair of property, including removal b. Designed and used to assist handicapped of any resulting debris. This exclusion does persons, while the vehicles or machines are not apply to any eligible activities that we inside a building at the described location; describe in Coverage D—Increased Cost of 6. Land, land values, lawns, trees, shrubs, Compliance; or plants, growing crops, or animals; 7. Any other economic loss. 7. Accounts, bills, coins, currency, deeds, B. We do not insure a loss directly or indi- evidences of debt, medals, money, scrip, rectly caused by a flood that is already in stored value cards, postage stamps, securi- progress at the time and date: ties, bullion, manuscripts, or other valuable 1. The policy term begins; or papers; 2. Coverage is added at your request. C. We do not insure for loss to property 8. Underground structures and equipment, caused directly by earth movement even if including wells, septic tanks, and septic sys- the earth movement is caused by flood. Some tems; examples of earth movement that we do not 9. Those portions of walks, walkways, cover are: decks, driveways, patios, and other surfaces, 1. Earthquake; all whether protected by a roof or not, lo- 2. Landslide; cated outside the perimeter, exterior walls of 3. Land subsidence; the insured building; 4. Sinkholes; 10. Containers, including related equip- 5. Destabilization or movement of land ment, such as, but not limited to, tanks con- that results from accumulation of water in taining gases or liquids; subsurface land areas; or 11. Buildings and all their contents if more 6. Gradual erosion. than 49% of the actual cash value of the We do, however, pay for losses from mud- building is below ground, unless the lowest flow and land subsidence as a result of ero- level is at or above the base flood elevation sion that are specifically covered under our and is below ground by reason of earth hav- definition of flood (see II.A.1.c. and II.A.2.). ing been used as insulation material in con- D. We do not insure for direct physical loss junction with energy efficient building tech- caused directly or indirectly by: niques; 1. The pressure or weight of ice; 12. Fences, retaining walls, seawalls, bulk- 2. Freezing or thawing; heads, wharves, piers, bridges, and docks; 3. Rain, snow, sleet, hail, or water spray; 13. Aircraft or watercraft, or their fur- 4. Water, moisture, mildew, or mold dam- nishings and equipment; age that results primarily from any condi- 14. Hot tubs and spas that are not bath- tion: room fixtures, and swimming pools, and a. Substantially confined to the insured their equipment such as, but not limited to, building; or heaters, filters, pumps, and pipes, wherever b. That is within your control including, located; but not limited to: 15. Property not eligible for flood insur- (1) Design, structural, or mechanical de- ance pursuant to the provisions of the Coast- fects; al Barrier Resources Act and the Coastal (2) Failures, stoppages, or breakage of Barrier Improvements Act of 1990 and water or sewer lines, drains, pumps, fixtures, amendments to these Acts; or equipment; or 16. Personal property used in connection (3) Failure to inspect and maintain the with any incidental commercial occupancy property after a flood recedes; or use of the building. 5. Water or water-borne material that: a. Backs up through sewers or drains; V. EXCLUSIONS b. Discharges or overflows from a sump, sump pump, or related equipment; or A. We only pay for direct physical loss by c. Seeps or leaks on or through insured or from flood, which means that we do not property; pay you for: unless there is a flood in the area and the 1. Loss of revenue or profits; flood is the proximate cause of the sewer, 2. Loss of access to the insured property or drain, or sump pump discharge or overflow, described location; or the seepage of water; 3. Loss of use of the insured property or de- 6. The pressure or weight of water unless scribed location; there is a flood in the area and the flood is 4. Loss from interruption of business or the proximate cause of the damage from the production; pressure or weight of water.

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7. Power, heating, or cooling failure unless 2. Multiply the amount of loss, before ap- the failure results from direct physical loss plication of the deductible, by the figure de- by or from flood to power, heating or cooling termined in C.1. above. equipment situated on the described loca- 3. Subtract the deductible from the figure tion; determined in C.2. above. 8. Theft, fire, explosion, wind, or wind- We will pay the amount determined in C.3. storm; above, or the amount of insurance carried, 9. Anything you or your agents do or con- whichever is less. The amount of insurance spire to do to cause loss by flood delib- carried, if in excess of the applicable max- erately; or imum amount of insurance available under 10. Alteration of the insured property that the NFIP, is reduced accordingly. significantly increases the risk of flooding. E. We do not insure for loss to any building Examples or personal property located on land leased from the Federal Government, arising from Example #1 (Inadequate Insurance) or incident to the flooding of the land by the Replacement value of the building—$250,000 Federal Government, where the lease ex- Required amount of insurance—$200,000 pressly holds the Federal Government harm- (80% of replacement value of $250,000) less under flood insurance issued under any Actual amount of insurance carried—$180,000 Federal Government program. Amount of the loss—$150,000 F. We do not pay for the testing for or Deductible—$500 monitoring of pollutants unless required by Step 1:180,000 ÷ 200,000 = .90 law or ordinance. (90% of what should be carried.) Step 2: 150,000 × .90 = 135,000 VI. DEDUCTIBLES Step 3: 135,000 ¥ 500 = 134,500 A. When a loss is covered under this policy, We will pay no more than $134,500. The re- we will pay only that part of the loss that maining $15,500 is not covered due to the co- exceeds the applicable deductible amount, insurance penalty ($15,000) and application of subject to the limit of insurance that ap- the deductible ($500). plies. The deductible amount is shown on the Declarations Page. Example #2 (Adequate Insurance) However, when a building under construction, alteration, or repair does not have at Replacement value of the building—$500,000 least two rigid exterior walls and a fully se- Required amount of insurance—$400,000 cured roof at the time of loss, your deduct- (80% of replacement value of $500,000) ible amount will be two times the deductible Actual amount of insurance carried—$400,000 that would otherwise apply to a completed Amount of the loss—$200,000 building. Deductible—$500 B. In each loss from flood, separate In this example there is no coinsurance deductibles apply to the building and per- penalty, because the actual amount of insur- sonal property insured by this policy. ance carried meets the required amount. We C. No deductible applies to: will pay no more than $199,500 ($200,000 1. III.C.2. Loss Avoidance Measures; or amount of loss minus the $500 deductible). 2. III.D. Increased Cost of Compliance. D. In calculating the full replacement cost of a building: VII. COINSURANCE 1. The replacement cost value of any cov- A. This Coinsurance Section applies only ered building property will be included; to coverage on the building. 2. The replacement cost value of any build- B. We will impose a penalty on loss paying property not covered under this policy ment unless the amount of insurance appli- will not be included; and cable to the damaged building is: 3. Only the replacement cost value of im- 1. At least 80% of its replacement cost; or provements installed by the condominium 2. The maximum amount of insurance association will be included. available for that building under the NFIP, VIII. GENERAL CONDITIONS whichever is less. C. If the actual amount of insurance on the A. Pair and Set Clause. building is less than the required amount in In case of loss to an article that is part of accordance with the terms of VII. B. above, a pair or set, we will have the option of pay- then loss payment is determined as follows ing you: (subject to all other relevant conditions in 1. An amount equal to the cost of replacing this policy, including those pertaining to the lost, damaged, or destroyed article, less valuation, adjustment, settlement, and pay- depreciation; or ment of loss): 2. An amount which represents the fair 1. Divide the actual amount of insurance proportion of the total value of the pair or carried on the building by the required set that the lost, damaged, or destroyed arti- amount of insurance. cle bears to the pair or set.

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B. Concealment or Fraud and Policy Void- This policy cannot be changed nor can any ance. of its provisions be waived without the ex- 1. With respect to all insureds under this press written consent of the Federal Insur- policy, this policy: ance Administrator. No action that we take a. Is void, under the terms of this policy constitutes a b. Has no legal force or effect, waiver of any of our rights. You may assign c. Cannot be renewed, and this policy in writing when you transfer title d. Cannot be replaced by a new NFIP pol- of your property to someone else except icy, if, before or after a loss, you or any under these conditions: other insured or your agent have at any 1. When this policy covers only personal time: property; or (1) Intentionally concealed or misrepre- 2. When this policy covers a structure dur- sented any material fact or circumstance, ing the course of construction. (2) Engaged in fraudulent conduct, or E. Cancellation of Policy by You. (3) Made false statements, 1. You may cancel this policy in accord- relating to this policy or any other NFIP in- ance with the applicable rules and regula- surance. tions of the NFIP. 2. This policy will be void as of the date 2. If you cancel this policy, you may be en- the wrongful acts described in B.1. above titled to a full or partial refund of premium were committed. also under the applicable rules and regula- 3. Fines, civil penalties, and imprisonment tions of the NFIP. under applicable Federal laws may also F. Non-Renewal of the Policy by Us. apply to the acts of fraud or concealment de- Your policy will not be renewed: scribed above. 4. This policy is also void for reasons other 1. If the community where your covered than fraud, misrepresentation, or wrongful property is located stops participating in the act. This policy is void from its inception NFIP, or and has no legal force under the following 2. Your building has been declared ineli- conditions: gible under section 1316 of the Act. a. If the property is located in a commu- G. Reduction and Reformation of Coverage. nity that was not participating in the NFIP 1. If the premium we received from you was on the policy’s inception date and did not not enough to buy the kind and amount of join or re-enter the program during the pol- coverage you requested, we will provide only icy term and before the loss occurred; or the amount of coverage that can be pur- b. If the property listed on the application chased for the premium payment we re- is not otherwise eligible for coverage under ceived. the NFIP. 2. The policy can be reformed to increase C. Other Insurance. the amount of coverage resulting from the 1. If a loss covered by this policy is also reduction described in G.1. above the amount covered by other insurance that includes that you requested as follows: flood coverage not issued under the Act, we a. Discovery of Insufficient Premium or In- will not pay more than the amount of insur- complete Rating Information Before a Loss. ance that you are entitled to for lost, dam- (1) If we discover before you have a flood aged or destroyed property insured under loss that your premium payment was not this policy subject to the following: enough to buy the requested amount of cov- a. We will pay only the proportion of the erage, we will send you and any mortgagee loss that the amount of insurance that ap- or trustee known to us a bill for the required plies under this policy bears to the total additional premium for the current policy amount of insurance covering the loss, un- term (or that portion of the current policy less C.1.b. or c. immediately below applies. term following any endorsement changing b. If the other policy has a provision stat- the amount of coverage). If you or the mort- ing that it is excess insurance, this policy gagee or trustee pay the additional premium will be primary. within 30 days from the date of our bill, we c. This policy will be primary (but subject will reform the policy to increase the to its own deductible) up to the deductible in amount of coverage to the originally re- the other flood policy (except another policy quested amount effective to the beginning of as described in C.1.b. above). When the other the current policy term (or subsequent date deductible amount is reached, this policy of any endorsement changing the amount of will participate in the same proportion that coverage). the amount of insurance under this policy (2) If we determine before you have a flood bears to the total amount of both policies, loss that the rating information we have is for the remainder of the loss. incomplete and prevents us from calculating 2. If there is a flood insurance policy in the the additional premium, we will ask you to name of a unit owner that covers the same send the required information. You must loss as this policy, then this policy will be submit the information within 60 days of our primary. request. Once we determine the amount of D. Amendments, Waivers, Assignment. additional premium for the current policy

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term, we will follow the procedure in second bill providing a revised due date, G.2.a.(1) above. which will be 30 days after the date on which (3) If we do not receive the additional pre- the bill is mailed. mium (or additional information) by the b. If we do not receive the premium re- date it is due, the amount of coverage can quested in the second bill by the revised due only be increased by endorsement subject to date, then we will not renew the policy. In any appropriate waiting period. that case, the policy will remain as an ex- b. Discovery of Insufficient Premium or In- pired policy as of the expiration date shown complete Rating Information After a Loss. on the Declarations Page. (1) If we discover after you have a flood 4. In connection with the renewal of this loss that your premium payment was not policy, we may ask you during the policy enough to buy the requested amount of cov- term to re-certify, on a Recertification Ques- erage, we will send you and any mortgagee tionnaire that we will provide you, the rat- or trustee known to us a bill for the required ing information used to rate your most re- additional premium for the current and the cent application for or renewal of insurance. prior policy terms. If you or the mortgagee I. Conditions Suspending or Restricting Insur- or trustee pay the additional premium with- ance. in 30 days of the date of our bill, we will re- We are not liable for loss that occurs while form the policy to increase the amount of there is a hazard that is increased by any coverage to the originally requested amount means within your control or knowledge. effective to the beginning of the prior policy J. Requirements in Case of Loss. term. In case of a flood loss to insured property, (2) If we discover after you have a flood you must: loss that the rating information we have is 1. Give prompt written notice to us; incomplete and prevents us from calculating 2. As soon as reasonably possible, separate the additional premium, we will ask you to the damaged and undamaged property, put- send the required information. You must ting it in the best possible order so that we submit the information before your claim may examine it; can be paid. Once we determine the amount 3. Prepare an inventory of damaged per- of additional premium for the current and sonal property showing the quantity, de- prior policy terms, we will follow the proce- scription, actual cash value, and amount of dure in G.2.b.(1) above. loss. Attach all bills, receipts and related (3) If we do not receive the additional pre- documents; mium by the date it is due, your flood insur- 4. Within 60 days after the loss, send us a ance claim will be settled based on the re- proof of loss, which is your statement of the duced amount of coverage. The amount of amount you are claiming under the policy coverage can only be increased by endorse- signed and sworn to by you, and which fur- ment subject to any appropriate waiting pe- nishes us with the following information: riod. a. The date and time of loss; 3. However, if we find that you or your b. A brief explanation of how the loss hap- agent intentionally did not tell us, or fal- pened; sified, any important fact or circumstance or c. Your interest (for example, ‘‘owner’’) did anything fraudulent relating to this in- and the interest, if any, of others in the dam- surance, the provisions of Condition B. Con- aged property; cealment or Fraud and Policy Voidance d. Details of any other insurance that may above apply. cover the loss; H. Policy Renewal. e. Changes in title or occupancy of the in- 1. This policy will expire at 12:01 a.m. on sured property during the term of the policy; the last day of the policy term. f. Specifications of damaged insured build- 2. We must receive the payment of the ap- ings and detailed repair estimates; propriate renewal premium within 30 days of g. Names of mortgagees or anyone else the expiration date. having a lien, charge, or claim against the 3. If we find, however, that we did not place insured property; your renewal notice into the U.S. Postal h. Details about who occupied any insured Service, or if we did mail it, we made a mis- building at the time of loss and for what pur- take, e.g., we used an incorrect, incomplete, pose; and or illegible address, which delayed its deliv- i. The inventory of damaged personal prop- ery to you before the due date for the re- erty described in J.3. above. newal premium, then we will follow these 5. In completing the proof of loss, you must procedures: use your own judgment concerning the a. If you or your agent notified us, not amount of loss and justify that amount. later than one year after the date on which 6. You must cooperate with the adjuster or the payment of the renewal premium was representative in the investigation of the due, of nonreceipt of a renewal notice before claim. the due date for the renewal premium, and 7. The insurance adjuster whom we hire to we determine that the circumstances in the investigate your claim may furnish you with preceding paragraph apply, we will mail a a proof of loss form, and she or he may help

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you complete it. However, this is a matter of No person or organization, other than you, courtesy only, and you must still send us a having custody of covered property will ben- proof of loss within sixty days after the loss efit from this insurance. even if the adjuster does not furnish the M. Loss Payment. form or help you complete it. 1. We will adjust all losses with you. We 8. We have not authorized the adjuster to will pay you unless some other person or en- approve or disapprove claims or to tell you tity is named in the policy or is legally enti- whether we will approve your claim. tled to receive payment. Loss will be payable 9. At our option, we may accept the adjust- 60 days after we receive your proof of loss (or er’s report of the loss instead of your proof of within 90 days after the insurance adjuster loss. The adjuster’s report will include infor- files an adjuster’s report signed and sworn to mation about your loss and the damages you by you in lieu of a proof of loss) and: sustained. You must sign the adjuster’s re- a. We reach an agreement with you; port. At our option, we may require you to b. There is an entry of a final judgment; or swear to the report. c. There is a filing of an appraisal award with us, as provided in VIII. P. K. Our Options After a Loss. 2. If we reject your proof of loss in whole or Options that we may, in our sole discre- in part you may: tion, exercise after loss include the fol- a. Accept such denial of your claim; lowing: b. Exercise your rights under this policy; 1. At such reasonable times and places that or we may designate, you must: c. File an amended proof of loss as long as a. Show us or our representative the dam- it is filed within 60 days of the date of the aged property; loss. b. Submit to examination under oath, N. Abandonment. while not in the presence of another insured, You may not abandon damaged or and sign the same; and undamaged insured property to us. c. Permit us to examine and make extracts O. Salvage. and copies of: We may permit you to keep damaged in- (1) Any policies of property insurance insured property after a loss, and we will re- suring you against loss and the deed estab- duce the amount of the loss proceeds payable lishing your ownership of the insured real to you under the policy by the value of the property; salvage. (2) Condominium association documents P. Appraisal. including the Declarations of the condo- If you and we fail to agree on the actual minium, its Articles of Association or Incor- cash value or, if applicable, replacement cost poration, Bylaws, and rules and regulations; of the damaged property so as to determine and the amount of loss, then either may demand (3) All books of accounts, bills, invoices an appraisal of the loss. In this event, you and other vouchers, or certified copies per- and we will each choose a competent and im- taining to the damaged property if the origi- partial appraiser within 20 days after receiv- nals are lost. ing a written request from the other. The 2. We may request, in writing, that you two appraisers will choose an umpire. If they furnish us with a complete inventory of the cannot agree upon an umpire within 15 days, lost, damaged, or destroyed property, includ- you or we may request that the choice be ing: made by a judge of a court of record in the a. Quantities and costs; state where the insured property is located. b. Actual cash values or replacement cost The appraisers will separately state the ac- (whichever is appropriate); tual cash value, the replacement cost, and the amount of loss to each item. If the ap- c. Amounts of loss claimed; praisers submit a written report of an agree- d. Any written plans and specifications for ment to us, the amount agreed upon will be repair of the damaged property that you can the amount of loss. If they fail to agree, they make reasonably available to us; and will submit their differences to the umpire. e. Evidence that prior flood damage has A decision agreed to by any two will set the been repaired. amount of actual cash value and loss, or if it 3. If we give you written notice within 30 applies, the replacement cost and loss. days after we receive your signed, sworn Each party will: proof of loss, we may: 1. Pay its own appraiser; and a. Repair, rebuild, or replace any part of 2. Bear the other expenses of the appraisal the lost, damaged, or destroyed property and umpire equally. with material or property of like kind and Q. Mortgage Clause. quality or its functional equivalent; and The word ‘‘mortgagee’’ includes trustee. b. Take all or any part of the damaged Any loss payable under Coverage A—Build- property at the value we agree upon or its ing will be paid to any mortgagee of whom appraised value. we have actual notice, as well as any other L. No Benefit to Bailee. mortgagee or loss payee determined to exist

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at the time of loss, and you, as interests ap- days or more and it appears reasonably cer- pear. If more than one mortgagee is named, tain that a continuation of this flooding will the order of payment will be the same as the result in a covered loss to the insured build- order of precedence of the mortgages. ing equal to or greater than the building pol- If we deny your claim, that denial will not icy limits plus the deductible or the max- apply to a valid claim of the mortgagee, if imum payable under the policy for any one the mortgagee: building loss, we will pay you the lesser of 1. Notifies us of any change in the owner- these two amounts without waiting for the ship or occupancy, or substantial change in further damage to occur if you sign a release risk, of which the mortgagee is aware; agreeing: 2. Pays any premium due under this policy a. To make no further claim under this on demand if you have neglected to pay the policy; premium; and b. Not to seek renewal of this policy; 3. Submits a signed, sworn proof of loss c. Not to apply for any flood insurance within 60 days after receiving notice from us under the Act for property at the described of your failure to do so. location; and All of the terms of this policy apply to the d. Not to seek a premium refund for cur- mortgagee. rent or prior terms. The mortgagee has the right to receive loss If the policy term ends before the insured payment even if the mortgagee has started building has been flooded continuously for 90 foreclosure or similar action on the building. days, the provisions of this paragraph T.1. If we decide to cancel or not renew this will apply as long as the insured building policy, it will continue in effect for the ben- suffers a covered loss before the policy term efit of the mortgagee only for 30 days after ends. we notify the mortgagee of the cancellation 2. If your insured building is subject to or non-renewal. continuous lake flooding from a closed basin If we pay the mortgagee for any loss and lake, you may elect to file a claim under ei- deny payment to you, we are subrogated to ther paragraph T.1. above or this paragraph all the rights of the mortgagee granted T.2. (A ‘‘closed basin lake’’ is a natural lake under the mortgage on the property. Sub- from which water leaves primarily through rogation will not impair the right of the evaporation and whose surface area now ex- mortgagee to recover the full amount of the ceeds or has exceeded one square mile at any mortgagee’s claim. time in the recorded past. Most of the na- R. Suit Against Us. tion’s closed basin lakes are in the western You may not sue us to recover money half of the United States where annual evap- under this policy unless you have complied oration exceeds annual precipitation and with all the requirements of the policy. If where lake levels and surface areas are sub- you do sue, you must start the suit within ject to considerable fluctuation due to wide one year of the date of the written denial of variations in the climate. These lakes may all or part of the claim and you must file the overtop their basins on rare occasions.) suit in the United States District Court of Under this paragraph T.2, we will pay your the district in which the insured property claim as if the building is a total loss even was located at the time of loss. This require- though it has not been continuously inun- ment applies to any claim that you may dated for 90 days, subject to the following have under this policy and to any dispute conditions: that you may have arising out of the han- a. Lake flood waters must damage or im- dling of any claim under the policy. minently threaten to damage your building. S. Subrogation. b. Before approval of your claim, you must: Whenever we make a payment for a loss (1) Agree to a claim payment that reflects under this policy, we are subrogated to your your buying back the salvage on a nego- right to recover for that loss from any other tiated basis; and person. That means that your right to re- (2) Grant the conservation easement con- cover for a loss that was partly or totally tained in FEMA’s ‘‘Policy Guidance for caused by someone else is automatically Closed Basin Lakes,’’ to be recorded in the transferred to us, to the extent that we have office of the local recorder of deeds. FEMA, paid you for the loss. We may require you to in consultation with the community in acknowledge this transfer in writing. After which the property is located, will identify the loss, you may not give up our right to re- on a map an area or areas of special consid- cover this money or do anything that would eration (ASC) in which there is a potential prevent us from recovering it. If you make for flood damage from continuous lake flood- any claim against any person who caused ing. FEMA will give the community the your loss and recover any money, you must agreed-upon map showing the ASC. This pay us back first before you may keep any of easement will only apply to that portion of that money. the property in the ASC. It will allow certain T. Continuous Lake Flooding. agricultural and recreational uses of the 1. If an insured building has been flooded land. The only structures that it will allow by rising lake waters continuously for 90 on any portion of the property within the

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ASC are certain simple agricultural and rec- of title, any gap in coverage during that 60- reational structures. If any of these allow- day period will not be a violation of this con- able structures are insurable buildings under tinuous coverage requirement. For the pur- the NFIP and are insured under the NFIP, pose of honoring a claim under this para- they will not be eligible for the benefits of graph T.2., we will not consider to be in ef- this paragraph T.2. If a U.S. Army Corps of fect any increased coverage that became ef- Engineers certified flood control project or fective after the date established by FEMA. otherwise certified flood control project The exception to this is any increased cov- later protects the property, FEMA will, upon erage in the amount suggested by your in- request, amend the ASC to remove areas pro- surer as an inflation adjustment. tected by those projects. The restrictions of h. This paragraph T.2. will be in effect for the easement will then no longer apply to a community when the FEMA Regional Di- any portion of the property removed from rector for the affected region provides to the the ASC; and community, in writing, the following: (3) Comply with paragraphs T.1.a. through (1) Confirmation that the community and T.1.d. above. the State are in compliance with the condi- c. Within 90 days of approval of your claim, tions in paragraphs T.2.e. and T.2.f. above, you must move your building to a new loca- and tion outside the ASC. FEMA will give you an (2) The date by which you must have flood additional 30 days to move if you show there insurance in effect. is sufficient reason to extend the time. U. Duplicate Policies Not Allowed. d. Before the final payment of your claim, 1. We will not insure your property under you must acquire an elevation certificate more than one NFIP policy. and a floodplain development permit from If we find that the duplication was not the local floodplain administrator for the knowingly created, we will give you written new location of your building. notice. The notice will advise you that you e. Before the approval of your claim, the may choose one of several options under the community having jurisdiction over your following procedures: building must: a. If you choose to keep in effect the policy (1) Adopt a permanent land use ordinance, with the earlier effective date, you may also or a temporary moratorium for a period not choose to add the coverage limits of the later to exceed 6 months to be followed imme- policy to the limits of the earlier policy. The diately by a permanent land use ordinance, that is consistent with the provisions speci- change will become effective as of the effec- fied in the easement required in paragraph tive date of the later policy. T.2.b. above; b. If you choose to keep in effect the policy (2) Agree to declare and report any viola- with the later effective date, you may also tions of this ordinance to FEMA so that choose to add the coverage limits of the ear- under Sec. 1316 of the National Flood Insur- lier policy to the limits of the later policy. ance Act of 1968, as amended, flood insurance The change will be effective as of the effec- to the building can be denied; and tive date of the later policy. (3) Agree to maintain as deed-restricted, In either case, you must pay the pro rata for purposes compatible with open space or premium for the increased coverage limits agricultural or recreational use only, any af- within 30 days of the written notice. In no fected property the community acquires an event will the resulting coverage limits ex- interest in. These deed restrictions must be ceed the permissible limits of coverage under consistent with the provisions of paragraph the Act or your insurable interest, whichever T.2.b. above, except that even if a certified is less. We will make a refund to you, accord- project protects the property, the land use ing to applicable NFIP rules, of the premium restrictions continue to apply if the property for the policy not being kept in effect. was acquired under the Hazard Mitigation 2. The insured’s option under this condi- Grant Program or the Flood Mitigation As- tion U. Duplicate Policies Not Allowed to sistance Program. If a non-profit land trust elect which NFIP policy to keep in effect organization receives the property as a dona- does not apply when duplicates have been tion, that organization must maintain the knowingly created. Losses occurring under property as deed-restricted, consistent with such circumstances will be adjusted accord- the provisions of paragraph T.2.b. above. ing to the terms and conditions of the earlier f. Before the approval of your claim, the af- policy. The policy with the later effective fected State must take all action set forth in date must be canceled. FEMA’s ‘‘Policy Guidance for Closed Basin V. Loss Settlement. Lakes.’’ 1. Introduction g. You must have NFIP flood insurance coverage continuously in effect from a date This policy provides three methods of set- established by FEMA until you file a claim tling losses: Replacement Cost, Special Loss under this paragraph T.2. If a subsequent Settlement, and Actual Cash Value. Each owner buys NFIP insurance that goes into method is used for a different type of prop- effect within 60 days of the date of transfer erty, as explained in a.-c. below.

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a. Replacement Cost Loss Settlement de- 4. Actual Cash Value Loss Settlement scribed in V.2. below applies to buildings a. The types of property noted below are other than manufactured homes or travel subject to actual cash value loss settlement: trailers. (1) Personal property; b. Special Loss Settlement described in (2) Insured property abandoned after a loss V.3. below applies to a residential condo- and that remains as debris at the described minium building that is a travel trailer or a location; manufactured home. (3) Outside antennas and aerials, awning, c. Actual Cash Value loss settlement ap- and other outdoor equipment; plies to all other property covered under this (4) Carpeting and pads; policy, as outlined in V.4. below. (5) Appliances; and (6) A manufactured home or mobile home 2. Replacement Cost Loss Settlement or a travel trailer as defined in II.B.6.b. or c. a. We will pay to repair or replace a dam- that does not meet the conditions for special aged or destroyed building, after application loss settlement in V.3. above. of the deductible and without deduction for b. We will pay the least of the following depreciation, but not more than the least of amounts: the following amounts: (1) The applicable amount of insurance under this policy; (1) The amount of insurance in this policy (2) The actual cash value (as defined in that applies to the building; II.B.2.); or (2) The replacement cost of that part of the (3) The amount it would cost to repair or building damaged, with materials of like replace the property with material of like kind and quality, and for like occupancy and kind and quality within a reasonable time use; or after the loss. (3) The necessary amount actually spent to repair or replace the damaged part of the IX. LIBERALIZATION CLAUSE building for like occupancy and use. If we make a change that broadens your b. We will not be liable for any loss on a coverage under this edition of our policy, but Replacement Cost Coverage basis unless and does not require any additional premium, until actual repair or replacement of the then that change will automatically apply to damaged building or parts thereof, is com- your insurance as of the date we implement pleted. the change, provided that this implementa- c. If a building is rebuilt at a location tion date falls within 60 days before or dur- other than the described location, we will ing the policy term stated on the Declara- pay no more than it would have cost to re- tions Page. pair or rebuild at the described location, subject to all other terms of Replacement Cost X. WHAT LAW GOVERNS Loss Settlement. This policy and all disputes arising from the handling of any claim under the policy 3. Special Loss Settlement are governed exclusively by the flood insur- a. The following loss settlement conditions ance regulations issued by FEMA, the Na- apply to a residential condominium building tional Flood Insurance Act of 1968, as amend- that is: (1) a manufactured home or travel ed (42 U.S.C. 4001, et seq.), and Federal com- trailer, as defined in II.B.6.b. and c., and (2) mon law. at least 16 feet wide when fully assembled In Witness Whereof, we have signed this pol- and has at least 600 square feet within its pe- icy below and hereby enter into this Insur- rimeter walls when fully assembled. ance Agreement. b. If such a building is totally destroyed or JO ANN HOWARD, damaged to such an extent that, in our judg- Administrator, Federal Insurance ment, it is not economically feasible to re- Administration. pair, at least to its pre-damaged condition, [65 FR 60785, Oct. 12, 2000] we will, at our discretion, pay the least of the following amounts: APPENDIX A(4) TO PART 61 (1) The lesser of the replacement cost of the manufactured home or travel trailer or FEDERAL EMERGENCY MANAGEMENT AGENCY, 1.5 times the actual cash value; or FEDERAL INSURANCE ADMINISTRATION (2) The Building Limit of liability shown on your Declarations Page. Standard Flood Insurance Policy Endorsement to Dwelling Form c. If such a manufactured home or travel trailer is partially damaged and, in our judg- This endorsement replaces the provisions ment, it is economically feasible to repair it of VII.B.4 and VII.H.2, and also adds a new to its pre-damaged condition, we will settle paragraph, VII.H.5. This endorsement applies the loss according to the Replacement Cost in Monroe County and the Village of Loss Settlement conditions in V.2. above. Islamorada, Florida, This endorsement also

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applies to communities within Monroe Coun- VII.B.4. This policy is also void for reasons ty, Florida that incorporate on or after Jan- other than fraud, misrepresentation, or uary 1, 1999, agree to participate in the in- wrongful act. This policy is void from its inspection procedure, and become eligible for ception and has no legal force under the fol- the sale of flood insurance. lowing conditions: VII.B.4. This policy is also void for reasons a. If the property is located in a commu- other than fraud, misrepresentation, or nity that was not participating in the NFIP wrongful act. This policy is void from its in- on the policy’s inception date and did not ception and has no legal force under the fol- join or re-enter the program during the pol- lowing conditions: icy term and before the loss occurred. a. If the property is located in a commu- b. If you have not submitted a community nity that was not participating in the NFIP inspection report, referred to in ‘‘H. Policy on the policy’s inception date and did not Renewal’’ below, that was required in a no- join or re-enter the program during the pol- tice sent to you in conjunction with the icy term and before the loss occurred. community inspection procedure established b. If you have not submitted a community under 44 CFR 59.30. inspection report, referred to in ‘‘H. Policy c. If the property listed on the application Renewal’’ below, that was required in a nois not otherwise eligible for coverage under tice sent to you in conjunction with the the NFIP community inspection procedure established VII.H.2. We must receive the payment of under 44 CFR 59.30. the appropriate renewal premium and when c. If the property listed on the application applicable, the community inspection report is not otherwise eligible for coverage under referred to in H.5 below within 30 days of the the NFIP expiration date. VII.H.5. Your community has been ap- VII.H.2. We must receive the payment of proved by the Federal Emergency Manage- the appropriate renewal premium and when ment Agency to participate in an inspection applicable, the community inspection report procedure set forth in National Flood Insur- referred to in H.5 below within 30 days of the ance Program Regulations (44 CFR 59.30). expiration date. During the several years that this inspection VII.H.5. Your community has been ap- procedure will be in place, you may be re- proved by the Federal Emergency Manage- quired to obtain and submit an inspection re- ment Agency to participate in an inspection port from your community certifying wheth- procedure set forth in National Flood Insur- er or not your insured property is in compliance Program Regulations (44 CFR 59.30). ance with the community’s floodplain man- During the several years that this inspection agement ordinance before you can renew procedure will be in place, you may be re- your policy. You will be notified in writing quired to obtain and submit an inspection re- of this requirement approximately 6 months port from your community certifying wheth- before a renewal date and again at the time er or not your insured property is in compli- your renewal bill is sent. ance with the community’s floodplain management ordinance before you can renew [65 FR 60793, Oct. 12, 2000, as amended at 67 your policy. You will be notified in writing FR 10634, Mar. 8, 2002] of this requirement approximately 6 months before a renewal date and again at the time APPENDIX A(6) TO PART 61 your renewal bill is sent. FEDERAL EMERGENCY MANAGEMENT AGENCY, [65 FR 60793, Oct. 12, 2000, as amended at 67 FEDERAL INSURANCE ADMINISTRATION FR 10634, Mar. 8, 2002] Standard Flood Insurance Policy Endorsement APPENDIX A(5) TO PART 61 to Residential Condominium Building Associa- tion Policy FEDERAL EMERGENCY MANAGEMENT AGENCY, This endorsement replaces the provisions FEDERAL INSURANCE ADMINISTRATION of VIII.B.4 and VIII.H.2, and also adds a new Standard Flood Insurance Policy Endorsement paragraph, VIII.H.5. This endorsement ap- to General Property Form plies in Monroe County and the Village of Islamorada, Florida. This endorsement also This endorsement replaces the provisions applies to communities within Monroe Coun- of VII.B.4 and VII.H.2, and also adds a new ty, Florida and incorporate on or after Janu- paragraph, VII.H.5. This endorsement applies ary 1, 1999, agree to participate in the inspec- in Monroe County and the Village of tion procedure, and become eligible for the Islamorada, Florida. This endorsement also sale of flood insurance. applies to communities within Monroe Coun- VIII.B.4. This policy is also void for rea- ty, Florida that incorporate on or after Jan- sons other than fraud, misrepresentation, or uary 1, 1999, agree to participate in the in- wrongful act. This policy is void from its inspection procedure, and become eligible for ception and has no legal force under the fol- the sale of flood insurance. lowing conditions:

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a. If the property is located in a commu- APPENDIX B TO PART 62—NATIONAL FLOOD IN- nity that was not participating in the NFIP SURANCE PROGRAM on the policy’s inception date and did not AUTHORITY: 42 U.S.C. 4001 et seq,; Reorga- join or re-enter the program during the pol- nization Plan No. 3 of 1978, 43 FR 41943, 3 icy term and before the loss occurred. CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, b. If you have not submitted a community 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. inspection report, referred to in ‘‘H. Policy Renewal’’ below, that was required in a no- SOURCE: 43 FR 2573, Jan. 17, 1978, unless tice sent to you in conjunction with the otherwise noted. Redesignated at 44 FR 31177, community inspection procedure established May 31, 1979. under 44 CFR 59.30. c. If the property listed on the application is not otherwise eligible for coverage under Subpart A—Issuance of Policies the NFIP VIII.H.2. We must receive the payment of § 62.1 Purpose of part. the appropriate renewal premium and when The purpose of this part is to set applicable, the community inspection report forth the manner in which flood insur- referred to in H.5 below within 30 days of the ance under the Program is made avail- expiration date. able to the general public in those com- VIII.H.5. Your community has been approved by the Federal Emergency Manage- munities designated as eligible for the ment Agency to participate in an inspection sale of insurance under part 64 of this procedure set forth in National Flood Insur- subchapter, and to prescribe the gen- ance Program Regulations (44 CFR 59.30). eral method by which the Adminis- During the several years that this inspection trator exercises his/her responsibility procedure will be in place, you may be re- regarding the manner in which claims quired to obtain and submit an inspection re- for losses are paid. port from your community certifying whether or not your insured property is in compli- § 62.2 Definitions. ance with the community’s floodplain management ordinance before you can renew The definitions set forth in part 59 of your policy. You will be notified in writing this subchapter are applicable to this of this requirement approximately 6 months part. before a renewal date and again at the time your renewal bill is sent. § 62.3 Servicing agent. [65 FR 60794, Oct. 12, 2000, as amended at 67 (a) Pursuant to sections 1345 and 1346 FR 10634, Mar. 8, 2002] of the Act, the Administrator has entered into the Agreement with a serv- PART 62—SALE OF INSURANCE icing agent to authorize it to assist in AND ADJUSTMENT OF CLAIMS issuing flood insurance policies under the Program in communities des- Subpart A—Issuance of Policies ignated by the Administrator and to accept responsibility for delivery of Sec. policies and payment of claims for 62.1 Purpose of part. losses as prescribed by and at the dis- 62.2 Definitions. 62.3 Servicing agent. cretion of the Administrator. 62.4 Limitations on sale of policies. (b) National Con-Serv, Inc., whose of- 62.5 Premium refund. fices are located in Rockville, Mary- 62.6 Minimum commissions. land, is the servicing agent for the Fed- eral Insurance Administration. Subpart B—Claims Adjustment and (c) The servicing agent will arrange Judicial Review for the issuance of flood insurance to 62.21 Claims adjustment. any person qualifying for such cov- 62.22 Judicial review. erage under parts 61 and 64 of this subchapter who submits an application to Subpart C—Write-Your-Own (WYO) the servicing agent in accordance with Companies the terms and conditions of the contract between the Agency and the serv- 62.23 WYO Companies authorized. 62.24 WYO participation criteria. icing agent. APPENDIX A TO PART 62—FEDERAL EMER- [43 FR 2573, Jan. 17, 1978. Redesignated at 44 GENCY MANAGEMENT AGENCY, FEDERAL FR 31177, May 31, 1979, as amended at 48 FR INSURANCE ADMINISTRATION, FINANCIAL 44544, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; ASSISTANCE/SUBSIDY ARRANGEMENT 58 FR 62447, Nov. 26, 1993]

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§ 62.4 Limitations on sale of policies. cel a policy having a term of three (3) years, on an anniversary date, where (a) The servicing agent shall be the reason for the cancellation is that deemed to have agreed, as a condition a policy of flood insurance has been ob- of its contract that it shall not offer tained or is being obtained in substi- flood insurance under any authority or tution for the NFIP policy and the auspices in any amount within the NFIP obtains a written concurrence in maximum limits of coverage specified the cancellation from any mortgage of in § 61.6 of this subchapter, in any area which the NFIP has actual notice; or the Administrator designates in part 64 the policyholder has extinguishing the of this subchapter as eligible for the insured mortgage debt and is no longer sale of flood insurance under the Pro- required by the mortgagee to maintain gram, other than in accordance with the coverage. In such event, the pre- this part, and the Standard Flood In- mium refund shall be pro rata but with surance Policy. retention of the expense constant. (b) The agreement and all activities thereunder are subject to title VI of [43 FR 2573, Jan. 17, 1978. Redesignated at 44 the Civil Rights Act of 1964, 42 U.S.C. FR 31177, May 31, 1979, as amended at 49 FR 33658, Aug. 24, 1984; 53 FR 16279, May 6, 1988] 2000d, and to the applicable Federal regulations and requirements issued § 62.6 Minimum commissions. from time to time pursuant thereto. No (a) The earned commission which person shall be excluded from partici- shall be paid to any property or cas- pation in, denied the benefits of, or ualty insurance agent or broker duly subjected to discrimination under the licensed by a state insurance regu- Program, on the ground of race, color, latory authority, with respect to each sex, creed or national origin. Any com- policy or renewal the agent duly pro- plaint or information concerning the cures on behalf of the insured, in con- existence of any such unlawful dis- nection with policies of flood insurance crimination in any matter within the placed with the NFIP at the offices of purview of this part should be referred its servicing agent, but not with re- to the Administrator. spect to policies of flood insurance [43 FR 2573, Jan. 17, 1978. Redesignated at 44 issued pursuant to Subpart C of this FR 31177, May 31, 1979, as amended at 48 FR part, shall not be less than $10 and is 44544, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] computed as follows: (1) In the case of a new or renewal § 62.5 Premium refund. policy, the following commissions shall A Standard Flood Insurance Policy- apply based on the total premiums paid holder whose property has been deter- for the policy term: mined not to be in a special hazard Commis- area after the map revision or a Letter Premium amount sions (per- of Map Amendment under part 70 of cent) this subchapter may cancel the policy First $2,000 of Premium ...... 15 within the current policy year provided Excess of $2,000 ...... 5 (a) he was required to purchase or to maintain flood insurance coverage, or (2) In the case of mid-term increases both, as a condition for financial as- in amounts of insurance added by en- sistance, and (b) his property was lo- dorsements, the following commissions cated in an identified special hazard shall apply based on the total pre- area as represented on an effective miums paid for the increased amounts FHBM or FIRM when the financial as- of insurance: sistance was provided. If no claim Commis- under the policy has been paid or is Premium amount sions (per- pending, the full premium shall be recent) funded for the current policy year, and First $2,000 of Premium ...... 15 for an additional policy year where the Excess of $2,000 ...... 5 insured had been required to renew the policy during the period when a revised (b) Any refunds of premiums author- map was being reprinted. A Standard ized under this subchapter shall not af- Flood Insurance Policyholder may can- fect a previously earned commission;

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and no agent shall be required to re- District Court for the district in which turn that earned commission, unless the insured property or the major por- the refund is made to establish a com- tion thereof shall have been situated, mon policy term anniversary date with without regard to the amount in con- other insurance providing coverage troversy. against loss by other perils in which (b) Service of process for all judicial case a return of commission will be re- proceedings where a claimant is suing quired by the agent on a pro rata basis. Director pursuant to 42 U.S.C. 4071 In such cases, the policy shall be imme- shall be made upon the appropriate diately rewritten for a new term with United States Attorney, the Attorney the same amount(s) of coverage and General of the United States, and the with premium calculated at the then Federal Insurance Administrator of the current rate and, as to return pre- Federal Emergency Management Agen- mium, returned, pro rata, to the in- cy. sured based on the former policy’s premium rate. [43 FR 2573, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, as amended at 47 FR [46 FR 13515, Feb. 23, 1981, as amended at 53 43061 Sept. 30, 1982; 49 FR 33879, Aug. 27, 1984] FR 15221, Apr. 28, 1988; 57 FR 19541, May 7, 1992] Subpart C—Write-Your-Own (WYO) Companies Subpart B—Claims Adjustment and Judicial Review § 62.23 WYO Companies authorized. (a) Pursuant to section 1345 of the § 62.21 Claims adjustment. Act, the Administrator may enter into (a) In accordance with the Agree- arrangements with individual private ment, the servicing agent shall arrange sector property insurance companies or for the prompt adjustment and settle- other insurers, such as public entity ment and payment of all claims arising risk sharing organizations. Under these from policies of insurance issued under arrangements, such companies or other the program. Investigation of such insurers may offer flood insurance cov- claims may be made through the facili- erage under the program to eligible ap- ties of its subcontractors or insurance plicants. Such WYO companies may adjustment organizations, to the ex- offer flood coverage to policyholders tent required and appropriate for the insured by them under their own prop- expeditious processing of such claims. erty business lines of insurance, pursu- (b) All adjustment of losses and set- ant to their customary business prac- tlements of claims shall be made in ac- tices, including their usual arrange- cordance with the terms and conditions ments with agents and producers. WYO of the policy and parts 61 and 62 of this companies may sell flood insurance subchapter. coverage in any State in which the WYO company is authorized to engage § 62.22 Judicial review. in the business of property insurance. (a) Upon the disallowance by the Fed- Other WYO insurers may offer flood in- eral Insurance Administration or the surance coverage to their pool mem- servicing agent of any claim on bers insured by them under their own grounds other than failure to file a property business lines of coverage, proof of loss, or upon the refusal of the pursuant to their customary business claimant to accept the amount allowed practices. These other WYO insurers upon any such claim, after appraisal may provide flood coverage in any pursuant to policy provisions, the State that has authorized the other in- claimant within one year after the date surer to provide property coverage to of mailing by the Federal Insurance its members. Arrangements entered Administration or the servicing agent into by WYO Companies or other insur- of the notice of disallowance or partial ers under this subpart must be in the disallowance of the claim may, pursu- form and substance of the standard ar- ant to 42 U.S.C. 4072, institute an ac- rangement, titled ‘‘Financial Assist- tion on such claim against the Federal ance/Subsidy Arrangement,’’ a copy of Insurance Administrator in the U.S. which is included in appendix A of this

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part and made a part of these regula- cluded in appendix B of this part and tions. made a part of these regulations. (b) Any duly authorized insurer so (g) WYO Companies shall not be engaged in the Program shall be a WYO agents of the Federal Government and Company. (The term ‘‘WYO Company’’ are solely responsible for their obliga- shall include the following kinds of in- tions to their insureds under any flood surers: Public entity risk-sharing orga- insurance policies issued under agree- nizations, an association of local gov- ments entered into with the Adminis- ernments, a State association of polit- trator. ical subdivisions, a State-sponsored (h) To facilitate the underwriting of municipal league, and other intergov- flood insurance coverage by WYO Com- ernmental risk-sharing pool for cov- panies, the following procedures will be ering public entity structures.) used by WYO Companies: (c) A WYO Company is authorized to (1) To expedite business growth, the arrange for the issuance of flood insur- WYO Company will encourage its ance in any amount within the max- present property insurance policy- imum limits of coverage specified in holders to purchase flood insurance § 61.6 of this subchapter, as Insurer, to through the NFIP WYO Program. any person qualifying for such cov- (2) To conform its underwriting prac- erage under parts 61 and 64 of this sub- tices to the underwriting rules and chapter who submits an application to rates in effect as to the NFIP, the WYO the WYO Company; coverage shall be Company will establish procedures to issued under the Standard Flood Insur- carry out the NFIP rating system and ance Policy. provide its policyholders with the same (d) A WYO Company issuing flood in- coverage as is afforded under the NFIP. surance coverage shall arrange for the adjustment, settlement, payment and (3) The WYO Company may follow its defense of all claims arising from poli- customary billing practices to meet cies of flood insurance it issues under the Federal rules on the presentment the Program, based upon the terms and of premium and net premium deposits conditions of the Standard Flood Insur- to a Letter of Credit bank account au- ance Policy. thorized by the Administrator and re- (e) In carrying out its functions duction of coverage when an under- under this subpart, a WYO Company payment is discovered. shall use its own customary standards, (4) The WYO Company is expected to staff and independent contractor re- meet the recording and reporting resources, as it would in the ordinary and quirements of the WYO Transaction necessary conduct of its own business Record Reporting and Processing Plan. affairs, subject to the Act and regula- Transactions reported by the WYO tions prescribed by the Administrator Company under the WYO Transaction under the Act. Record Reporting and Processing Plan (f) To facilitate the marketing of will be analyzed by the NFIP Bureau & flood insurance coverage under the Statistical Agent. A monthly report Program to policyholders of WYO Com- will be submitted to the WYO Company panies, the Administrator will enter and the FIA. The analysis will cover into arrangements with such compa- the timeliness of WYO Company sub- nies whereby the Federal Government missions, the disposition of trans- will be a guarantor in which the pri- actions that have not passed systems mary relationship between the WYO edits and the reconciliation of the to- Company and the Federal Government tals generated from transaction reports will be one of a fiduciary nature, i.e., with those submitted on the WYO Com- to assure that any taxpayer funds are pany’s reconciliation reports. accounted for and appropriately ex- (5) If a WYO Company rejects an ap- pended. In furtherance of this end, the plication from an agent or a producer, Administrator has established ‘‘A Plan the agent or producer shall be notified to Maintain Financial Control for Busi- so that the business can be placed ness Written Under the Write Your through the NFIP Servicing Agent, or Own Program’’, a copy of which is in- another WYO Company.

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(6) Flood insurance coverage will be (4) The normal catastrophe claims issued by the WYO Company on a sepa- procedure currently operated by a WYO rate policy form and will not be added, Company should be implemented in the by endorsement, to the Company’s event of a claim catastrophe situation. other property insurance forms. Flood claims will be handled along (7) Premium payment plans can be with other catastrophe claims. offered by the WYO Company so long (5) It will be the WYO Company’s reas the net premium depository require- sponsibility to try to detect fraud (as it ments specified under the NFIP/WYO does in the case of property insurance) Program accounting procedures are and coordinate its findings with FIA. met. A cancellation by the WYO Com- (6) Pursuant to the Arrangement, the pany for non-payment of premium will responsibility for defending claims will not produce a pro rata return of the net be upon the Write Your Own Company premium deposit to the WYO Company. and defense costs will be part of the (8) NFIP business will not be assumed unallocated or allocated claim expense by the WYO Companies at any time allowance, depending on whether a other than at renewal time, at which staff counsel or an outside attorney time the insurance producer may sub- handles the defense of the matter. mit the business to the WYO Company Claims in litigation will be reported by as new business. However, it is permis- WYO Companies to FIA upon joinder of sible to cancel and rewrite flood poli- issue and FIA may inquire and be ad- cies to obtain concurrent expiration vised of the disposition of such litiga- dates with other policies covering the tion. property. (7) The claim reserving procedures of (i) To facilitate the adjustment of the individual WYO Company can be flood insurance claims by WYO Compa- used. nies, the following procedures will be (8) Regarding the handling of sub- used by WYO Companies. rogation, if a WYO Company prefers to (1) Under the terms of the Arrange- forego pursuit of subrogation recovery, ment set forth at appendix A of this it may do so by referring the matter, part, WYO Companies will adjust with a complete copy of the claim file, claims in accordance with general to FIA. Subrogation initiatives may be Company standards, guided by NFIP truncated at any time before suit is Claims manuals. The Arrangement also commenced (after commencing an ac- provides that claim adjustments shall tion, special arrangement must be binding upon the FIA. For example, bemade). FIA, after consultation with the entire responsibility for providing FEMA’s Office of the General Counsel a proper adjustment for both combined (OGC), will forward the cause of action wind and water claims and flood-alone to OGC or to the NFIP Bureau and Sta- claims is the responsibility of the WYO tistical Agent for prosecution. Any Company. The responsibility for pro- funds received will be deposited, less viding a proper adjustment for com- expenses, in the National Flood Insur- bined wind and water claims is to be ance Fund. conducted by listing in concert with (9) Special allocated loss adjustment the Single Adjuster provisions listed in expenses will include such items as: appendix A. nonstaff attorney fees, engineering fees (2) The WYO Company may use its and special investigation fees over and staff adjusters, independent adjusters, above normal adjustment practices. or both. It is important that the Com- (10) The customary content of claim pany’s Claims Department verifies the files will include coverage verification, correctness of the coverage interpreta- normal adjuster investigations, includ- tions and reasonableness of the paying statements where necessary, police ments recommended by the adjusters. reports, building reports and investiga- (3) An established loss adjustment tions, damage verification and other Fee Schedule is part of the Arrange- documentation relevant to the adjustment and cannot be changed during an ment of claims under the NFIP’s and Arrangement year. This is the expense the WYO Company’s traditional claim allowance to cover costs of independent adjustment practices and procedures. or WYO Company adjusters. The WYO Company’s claim examiners

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and managers will supervise the adjust- and a monthly report will be submitted ment of flood insurance claims by staff to the WYO Company and the FIA. The and independent claims adjusters. analysis will cover the timeliness of (11) The WYO Company will extend the WYO Company submissions, the reasonable cooperation to FEMA’s Of- disposition of transactions which do fice of the General Counsel on matters not pass systems edits and the rec- pertaining to litigation and subroga- onciliation of the totals generated tion, under paragraph (i)(8) of this sec- from transaction reports with those tion. submitted on WYO Company reconcili- (j) To facilitate establishment of fi- ation reports. nancial controls under the WYO Pro- (4) Cooperate with FEMA’s Office of gram, the WYO Company will: Financial Management on Letter of (1) Have a biennial audit of the flood Credit matters. insurance financial statements con- (5) Cooperate with FIA in the imple- ducted by an independent Certified mentation of a claims reinspection pro- Public Accountant (CPA) firm at the gram. Company’s expense to ensure that the (6) Cooperate with FIA in the financial data reported to us accu- verification of risk rating information. rately represents the flood insurance (7) Cooperate with FEMA’s Office of activities of the Company. The CPA the Inspector General on matters per- firm must conduct its audits in accord- taining to fraud. ance with the generally accepted audit- (k) To facilitate the operation of the ing standards (GAAS) and Government WYO Program and in order that a WYO Auditing Standards issued by the Company can use its own customary Comptroller General of the United standards, staff and independent con- States (commonly known as ‘‘yellow tractor resources, as it would in the or- book’’ requirements). The Company dinary and necessary conduct of its must file with us (the Federal Insur- own business affairs, subject to the ance Administration) a report of the Act, the Administrator, for good cause CPA firm’s detailed biennial audit, shown, may grant exceptions to and and, after our review of the audit re- waivers of the regulations contained in port, we will convey our determination this title relative to the administra- to the Standards Committee. tion of the NFIP. (2) Participate in a WYO Company/ (l)(1) WYO Companies may, on a vol- FIA Operation review. We will conduct untary basis, elect to participate in the a review of the WYO Company’s flood Mortgage Portfolio Protection Pro- insurance claims, underwriting, cus- gram (MPPP), under which they can tomer service, marketing, and litiga- offer, as a last resort, flood insurance tion activities at least once every three at special high rates, sufficient to re- (3) years. As part of these reviews, we cover the full cost of this program in will reconcile specific files with a list- recognition of the uncertainty as to ing of transactions submitted by the the degree of risk a given building pre- Company under the Transaction sents due to the limited underwriting Record Reporting and Processing data required, to properties in a lend- (TRPP) Plan (Part 5). We will file a re- ing institution’s mortgage portfolio to port of the Operation Review with the achieve compliance with the flood in- Standards Committee. surance purchase requirements of the (3) Meet the recording and reporting Flood Disaster Protection Act of 1973. requirements of the WYO Transaction Flood insurance policies under the Record Reporting and Processing Plan MPPP may only be issued for those and the WYO Accounting Procedures properties that: Manual. Transactions reported to the (i) Are determined to be located with- National Flood Insurance Program’s in special flood hazard areas of commu- (NFIP’s) Bureau and Statistical Agent nities that are participating in the by the WYO Company under the WYO NFIP, and Transaction Record Reporting and (ii) Are not covered by a flood insur- Processing Plan and the WYO Account- ance policy even after a required series ing Procedures Manual will be analyzed of notices have been given to the prop- by the Bureau and Statistical Agent erty owner (mortgagor) by the lending

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institution of the requirement for obvious notice and provide essentially taining and maintaining such coverage, the same information. but the mortgagor has failed to re- (6) The final notification letter must: spond. (i) Enclose a copy of the flood insur- (2) WYO Companies participating in ance policy purchased under the MPPP the MPPP must provide a detailed im- on the mortgagor’s (insured’s) behalf, plementation package to any lending together with the Declarations Page, institution that, on a voluntary basis, (ii) Advise that the policy was pur- chooses to participate in the MPPP to chased because of the failure to re- ensure the lending institution has full spond to the previous notices, and knowledge of the criteria in that pro- (iii) Remind the insured that similar gram and must obtain a signed receipt coverage may be available at signifi- for that package from the lending in- cantly lower cost and advise that the stitution. Participating WYO Compa- policy can be cancelled at any time nies must also maintain evidence of during the policy year and a pro rata compliance with paragraph (l)(3) of this refund provided for the unearned por- section for review during the audits tion of the premium in the event the and reviews required by the WYO Fi- insured purchases another policy that is acceptable to satisfy the require- nancial Control Plan contained in ap- ments of the 1973 Act. pendix B of this part. (3) The mortgagor must be protected (Approved by the Office of Management and against the lending institution’s arbi- Budget under OMB control number 3067– trary placing of flood insurance for 0229.) which the mortgagor will be billed by [61 FR 51219, Oct. 1, 1996, as amended at 64 FR being sent three notification letters as 56176, Oct. 18, 1999; 67 FR 13549, Mar. 22, 2002] described in paragraphs (l)(4) through (6) of this section. § 62.24 WYO participation criteria. (4) The initial notification letter New companies or organizations eli- must: gible for the pilot project we describe (i) State the requirements of the in paragraph (b) of this section that Flood Disaster Protection Act of 1973, seek to participate in the WYO pro- as amended; gram, as well as former WYO compa- (ii) Announce the determination that nies seeking to return to the WYO pro- the mortgagor’s property is in an iden- gram, must meet standards for finan- tified special flood hazard area as de- cial capability and stability for statis- lineated on the appropriate FEMA tical and financial reporting and for map, necessitating flood insurance cov- commitment to program objectives. (a) To demonstrate the ability to erage for the duration of the loan; meet the financial requirements, a pri- (iii) Describe the procedure to follow vate insurance company wishing to should the mortgagor wish to challenge enter or reenter the WYO program the determination; must: (iv) Request evidence of a valid flood (1) Be a licensed property insurance insurance policy or, if there is none, company; encourage the mortgagor to obtain a (2) Have a five (5) year history of Standard Flood Insurance Policy writing property insurance; (SFIP) promptly from a local insurance (3) Disclose any legal proceedings, agent (or WYO Company); suspensions, judgments, settlements, (v) Advise that the premium for a or agreements reached with any State MPPP policy is significantly higher insurance department, State attorney than a conventional SFIP policy and general, State corporation commission, advise as to the option for obtaining or the Federal Government during the less costly flood insurance; and immediately prior five (5) years regard- (vi) Advise that a MPPP policy will ing the company’s business practices; be purchased by the lender if evidence (4) Submit its most recent National of flood insurance coverage is not re- Association of Insurance Commis- ceived by a date certain. sioners (NAIC) annual statement; (5) The second notification letter (5) Submit information, as data be- must remind the mortgagor of the pre- come available, to indicate that the

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company meets or exceeds NAIC stand- test, a second test will be run, which ards for risk-based capital and surplus; the applicant must pass to participate and in the Program. (6) Submit its last State or regional (d) To satisfy the requirement for audit, which should contain no mate- commitment to Program goals, includ- rial negative findings. ing marketing of flood insurance poli- (b) To demonstrate the ability to cies, the applicant will submit infor- meet the financial requirements, a mation concerning its plans for the public entity risk-sharing organiza- WYO Program including plans for the tion, an association of local govern- training and support of producers and ments, a State association of political staff, marketing plans and sales tar- subdivisions, a State-sponsored munic- gets, and claims handling and disaster ipal league, and any other intergovern- response plans. Applicants must also mental risk-sharing pool for covering identify those aspects of their planned public entity structures, wishing to flood insurance operations to be per- enter the WYO program, which will end formed by another organization, man- September 30, 2004, must: aging agent, another WYO Company, a (1) Have authority by a State to pro- WYO vendor, a service bureau or re- vide property coverage to its members; lated organization. Applicants will also (2) Have a five (5) year history of name, in addition to a Principal Coor- writing property coverage; dinator, a corporate officer point of (3) Disclose any legal proceedings, contact—an individual, e.g., at the suspensions, judgments, settlements, level of Senior Executive Vice Presi- or agreements reached with any State dent, who reports directly to the Chief insurance department, State attorney Executive Officer or the Chief Oper- general, State corporation commission, ating Officer. Each applicant shall fur- or the Federal Government during the nish the latest available information immediately prior five (5) years regard- regarding the number of its fire, allied ing the other insurer’s business prac- lines, farm-owners multiple peril, tices; and homeowners multiple peril, and com- (4) Submit its most recent two an- mercial multiple peril policies or cov- nual audits from an independent ac- erage documents in force, by line. A counting firm performed in compliance private insurance company applying with generally accepted accounting for participation in the WYO program principles that show no material nega- shall also furnish its Best’s Financial tive findings; and submit, as data be- Size Category for the purpose of set- come available, information to indi- ting marketing goals. cate that the other insurer meets or [67 FR 13550, Mar. 22, 2002] exceeds standards comparable to those of the NAIC for risk-based capital and APPENDIX A TO PART 62—FEDERAL surplus. EMERGENCY MANAGEMENT AGENCY, (c) An applicant for entry or reentry FEDERAL INSURANCE ADMINISTRA- in the WYO program must also pass a TION, FINANCIAL ASSISTANCE/SUB- test to determine the applicant’s abil- SIDY ARRANGEMENT ity to process flood insurance and meet the Transaction Record Reporting and Purpose: To assist the company in underwriting flood insurance using the Standard Processing (TRRP) Plan requirements Flood Insurance Policy. of the WYO Financial Control Plan. Accounting Data: Pursuant to Section 1310 Unless the test requirement is waived, of the Act, a Letter of Credit shall be issued e.g., where an already qualified per- for payment as provided for herein from the former will fulfill the applicant’s re- National Flood Insurance Fund. porting requirements, the applicant Effective Date: October 1, 2002. must prepare and submit test output Issued By: Federal Emergency Management Agency, Federal Insurance Administration, monthly tape(s) and monthly financial Washington, DC 20472. statements and reconciliations for processing by the NFIP Bureau and ARTICLE I—FINDINGS, PURPOSE, AND Statistical Agent contractor. For test AUTHORITY purposes, no error tolerance will be al- Whereas, the Congress in its ‘‘Finding and lowed. If the applicant fails the initial Declaration of Purpose’’ in the National

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Flood Insurance Act of 1968, as amended, c. Policy Issuance (‘‘the Act’’) recognized the benefit of having d. Policy Endorsements the National Flood Insurance Program (the e. Policy Cancellations ‘‘Program’’ or ‘‘NFIP’’) ‘‘carried out to the f. Policy Correspondence maximum extent practicable by the private g. Payment of Agents’ Commissions insurance industry’’; and Whereas, the Federal Insurance Adminis- 2. Claims Processing. All claims processing tration (FIA) recognizes this Arrangement as must be processed in accordance with the coming under the provisions of Section 1345 processing of all the companies’ insurance of the Act; and policies and with the Financial Control Plan. Whereas, the goal of the FIA is to develop Companies will also be required to comply a program with the insurance industry with FIA Policy Issuances and other guid- where, overtime, some risk-bearing role for ance authorized by FIA or the Federal Emer- the industry will evolve as intended by the gency Management Agency (‘‘FEMA’’). Congress (Section 1304 of the Act); and 3. Reports. Whereas, the insurer (hereinafter the a. Monthly Financial Reporting and Sta- ‘‘Company’’) under this Arrangement shall tistical Transaction reporting requirements. charge rates established by the FIA; and All monthly financial reporting and statis- Whereas, this Arrangement will subsidize tical transaction reporting shall be in ac- all flood policy losses by the Company; and cordance with the requirements of the NFIP Whereas, this Financial Assistance/Subsidy Transaction Record Reporting and Proc- Arrangement has been developed to enable essing Plan for the Company Program and any interested qualified insurer to write the Financial Control Plan for business writ- flood insurance under its own name; and ten under the WYO (Write Your Own) Pro- Whereas, one of the primary objectives of gram. 44 CFR part 62, appendix B. These data the Program is to provide coverage to the shall be validated/edited/audited in detail maximum number of structures at risk and and shall be compared and balanced against because the insurance industry has mar- Company reports. keting access through its existing facilities b. Monthly financial reporting procedure not directly available to the FIA, it has been shall be in accordance with the WYO Ac- concluded that coverage will be extended to counting Procedures. those who would not otherwise be insured B. Time Standards. Time will be measured under the Program; and from the date of receipt through the date Whereas, flood insurance policies issued mailed out. All dates referenced are working subject to this Arrangement shall be only days, not calendar days. In addition to the that insurance written by the Company in standards set forth below, all functions per- its own name under prescribed policy condi- formed by the company shall be in accord- tions and pursuant to this Arrangement and ance with the highest reasonably attainable the Act; and quality standards generally utilized in the Whereas, over time, the Program is de- insurance and data processing field. Con- signed to increase industry participation, tinual failure to meet these requirements and, accordingly, reduce or eliminate Gov- may result in limitations on the company’s ernment as the principal vehicle for delivering flood insurance to the public; and authority to write new business or the re- Whereas, the direct beneficiaries of this moval of the Company from the program. Arrangement will be those Company policy- Applicable time standards are: holders and applicants for flood insurance 1. Application Processing—15 days (note: if who otherwise would not be covered against the policy cannot be mailed due to insuffi- the peril of flood. cient or erroneous information or insuffi- Now, therefore, the parties hereto mutu- cient funds, a request for correction or added ally undertake the following: moneys shall be mailed within 10 days); 2. Renewal Processing—7 days. ARTICLE II—UNDERTAKING OF THE COMPANY 3. Endorsement Processing—15 days. A. Eligibility Requirements for Participa- 4. Cancellation Processing—15 days. tion in the NFIP: 5. Claims Draft Processing—7 days from 1. Policy Administration. All fund receipt, completion of file examination. recording, control, timely deposit require- 6. Claims Adjustment—45 days average ments, and disbursement in connection with from the receipt of Notice of Loss (or equiva- all Policy Administration and any other re- lent) through completion of examination. lated activities or correspondences, must C. Single Adjuster Program. To ensure the meet all requirements of the Financial Con- maximum responsiveness to the NFIP policy trol Plan. The Company shall be responsible holders following a catastrophic event, e.g., for: a hurricane, involving insured wind and flood a. Compliance with the Community Eligi- damage to policyholders, the Company shall bility/Rating Criteria agree to the adjustment of the combined b. Making Policyholder Eligibility Deter- flood and wind losses utilizing one adjuster minations under an NFIP-approved Single Adjuster

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Program using procedures issued by the Ad- the marketing guidelines established by the ministrator. The Single Adjuster procedure Federal Insurance Administration. shall be followed in the following cases: 1. Where the flood and wind coverage is ARTICLE III—LOSS COSTS, EXPENSES, EX- provided by the Company; PENSE REIMBURSEMENT, AND PREMIUM RE- 2. Where the flood coverage is provided by FUNDS the Company and the wind coverage is pro- A. The Company shall be liable for oper- vided by a participating State Property In- ating, administrative and production ex- surance Plan, Windpool Association, Beach penses, including any State premium taxes, Plan, Joint Underwriting Association, FAIR dividends, agents’ commissions or any other Plan, or similar property insurance mecha- expense of whatever nature incurred by the nism; and Company in the performance of its obliga- 3. Where the flood coverage is provided by tions under this Arrangement but excluding the Company and the wind coverage is pro- other taxes or fees, such as surcharges on vided by another property insurer and the flood insurance premium and guaranty fund State Insurance Regulator has determined assessments. that such property insurer shall, in the interest of consumers, facilitate the adjust- B. The Company may withhold as oper- ment of its wind loss by the adjuster engaged ating and administrative expenses, other to adjust the flood loss of the Company. than agents’ or brokers’ commissions, an D. Policy Issuance. amount from the Company’s written premium on the policies covered by this Ar- 1. The flood insurance subject to this Ar- rangement shall be only that insurance writ- rangement in reimbursement of all of the ten by the Company in its own name pursu- Company’s marketing, operating, and admin- ant to the Act. istrative expenses, except for allocated and 2. The Company shall issue policies under unallocated loss adjustment expenses de- the regulations prescribed by the Adminis- scribed in C. of this article. This amount will trator in accordance with the Act. equal the sum of the average of industry ex- 3. All such policies of insurance shall con- pense ratios for ‘‘Other Acq.’’, ‘‘Gen. Exp.’’, form to the regulations prescribed by the Ad- and ‘‘Taxes’’ calculated by aggregating pre- ministrator pursuant to the Act, and be miums and expense amounts for each of five issued on a form approved by the Adminis- property coverages using direct premium and trator. expense information to derive weighted aver- 4. All policies shall be issued in consider- age expense ratios. For this purpose, we (the ation of such premiums and upon such terms Federal Insurance Administration) will use and conditions and in such States or areas or data for the property/casualty industry pub- subdivisions thereof as may be designated by lished, as of March 15 of the prior Arrange- the Administrator and only where the Com- ment year, in Part III of the Insurance Ex- pany is licensed by State law to engage in pense Exhibit in A.M. Best Company’s Aggre- the property insurance business. gates and Averages for the following five 5. The Administrator may require the property coverages: Fire, Allied Lines, Company to discontinue issuing policies sub- Farmowners Multiple Peril, Homeowners ject to this Arrangement immediately in the Multiple Peril, and Commercial Multiple event Congressional authorization or appro- Peril (non-liability portion). In addition, this priation for the National Flood Insurance amount will be increased by one percentage Program is withdrawn. point to reimburse expenses beyond regular E. The Company shall separate Federal property/casualty expenses. flood insurance funds from all other Com- The Company may retain fifteen percent pany accounts, at a bank or banks of its (15%) of the Company’s written premium on choosing for the collection, retention and the policies covered by this Arrangement as disbursement of Federal funds relating to its the commission allowance to meet commis- obligation under this Arrangement, less the sions or salaries of their insurance agents, Company’s expenses as set forth in Article brokers, or other entities producing qualified III, and the operation of the Letter of Credit flood insurance applications and other re- established pursuant to Article IV. All funds lated expenses. not required to meet current expenditures The amount of expense allowance retained shall be remitted to the United States Treas- by the Company may increase a maximum of ury, in accordance with the provisions of the two percentage points, depending on the ex- WYO Accounting Procedures Manual. tent to which the Company meets the mar- F. The Company shall investigate, adjust, keting goals for the Arrangement year con- settle and defend all claims or losses arising tained in marketing guidelines established from policies issued under this Arrangement. pursuant to Article II.G. We will pay the Payment of flood insurance claims by the company the amount of any increase after Company shall be binding upon the FIA. the end of the Arrangement year. G. The Company shall market flood insur- The Company, with the consent of the Ad- ance policies in a manner consistent with ministrator as to terms and costs, may use

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the services of a national rating organiza- FIA and the FEMA OGC have not been noti- tion, licensed under state law, to help us un- fied in a timely manner. dertake and carry out such studies and in- 4. Limitation on Litigation Costs. Fol- vestigations on a community or individual lowing receipt of notice of such claim, the risk basis, and to determine equitable and Office of General Counsel (OGC), FEMA, accurate estimates of flood insurance risk shall review the information submitted. If it premium rates as authorized under the Na- is determined that the claim is grounded in tional Flood Insurance Act of 1968, as amend- actions by the Company that are outside the ed. We will reimburse the Company for the scope of this Arrangement, the National charges or fees for such services under the Flood Insurance Act, and 44 CFR chapter 1, provisions of the WYO Accounting Proce- subchapter B, and/or involve issues of in- dures Manual. surer/agent negligence as discussed in Arti- C. Loss Adjustment Expenses shall be re- cle IX of this Arrangement, the OGC shall imbursed as follows: make a recommendation to the Adminis- 1. Unallocated loss adjustment shall be an trator as to whether the claim is grounded in expense reimbursement of 3.3% of the in- actions by the Company that are signifi- curred loss (except that it does not include cantly outside the scope of this Arrange- ‘‘incurred but not reported’’). ment. In the event the Administrator deter- 2. Allocated loss adjustment expense shall mines that the claim is grounded in actions be reimbursed to the Company pursuant to a by the Company that are significantly out- ‘‘Fee Schedule’’ coordinated with the Com- side the scope of this Arrangement, the Com- pany and provided by the Administrator. pany will be notified, in writing, within thir- 3. Special allocated loss expenses shall be ty (30) days of the Administrator’s decision, reimbursed to the Company in accordance if the decision is that any award or judgment with guidelines issued by the Administrator. for damages arising out of such actions will D. Loss Payments. not be recognized under Article III of this 1. Loss payments under policies of flood in- Arrangement as a reimbursable loss cost, ex- surance shall be made by the Company from pense or expense reimbursement. In the funds retained in the bank account(s) estab- event that the Company wishes to petition lished under Article II, Section E and, if such for reconsideration the determination that it funds are depleted, from funds derived by will not be reimbursed for the award or judg- drawing against the Letter of Credit estab- ment made under the above circumstances, lished pursuant to Article IV. it may do so by mailing, within thirty days 2. Loss payments include payments as a re- of the notice declining to recognize any such sult of litigation which arises under the scope of this Arrangement, and the Authori- award or judgment as reimbursable under ties set forth above. All such loss payments Article III, a written petition to the Chair- must meet the documentation requirements man of the WYO Standards Committee es- of the Financial Control Plan and of this Ar- tablished under the Financial Control Plan. rangement. The Company will be reimbursed The WYO Standards Committee will, then, for errors and omissions only as set forth at consider the petition at its next regularly Article IX of this Arrangement. scheduled meeting or at a special meeting 3. Notification of claims in litigation called for that purpose by the Chairman and against the company. To ensure reimburse- issue a written recommendation to the Ad- ment of costs expended to defend a claim in ministrator within thirty days of the meet- litigation against the Company, the Com- ing. The Administrator’s final determination pany must promptly notify FIA. will be made, in writing, to the Company Prompt notice, in duplicate, of any such within thirty days of the recommendation claim in litigation within the scope of this made by the WYO Standards Committee. section (D) shall be sent to the FIA along E. Premium refunds to applicants and pol- with a copy of any material pertinent to the icyholders required pursuant to rules con- claim in litigation. FIA shall forward one tained in the National Flood Insurance Pro- copy of all such claims to the Associate Gen- gram (NFIP) ‘‘Flood Insurance Manual’’ eral Counsel for Litigation, FEMA OGC, to shall be made by the Company from Federal ensure that the FEMA OGC is aware of all flood insurance funds referred to in Article pending litigation. Following the initial no- II, Section E, and, if such funds are depleted, tice of claims in litigation, to ensure expedi- from funds derived by drawing against the tious reimbursement, the company must Letter of Credit established pursuant to Ar- submit all pertinent material and billing ticle IV. documentation as it becomes available. ARTICLE IV—UNDERTAKINGS OF THE Within 60 days of the receipt of a notice of GOVERNMENT claim in litigation by the Company, the Company must submit an initial case anal- A. Letter(s) of Credit shall be established ysis and legal fee estimate for billing sup- by the Federal Emergency Management port. Failure to meet these notice require- Agency (FEMA) against which the Company ments may result in the Administrator’s de- may withdraw funds daily, if needed, pursu- cision not to reimburse expenses for which ant to prescribed procedures implemented by

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FEMA. The amounts of the authorizations ticipation in the Program, including certain will be increased as necessary to meet the data, as determined by FIA, in a standard obligations of the Company under Article III, format and medium; and Sections C, D, and E. Request for funds shall 2. A plan for the orderly transfer to the be made only when net premium income has FIA of any continuing responsibilities in ad- been depleted. The timing and amount of ministering the policies issued by the Com- cash advances shall be as close as is adminis- pany under the Program including provisions tratively feasible to the actual disburse- for coordination assistance; and ments by the recipient organization for allowable Letter of Credit expenses. 3. All claims and policy files, including Request for payment on Letters of Credit those pertaining to receipts and disburse- shall not ordinarily be drawn more fre- ments that have occurred during the life of quently than daily nor in amounts less than each policy. In the event of a transfer of the $5,000, and in no case more than $5,000,000 un- services provided, the Company shall provide less so stated on the Letter of Credit. This the FIA with a report showing, on a policy Letter of Credit may be drawn by the Com- basis, any amounts due from or payable to pany for any of the following reasons: insureds, agents, brokers, and others as of 1. Payment of claim as described in Article the transition date. III, Section D; D. Financial assistance under this Ar- 2. Refunds to applicants and policyholders rangement may be canceled by the FIA in its for insurance premium overpayment, or if entirety upon 30 days written notice to the the application for insurance is rejected or Company by certified mail stating one of the when cancellation or endorsement of a pol- following reasons for such cancellation: (1) icy results in a premium refund as described in Article III, Section E; and Fraud or misrepresentation by the Company 3. Allocated and unallocated Loss Adjust- subsequent to the inception of the contract, ment Expenses as described in Article III, or (2) nonpayment to the FIA of any amount Section C. due the FIA. Under these very specific condi- B. The FIA shall provide technical assist- tions, the FIA may require the transfer of ance to the Company as follows: data as shown in Section C., above. If trans- 1. The FIA’s policy and history concerning fer is required, the unearned expenses re- underwriting and claims handling. tained by the Company shall be remitted to 2. A mechanism to assist in clarification of the FIA. In such event the Government will coverage and claims questions. assume all obligations and liabilities owed to 3. Other assistance as needed. policyholders under such policies arising before and after the date of transfer. ARTICLE V—COMMENCEMENT AND TERMINATION E. In the event the Act is amended, or repealed, or expires, or if the FIA is otherwise A. Upon signature of authorized officials without authority to continue the Program, for both the Company and the FIA, this Ar- financial assistance under this Arrangement rangement shall be effective for the period may be canceled for any new or renewal busi- October 1 through September 30. The FIA ness, but the Arrangement shall continue for shall provide financial assistance only for policy applications and endorsements ac- policies in force that shall be allowed to run cepted by the Company during this period their term under the Arrangement. pursuant to the Program’s effective date, un- F. In the event that the Company is unable derwriting and eligibility rules. to, or otherwise fails to, carry out its obliga- B. By June 1, of each year, the FIA shall tions under this Arrangement by reason of publish in the FEDERAL REGISTER and make any order or directive duly issued by the De- available to the Company the terms for the partment of Insurance of any Jurisdiction to re-subscription of this Financial Assistance/ which the Company is subject, the Company Subsidy Arrangement. In the event the Com- agrees to transfer, and the Government will pany chooses not to re-subscribe, it shall no- accept, any and all WYO policies issued by tify the FIA to that effect by the following the Company and in force as of the date of July 1. such inability or failure to perform. In such C. In the event the Company elects not to event the Government will assume all obli- participate in the Program in any subse- gations and liabilities owed to policyholders quent fiscal year, or the FIA chooses not to under such policies arising before and after renew the Company’s participation, the FIA, at its option, may require (1) the continued the date of transfer and the Company will performance of this entire Arrangement for a immediately transfer to the Government all period not to exceed one (1) year following funds in its possession with respect to all the original term of this Arrangement, or such policies transferred and the unearned any renewal thereof, or (2) the transfer to portion of the Company expenses for oper- the FIA of: ating, administrative and loss adjustment on 1. All data received, produced, and main- all such policies. tained through the life of the Company’s par-

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ARTICLE VI—INFORMATION AND ANNUAL sions of this Arrangement or with respect to STATEMENTS the FIA’s non-renewal of the Company’s participation, other than as to legal liability The Company shall furnish to FEMA such under or interpretation of the standard flood summaries and analyses of information including claim file information, and property insurance policy, such misunderstanding or address, location, and/or site information in dispute may be submitted to arbitration for its records as may be necessary to carry out a determination that shall be binding upon the purposes of the National Flood Insurance approval by the FIA. The Company and the Act of 1968, as amended, in such form as the FIA may agree on and appoint an arbitrator FIA, in cooperation with the Company, shall who shall investigate the subject of the mis- prescribe. The Company shall be a property/ understanding or dispute and make a deter- casualty insurer domiciled in a State or termination. If the Company and the FIA can- ritory of the United States. Upon request, not agree on the appointment of an arbi- the Company shall file with the FIA a true trator, then two arbitrators shall be ap- and correct copy of the Company’s Fire and pointed, one to be chosen by the Company Casualty Annual Statement, and Insurance and one by the FIA. Expense Exhibit or amendments thereof as The two arbitrators so chosen, if they are filed with the State Insurance Authority of unable to reach an agreement, shall select a the Company’s domiciliary State. third arbitrator who shall act as umpire, and such umpire’s determination shall become ARTICLE VII—CASH MANAGEMENT AND final only upon approval by the FIA. ACCOUNTING The Company and the FIA shall bear in A. FEMA shall make available to the Com- equal shares all expenses of the arbitration. pany during the entire term of this Arrange- Findings, proposed awards, and determina- ment and any continuation period required tions resulting from arbitration proceedings by FIA pursuant to Article V, Section C., the carried out under this section, upon objec- Letter of Credit provided for in Article IV tion by FIA or the Company, shall be inad- drawn on a repository bank within the Fed- missible as evidence in any subsequent pro- eral Reserve System upon which the Com- ceedings in any court of competent jurisdic- pany may draw for reimbursement of its ex- tion. penses as set forth in Article IV that exceed This Article shall indefinitely succeed the net written premiums collected by the Com- term of this Arrangement. pany from the effective date of this Arrange- ARTICLE IX—ERRORS AND OMISSIONS ment or continuation period to the date of the draw. The parties shall not be liable to each B. The Company shall remit all funds, in- other for damages caused by inadvertent cluding interest, not required to meet cur- delay, error, or omission made in connection rent expenditures to the United States with any transaction under this Arrange- Treasury, in accordance with the provisions ment. In the event of such actions, the re- of the WYO Accounting Procedures Manual sponsible party must attempt to rectify that or procedures approved in writing by the error as soon as possible after discovery of FIA. the error and act to mitigate any costs in- C. In the event the Company elects not to curred due to that error. In the event that participate in the Program in any subse- steps are not taken to rectify the situation quent fiscal year, the Company and FIA and such action leads to claims against the shall make a provisional settlement of all company, the NFIP, or other related enti- amounts due or owing within three months ties, the responsible party shall bear all li- of the termination of this Arrangement. This ability attached to that delay, error or omis- settlement shall include net premiums col- sion to the extent permissible by law. lected, funds drawn on the Letter of Credit, However, in the event that the Company and reserves for outstanding claims. The has made a claim payment to an insured Company and FIA agree to make a final set- without including a mortgagee (or trustee) tlement of accounts for all obligations aris- of which the Company had actual notice ing from this Arrangement within 18 months prior to making payment, and subsequently of its expiration or termination, except for determines that the mortgagee (or trustee) contingent liabilities that shall be listed by is also entitled to any part of said claim pay- the Company. At the time of final settlement, any additional payment shall not be ment, the balance, if any, due the FIA or the paid by the Company from any portion of the Company shall be remitted by the other im- premium and any funds derived from any mediately and the operating year under this Federal Letter of Credit deposited in the Arrangement shall be closed. bank account described in Article II, section E. In addition, the Company agrees to hold ARTICLE VIII—ARBITRATION the Federal Government harmless against If any misunderstanding or dispute arises any claim asserted against the Federal Gov- between the Company and the FIA with ref- ernment by any such mortgagee (or Trustee), erence to any factual issue under any provi- as described in the preceding sentence, by

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reason of any claim payment made to any in- does not apply to policies provided by the sured under the circumstances described Company of which flood is one of the several above. perils covered, or where the flood insurance coverage amount is over and above the lim- ARTICLE X—OFFICIALS NOT TO BENEFIT its of liability available to the insured under No Member or Delegate to Congress, or the Program. Resident Commissioner, shall be admitted to ARTICLE XIV—ACCESS TO BOOKS AND RECORDS any share or part of this Arrangement, or to any benefit that may arise therefrom; but The FIA and the Comptroller General of this provision shall not be construed to ex- The United States, or their duly authorized tend to this Arrangement if made with a cor- representatives, for the purpose of investiga- poration for its general benefit. tion, audit, and examination shall have access to any books, documents, papers and ARTICLE XI—OFFSET records of the Company that are pertinent to At the settlement of accounts the Com- this Arrangement. The Company shall keep pany and the FIA shall have, and may exer- records that fully disclose all matters perti- cise, the right to offset any balance or bal- nent to this Arrangement, including pre- ances, whether on account of premiums, miums and claims paid or payable under commissions, losses, loss adjustment ex- policies issued pursuant to this Arrange- penses, salvage, or otherwise due one party ment. Records of accounts and records relat- to the other, its successors or assigns, here- ing to financial assistance shall be retained under or under any other Arrangements and available for three (3) years after final heretofore or hereafter entered into between settlement of accounts, and to financial as- the Company and the FIA. This right of off- sistance, three (3) years after final adjust- set shall not be affected or diminished be- ment of such claims. The FIA shall have ac- cause of insolvency of the Company. cess to policyholder and claim records at all All debts or credits of the same class, times for purposes of the review, defense, ex- whether liquidated or unliquidated, in favor amination, adjustment, or investigation of of or against either party to this Arrange- any claim under a flood insurance policy ment on the date of entry, or any order of subject to this Arrangement. conservation, receivership, or liquidation, ARTICLE XV—COMPLIANCE WITH ACT AND shall be deemed to be mutual debts and cred- REGULATIONS its and shall be offset with the balance only to be allowed or paid. No offset shall be al- This Arrangement and all policies of insur- lowed where a conservator, receiver, or liqui- ance issued pursuant thereto shall be subject dator has been appointed and where an obli- to the provisions of the National Flood In- gation was purchased by or transferred to a surance Act of 1968, as amended, the Flood party hereunder to be used as an offset. Disaster Protection Act of 1973, as amended, Although a claim on the part of either the National Flood Insurance Reform Act of party against the other may be unliquidated 1994, and Regulations issued pursuant there- or undetermined in amount on the date of to and all Regulations affecting the work the entry of the order, such claim will be re- that are issued pursuant thereto, during the garded as being in existence as of the date of term hereof. such order and any credits or claims of the same class then in existence and held by the ARTICLE XVI—RELATIONSHIP BETWEEN THE other party may be offset against it. PARTIES (FEDERAL GOVERNMENT AND COM- PANY) AND THE INSURED ARTICLE XII—EQUAL OPPORTUNITY Inasmuch as the Federal Government is a The Company shall not discriminate guarantor hereunder, the primary relation- against any applicant for insurance because ship between the Company and the Federal of race, color, religion, sex, age, handicap, Government is one of a fiduciary nature, i.e., marital status, or national origin. to assure that any taxpayer funds are accounted for and appropriately expended. The ARTICLE XIII—RESTRICTION ON OTHER FLOOD Company is not the agent of the Federal INSURANCE Government. The Company is solely respon- As a condition of entering into this Ar- sible for its obligations to its insured under rangement, the Company agrees that in any any flood policy issued pursuant hereto. area in which the Administrator authorizes ADDENDUM TO APPENDIX A TO PART 62—FED- the purchase of flood insurance pursuant to ERAL EMERGENCY MANAGEMENT AGENCY, the Program, all flood insurance offered and FEDERAL INSURANCE AND MITIGATION AD- sold by the Company to persons eligible to MINISTRATION, FINANCIAL ASSISTANCE/SUB- buy pursuant to the Program for coverages SIDY ARRANGEMENT available under the Program shall be written pursuant to this Arrangement. NOTE: This Addendum to Appendix A to However, this restriction applies solely to Part 62 applies only to a public entity risk- policies providing only flood insurance. It sharing organization, an association of local

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governments, a State association of political (CPA) firms. This Plan will use to the extent subdivisions, a State-sponsored municipal possible the findings of these examinations league, and any other intergovernmental and audits as they pertain to business writ- risk-sharing pool for covering public entity ten under the WYO Program. structures participating in the pilot project (2) This Plan contains several checks and established in § 62.24(b) that permits inter- balances that can, if properly implemented governmental risk-sharing pools to provide by the WYO Company, significantly reduce flood insurance to public entities to cover the need for extensive on-site reviews of the public buildings. Company’s files by us or our designee. Fur- (1) ‘‘Company’’ in the preceding Arrange- thermore, we believe that this process is con- ment includes ‘‘a public entity risk-sharing sistent with customary reinsurance practices organization, an association of local govern- and avoids duplication of examinations per- ments, a State association of political sub- formed under the auspices of individual divisions, a State-sponsored municipal State Insurance Departments, NAIC Zone ex- league, and any other intergovernmental aminations, and independent CPA firms. risk-sharing pool for covering public entity (c) Standards Committee established. (1) We structures.’’ establish in this Plan a Standards Com- (2) The references to ‘‘marketing guide- mittee for the WYO Program to oversee the lines’’ in Article II—Undertaking of the performance of WYO companies under this Company and to ‘‘marketing goals’’ in Arti- Plan and to recommend appropriate reme- cle III—Loss Costs, Expenses, Expense Reim- dial actions to the Administrator. The bursement, and Premium Refunds shall Standards Committee will review and rec- apply only to the private insurance compa- ommend to the Administrator remedies for nies participating in the WYO program. any adverse action arising from the implementation of the Financial Control Plan. Ad- [62 FR 39910, July 24, 1997, as amended at 63 verse actions include, but are not limited to, FR 32761, June 16, 1998; 64 FR 27709, May 21, not renewing a particular company’s WYO 1999; 65 FR 36634, June 9, 2000; 66 FR 40917, Arrangement. Aug. 6, 2001; 67 FR 13550, Mar. 22, 2002; 67 FR (2) The Administrator appoints the mem- 51769, Aug. 9, 2002] bers of the Standards Committee, which consists of five (5) members from FIA, one (1) APPENDIX B TO PART 62—NATIONAL member from FEMA’s Office of Financial FLOOD INSURANCE PROGRAM Management, and one (1) member from each of the six (6) designated WYO Companies, A PLAN TO MAINTAIN FINANCIAL CONTROL FOR pools, or other entities. BUSINESS WRITTEN UNDER THE WRITE YOUR (3) A WYO company must— OWN PROGRAM. (A) Have a biennial audit of the flood in- (a) In general. Under the Write Your Own surance financial statements conducted by a (WYO) Program, we (the Federal Insurance CPA firm at the Company’s expense to en- Administration (FIA), Federal Emergency sure that the financial data reported to us Management Agency (FEMA)) may enter accurately represents the flood insurance ac- into an arrangement with individual private tivities of the Company. The CPA firm must sector insurance companies licensed to en- conduct its audits in accordance with gen- gage in the business of property insurance. erally accepted auditing standards (GAAS) The arrangement allows these companies— and the Government Auditing Standards using their customary business practices—to issued by the Comptroller General of the offer flood insurance coverage to eligible United States (commonly known as ‘‘yellow property owners. To assist companies in book’’ requirements). The Company must marketing flood insurance coverage, the file with us a report of the CPA firm’s de- Federal Government will be a guarantor of tailed biennial audit, and, after our review of flood insurance coverage for WYO policies the audit report, we will convey our deter- issued under the WYO Arrangement. To ac- mination to the Standards Committee. count for and ensure appropriate spending of (B) Participate in a WYO Company/FIA Op- any taxpayer funds, the WYO companies and eration review. We will conduct a review of we will implement this Financial Control the WYO Company’s flood insurance claims, Plan (Plan). Only the Administrator may ap- underwriting, customer service, marketing, prove any departures from the requirements and litigation activities at least once every of this Plan. three (3) years. As part of these reviews, we (b) Financial Control Plan. (1) The WYO will reconcile specific files with a listing of Companies are subject to audit, examina- transactions submitted by the Company tion, and regulatory controls of the various under the Transaction Record Reporting and States. Additionally, the operating depart- Processing Plan (Part 5). We will file a re- ment of an insurance company is custom- port of the Operation Review with the Stand- arily subject to examinations and audits per- ards Committee (Part 7). formed by the company’s internal audit or (C) Meet the recording and reporting re- quality control departments, or both, and quirements of the WYO Transaction Record independent Certified Public Accountant Reporting and Processing (TRRP) Plan and

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the WYO Accounting Procedures Manual. 63.5 Coverage for contents removal. The National Flood Insurance Program’s 63.6 Reimbursable relocation costs. (NFIP) Bureau and Statistical Agent will 63.7 Amount of coverage and deductible on analyze the transactions reported under the effective date of condemnation or certifi- TRRP Plan and submit a monthly report to cation. the WYO company and to us. The analysis 63.8 Limitation on amount of benefits. will cover the timeliness of the WYO submis- 63.9 Sale while claim pending. sions, the disposition of transactions that do 63.10 Demolition or relocation contractor to not pass systems edits, and the reconcili- be joint payee. ation of the totals generated from trans- 63.11 Requirement for a commitment before action reports with those submitted on the October 1, 1989. WYO Company’s reports. (Parts 2 and 6). 63.12 Setback and community flood plain (D) Cooperate with FEMA’s Office of Fi- management requirements. nancial Management on Letter of Credit matters. Subpart B—State Certification of Structures (E) Cooperate with us in the implementa- Subject to Imminent Collapse tion of a claims reinspection program (Part 3). 63.13 Purpose of subpart. (F) Cooperate with us in the verification of 63.14 Criteria for State qualification to per- risk rating information. form imminent collapse certifications. (G) Cooperate with FEMA’s Office of In- 63.15 State application for eligibility to cer- spector General on matters pertaining to tify structures subject to imminent col- fraud. lapse. (d) This Plan incorporates by reference a 63.16 Review of State application by the Ad- separate document, ‘‘The Write Your Own ministrator. Program Financial Control Plan Require- 63.17 Procedures and data requirements for ments and Procedures,’’ that contains the imminent collapse certifications by following parts, each of which is incor- States. porated by reference into and is applicable to 63.18 Review of State certification by the the Financial Control Plan: Administrator. (1) Part 1—Financial Audits, Audits for AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- Cause, and State Insurance Department Au- nization Plan No. 3 of 1978; E.O. 12127. dits; (2) Part 2—Transaction Record Reporting SOURCE: 53 FR 36975, Sept. 23, 1988, unless and Processing Plan Reconciliation Proce- otherwise noted. dures; (3) Part 3—Claims Reinspection Program; Subpart A—General (4) Part 4—Report Certifications and Sig- nature Authorization; § 63.1 Purpose of part. (5) Part 5—Transaction Record Reporting and Processing Plan; The purpose of this part is to imple- (6) Part 6—Write Your Own (WYO) Ac- ment section 1306(c) of the National counting Procedures Manual; and Flood Insurance Act of 1968, as amend- (7) Part 7—Operation Review Procedures. ed (the Act). Section 544 of the Housing (e) Interested members of the public may and Community Development Act of obtain a copy of ‘‘The Write Your Own Pro- 1987 (Pub. L. 100–242) amended the Act gram Financial Control Plan Requirements by adding subsection (c) to section 1306 and Procedures’’ by contacting the FEMA Distribution Center, P.O. Box 2012, Jessup, of the Act. Under this amendment, ef- MD 20794.’’ fective February 5, 1988, section 1306(c) of the Act provides for benefit pay- [64 FR 56176, Oct. 18, 1999] ments under the Standard Flood Insur- ance Policy (SFIP) for demolition or PART 63—IMPLEMENTATION OF relocation of a structure insured under SECTION 1306(c) OF THE NA- the Act that is located along the shore TIONAL FLOOD INSURANCE ACT of a lake or other body of water and OF 1968 that is certified by an appropriate State or local land use authority to be Subpart A—General subject to imminent collapse or subsidence as a result of erosion or under- Sec. mining caused by waves or currents of 63.1 Purpose of part. 63.2 Condemnation in lieu of certification. water exceeding anticipated cyclical 63.3 Requirement to be covered by a con- levels. This part establishes criteria by tract for flood insurance by June 1, 1988. which States can obtain the approval 63.4 Property not covered. of the Administrator to make these

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certifications and sets forth the proce- Write Your Own (WYO) Company on or dures and data requirements to be used before June 1, 1988. by those States in making these certifications. This part also contains pro- § 63.4 Property not covered. visions regarding other aspects of sec- Benefits under section 1306(c) of the tion 1306(c) of the Act. For example, Act do not include compensation for there are provisions regarding section items excluded under the provisions of 1306(c)(6)(B) of the Act (which provides the Standard Flood Insurance Policy for condemnation in lieu of certifi- (SFIP). cation), including clarification as to the form of condemnation issued under § 63.5 Coverage for contents removal. a State or local law that is required. Whenever a structure is subject to imminent collapse or subsidence as a § 63.2 Condemnation in lieu of certifi- result of erosion or undermining cation. caused by waves or currents of water (a) The condemnation required by exceeding anticipated cyclical levels section 1306(c)(6)(B) of the Act in lieu and otherwise meets the requirements of certification need not be grounded in of section 1306(c) of the Act so that a finding that the structure is subject benefits are payable under those provi- to imminent collapse or subsidence as sions, the coverage in the definition of a result of erosion, but may be issued ‘‘Direct Physical Loss by or from for other reasons deemed sufficient by Flood’’ in the SFIP for the expense of the State or local authority. removing contents, up to the minimum (b) The condemnation may be in the deductible of $500.00, to protect and form of a court order or other instru- preserve them from flood or from the ment authorized by State or local law, imminent danger of flood, applies if e.g., a notification to the property contents coverage is in effect. owner of an unsafe condition, or unsan- itary condition, or other deficiency at § 63.6 Reimbursable relocation costs. the property address, coupled with a In addition to the coverage described statement that the property owner in § 63.5 of this part, relocation costs must vacate the property if the condi- for which benefits are payable under tion giving rise to the condemnation section 1306(c) of the Act include the notice is not cured by repair, removal, costs of: or demolition of the building by a date (a) Removing the structure from the certain. site, (c) In addition to a condemnation in (b) Site cleanup, accordance with paragraphs (a) and (b) (c) Debris removal, of this section, a structure must be (d) Moving the structure to a new found by the Administrator to be sub- site, and ject to imminent collapse or subsid- (e) At the new site, a new foundation ence as a result of erosion or under- and related grading, including ele- mining caused by waves or currents of vating the structure as required by water exceeding anticipated cyclical local flood plain management ordi- levels to be eligible for benefits under nances, and sewer, septic, electric, gas, section 1306(c) of the Act. telephone, and water connections at the building. § 63.3 Requirement to be covered by a contract for flood insurance by § 63.7 Amount of coverage and deduct- June 1, 1988. ible on effective date of condemnation or certification. The requirement in section 1306(c)(4)(C)(i) of the Act that a struc- The amount of building coverage and ture be ‘‘covered by a contract for flood the deductible applicable to a claim for insurance under this title—(i) on or be- benefits under section 1306(c) of the Act fore June 1, 1988’’ was met if presen- are what was in effect on the date of tation of the appropriate premium and condemnation or the date of applica- a properly completed flood insurance tion for certification. application form was made to the Na- [53 FR 36975, Sept. 23, 1988, as amended at 53 tional Flood Insurance Program or a FR 44193, Nov. 2, 1988]

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§ 63.8 Limitation on amount of bene- (b) A policyholder’s notice of claim fits. for benefits under section 1306(c) of the Act is received by the insurer. (a) In section 1306(c)(3)(C) of the Act, the phrase under the flood insurance § 63.12 Setback and community flood contract issued pursuant to this title plain management requirements. means the value of the structure under (a) Where benefits have been paid section 1306(c)(3)(C) of the Act is lim- under section 1306(c) of the Act, the ited to the amount of building coverage setback requirements in section provided by the insured’s policy. 1306(c)(5) of the Act, which if not met (b) Where the amount payable under result in a prohibition against subse- section 1306(c)(1)(A)(ii) of the Act for quently providing flood insurance or the cost of demolition, together with assistance under the Disaster Relief the amount payable under section Act of 1974, shall apply: 1306(c)(1)(A) of the Act for the value of (1) To the structure involved wher- the structure under the demolition op- ever it is located, and tion, exceeds the amount of building (2) To any other structure subse- coverage provided by the insured’s pol- quently constructed on or moved to the icy, such amounts will be paid beyond parcel of land on which the structure the amount of that building coverage, involved was located when the claim even if this payment exceeds the limits under section 1306(c) of the Act arose. of coverage otherwise authorized by (b) In addition, any structures relo- section 1306(a) of the Act for the par- cated under section 1306 of the Act ticular class of property. must comply with the flood plain management criteria set forth in § 60.3 of § 63.9 Sale while claim pending. this chapter. If a claimant sells a structure prior to its demolition or relocation, no ben- Subpart B—State Certification of efits are payable to that claimant Structures Subject to Imminent under section 1306(c) of the Act, and Collapse any payments which may have been § 63.13 Purpose of subpart. made under those provisions shall be reimbursed to the insurer making The purpose of this subpart is to es- them. tablish criteria under the provisions of section 1306(c) of the National Flood § 63.10 Demolition or relocation con- Insurance Act of 1968, as amended, by tractor to be joint payee. which States can obtain approval from If a demolition or relocation con- the Administrator to certify that tractor is used, the instrument of pay- structures are subject to imminent col- ment for benefits under section 1306(c) lapse or subsidence as a result of ero- of the Act for the fee of that con- sion or undermining caused by waves or currents of water exceeding antici- tractor, shall include that contractor pated cyclical levels. The subpart also as a joint payee, unless that contractor sets forth the procedures and data re- has already been paid when the instru- quirements to be utilized by those ment of payment is issued. States in certifying structures as sub- § 63.11 Requirement for a commitment ject to imminent collapse. The State before October 1, 1989. certification procedure represents an option to the use of the procedure The requirement in section 1306(c)(7) whereby a structure is condemned by a of the Act that a commitment be made State or local authority as a pre- on or before September 30, 1989 as a requisite to consideration for immi- necessary condition to making any nent collapse insurance benefits. payments after September 30, 1989, is met if before October 1, 1989, § 63.14 Criteria for State qualification (a) There is either a condemnation in to perform imminent collapse cer- accordance with § 63.2 of this part or a tifications. certification in accordance with sub- In order to qualify under this subpart B of this part, and part, the State must be administering

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a coastal zone management program finding it incomplete or upon finding which includes the following compo- that additional information is required nents, as a minimum: in order to make a determination as to (a) A state-wide requirement that the adequacy of the coastal zone man- prohibits new construction and the re- agement program and erosion rate data location of structures seaward of an base. adopted erosion setback. Such setback (b) Upon determining that the must be based in whole or in part on State’s program and/or data base does some multiple of the local mean an- not meet the criteria set forth in nual erosion (recession) rate; and § 63.14, the Administrator shall in writ- (b) An established, complete and ing reject the application for eligibility functional data base of mean annual and indicate in what respects the State erosion rates for all reaches of coastal program and/or data base fails to com- shorelines subject to erosion in the ply with the criteria. State, which is used as the basis to en- (c) Upon determining that the State force these setback requirements. program and data base meets the cri- § 63.15 State application for eligibility teria set forth in § 63.14, the Adminis- to certify structures subject to im- trator shall approve the State as eligi- minent collapse. ble to certify structures subject to imminent collapse. Such approval, how- (a) Application pursuant to this part ever, is in all cases provisional. The shall be made by the Governor or other duly authorized official of the State. Administrator shall review the State (b) The application must be sub- program and data base for continued mitted to the Federal Emergency Man- compliance with the criteria set forth agement Agency, Federal Insurance in this part and may request updated Administration, 500 C Street SW., documentation for the purpose of such Washington, DC 20472. review. If the program and/or data base (c) Documents to be included in the is found to be inadequate and is not application are as follows: corrected within ninety days from the (1) Copies of all applicable State stat- date that such inadequacies were iden- utes and regulations verifying the ex- tified, the Administrator may revoke istence of a coastal zone management his approval. program including setback require- § 63.17 Procedures and data requirements for new and relocated construc- ments for imminent collapse certifi- tion which are based in whole or in cations by States. part on mean annual erosion rates established for the State’s shorelines. Any State that has been determined (2) A copy of the State’s mean annual to be eligible by the Administrator erosion rate data base, if not already may certify that a coastal structure is provided, showing such rates for all subject to imminent collapse. Such reaches of coastal shorelines subject to certification requires that the State erosion within the State. collect scientific or technical informa- (3) The title, address and phone num- tion relative to the structure and its ber of a contact person within the site and provide such information to State agency having authority for ad- the insured to be filed with a claim for ministering the coastal zone manage- insurance benefits under Section 1306 ment program. of the National Flood Insurance Act of (4) A statement that adequate re- 1968, as amended. The information sources are available to carry out the which is provided to the insured shall certification services, and that certifi- include, but is not limited to, the fol- cations will be performed in accord- lowing: ance with the procedures described in (a) Certification from the State agen- § 63.17. cy that the structure is subject to imminent collapse. The certification shall § 63.16 Review of State application by cite the property address, legal descrip- the Administrator. tion (e.g., lot, block), the date of appli- (a) The Administrator may return cation for certification, and the date of the application for eligibility upon and basis for the certification, and

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(b) Supporting scientific and tech- (C) Debris line deposited by the nor- nical data to substantiate the certifi- mal high tide, not by a recent storm. cation consisting of the following: (D) Upper limit of wet sand. (1) Photographs of the structure in (3) Distance measurements from the relation to the obvious peril. All photo- threatened structure to the nearest graphs should be labeled with the loca- points on the reference features. These tion, direction, date and time from measurements should be taken from all which they were taken. The collection photographed reference features to the of photographs should adequately dis- closest point on the supporting founda- play the following: tion. For purposes of making this (i) Any evidence of existing damage. measurement, decks, stairs, and other The damage can include loss or erosion exterior attachments that do not con- of soil near or around the foundation, tribute to the structural support of the or structural damage to the foundation building are not considered part of the components. structure. The measurements shall be (ii) Structure and waterbody. These taken horizontally with a tape and re- photographs shall show both the struc- corded to the nearest foot. The date ture and the waterbody that presents and time of the measurement shall be the peril. If the structure is on a high noted. The location of the measure- bluff or dune and not accessible from ments (i.e., reference feature and clos- the water side, the top edge of the bluff est structural member) shall be identi- or dune will be sufficient. These will fied on the appropriate photograph or usually be taken from one or both sides sketch of the site. If some or all of the of the structure. reference features coincide, this shall also be noted and identified on the pho- (iii) Physical reference features used tographs. Reference features landward in the measurements discussed below. of the structure need not be measured, The reference feature shall be in or but shall be noted on the photographs. near the area affected by normal tides, (4) A determination of the average when applicable. If a reference is not annual erosion rate at the site and a clearly distinguishable on the photo- copy of the pertinent section of the ref- graph, it should be annotated to iden- erence document used to obtain the an- tify the feature. If possible, all ref- nual erosion rate at the site. erence features described below should (5) Copy of the effective Flood Insur- be photographed showing their rela- ance Rate Map panel annotated with tionship to the site of the threatened the location of the threatened struc- structure. ture. (2) Identification and selection of ref- (6) In the event that a structure is erence features. The following ref- not situated within a ‘‘zone of immi- erence features are presented according nent collapse’’ using the criteria and to priority. If the first feature is not procedures in paragraphs (b) (1) present, the next feature shall be lo- through (5) of this section, then the cated and photographed, and so forth. State may submit other scientific and (i) Top edge of bluff (cliff top). technical data, in addition to the infor- (ii) Top edge of escarpment on an mation described in paragraphs (b) (1) eroding dune (i.e., a nearly vertical through (5) of this section, that would erosional cut at the seaward face of the reveal unusual erosive or stability con- dune). The normal high tide should be ditions at the site. Such data must in- near the toe of the dune and there clude engineering analyses or reports should be indications that the dune is performed on the structure or site actively eroding. which evaluates local rates of erosion, (iii) The normal high tide limit may or the condition or stability of the be indicated by one of the following: structure’s foundation including sup- (A) Vegetation line (the seaward porting soil. most edge of permanent vegetation). (c) In the case of structures planned (B) Beach scarp (erosion line on to be relocated, a certification as to beach, usually a sharp, nearly vertical whether the proposed relocation site is drop of 0.5 to 3.0 feet at the upper limit outside the 30-year setback for 1–4 fam- of high tide). ily residential structures, or outside

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the 60-year setback for all other struc- which the Agency will use for identi- tures, must also be submitted by the fying the hazard areas on maps. State. (b) 42 U.S.C. 4056 authorizes an emergency implementation of the National [53 FR 36975, Sept. 23, 1988, as amended at 53 FR 44193, Nov. 2, 1988] Flood Insurance Program whereby the Administrator may make subsidized § 63.18 Review of State certification by coverage available to eligible commu- the Administrator. nities prior to the completion of de- The Administrator, after a claim has tailed risk studies for such areas. This been filed by the property owner, will part also describes procedures under review the certification and data pre- the emergency program and lists compared by the State. Upon completion of munities which become eligible under the review, the State will be notified the NFIP. that: [48 FR 28278, June 21, 1983, as amended at 49 (a) The structure has been deter- FR 4751, Feb. 8, 1984; 49 FR 33879, Aug. 27, mined to be subject to imminent col- 1984] lapse, or (b) The structure has not been deter- § 64.2 Definitions. mined to be subject to imminent col- The definitions set forth in part 59 of lapse and the basis for such determina- this subchapter are applicable to this tion, or part. (c) Additional data are needed to [41 FR 46986, Oct. 26, 1976. Redesignated at 44 verify that the procedures and criteria FR 31177, May 31, 1979] for imminent collapse certification have been met. § 64.3 Flood Insurance Maps. (a) The following maps may be pre- PART 64—COMMUNITIES ELIGIBLE pared by the Administrator for use in FOR THE SALE OF INSURANCE connection with the sale of flood insurance: Sec. (1) Flood Insurance Rate Map: This 64.1 Purpose of part. map is prepared after the flood hazard 64.2 Definitions. study for the community has been 64.3 Flood Insurance Maps. completed and the risk premium rates 64.4 Effect on community eligibility result- have been established. The FIRM indi- ing from boundary changes, govern- cates the risk premium rate zones ap- mental reorganization, etc. plicable in the community and when 64.5 Relationship of rates to zone designations. those rates are effective. The FIRM 64.6 List of eligible communities. also may indicate, at the request of the community, zones to identify areas of AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- future-conditions flood hazards. The nization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, symbols used to designate the risk pre- 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. mium rate zones and future-conditions zones are as follows: § 64.1 Purpose of part. Zone symbol (a) 42 U.S.C. 4012(c), 4022 and 4102 require that flood insurance in the max- A ...... Area of special flood hazard without water surface elevations determined imum limits of coverage under the reg- A1–30, AE ...... Area of special flood hazard with water ular program shall be offered in com- surface elevations determined munities only after the Administrator A0 ...... Area of special flood hazards having shallow water depths and/or unpredict- has: (1) Identified the areas of special able flow paths between (1) and (3) ft flood, mudslide (i.e., mudflow) or flood- A99 ...... Area of special flood hazard where related erosion hazards within the enough progress has been made on a protective system, such as dikes, community; and/or (2) completed a risk dams, and levees, to consider it com- study for the applicant community. plete for insurance rating purposes The priorities for conducting such risk AH ...... Areas of special flood hazards having studies are set forth in §§ 59.23 and 60.25 shallow water depths and/or unpredictable flow paths between (1) and (3) of this subchapter. The purpose of this feet, and with water surface elevations part is to define the types of zones determined

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Zone symbol (2) One or more official locations within the community in which flood AR ...... Area of special flood hazard that results from the decertification of a previously insurance is offered. accredited flood protection system that (3) [Reserved] is determined to be in the process of (4) The official record copy of each being restored to provide base flood official map shall be maintained in protection V ...... Area of special flood hazards without FEMA files in Washington, DC. water surface elevations determined, [41 FR 46986, Oct. 26, 1976. Redesignated at 44 and with velocity, that is inundated by tidal floods (coastal high hazard area) FR 31177, May 31, 1979, as amended at 46 FR V1–30, VE ...... Area of special flood hazards, with water 1274, Jan. 6, 1981; 48 FR 28278, June 21, 1983; 48 surface elevations determined and FR 44544 and 44552, Sept. 29, 1983; 49 FR 4751, with velocity, that is inundated by tidal Feb. 8, 1984; 50 FR 36028, Sept. 4, 1985; 59 FR floods (coastal high hazard area) 53599, Oct. 25, 1994; 62 FR 55716, Oct. 27, 1997; V0 ...... Area of special flood hazards having 66 FR 59170, Nov. 27, 2001] shallow water depths and/or unpredictable flow paths between (1) and (3) ft. § 64.4 Effect on community eligibility and with velocity B, X...... Areas of moderate flood hazards or resulting from boundary changes, areas of future-conditions flood haz- governmental reorganization, etc. ard. (a) When a community not partici- C, X ...... Area of minimal hazards D ...... Area of undetermined but possible, flood pating in the Program acquires by hazards means of annexation, incorporation, or M ...... Area of special mudslide (i.e., mudflow) otherwise, an area within another com- hazards munity participating in the Program, N ...... Area of moderate mudslide (i.e., mudflow) hazards no new flood insurance shall be made P ...... Area of undetermined, but possible, available as of the effective date of an- mudslide hazards nexation until the newly acquiring E ...... Area of special flood-related erosion community participates in the Pro- hazards. gram. Until the effective date of participation, existing flood insurance Areas identified as subject to more policies remain in effect until the pol- than one hazard (flood, mudslide (i.e., icy’s date of expiration, but shall not mudflow), flood-related erosion) or po- be renewed. tential hazard (i.e., future-conditions (b) When a community participating flooding) will be designated on the in the Program acquires by means of FIRM by use of the proper zone sym- annexation, incorporation, or other- bols in combination. wise, another area which was pre- (2) Flood Hazard Boundary Map viously located in a community either (FHBM). This map is issued by the Ad- participating or not participating in ministrator delineating Zones A, M, the Program, the community shall and E within a community. have six months from the date of ac- (b) Notice of the issuance of new or quisition to formally amend its flood revised FHBMs or FIRMs is given in plain management regulations in order Part 65 of this subchapter. The manda- to include all flood-prone areas within tory purchase of insurance is required the newly acquired area. The amended within designated Zones A, A1–30, AE, regulations shall satisfy the applicable A99, AO, AH, AR, AR/A1–30, AR/AE, requirements in § 60.3 of this sub- AR/AO, AR/AH, AR/A, V1–30, VE, V, chapter based on the data previously VO, M, and E. provided by the Administrator. In the (c) The FHBM or FIRM shall be event that the newly acquired area was maintained for public inspection at the previously located in a community par- following locations: ticipating in the Program, the provi- (1) The information office of the sions of this section shall only apply if State agency or agencies designated by the community, upon acquisition, and statute or the respective Governors to pending formal adoption of the amend- cooperate with the Administrator in ment to its flood plain management implementing the Program whenever a regulations, certifies in writing over community becomes eligible for Pro- the signature of a community official gram participation and the sale of in- that within the newly acquired area surance pursuant to this section or is the flood plain management require- identified as flood prone. ments previously applicable in the area

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remain in force. In the event that the ticipation pursuant to § 59.24 of this newly-acquired area was previously lo- subchapter. cated in a community not partici- (d) Where any community or any pating in the Program, the provisions area within a community had in effect of the section shall only apply if the a FHBM or FIRM, but all or a portion community, upon acquisition, and of that community has been acquired pending formal adoption of the amend- by another community, or becomes au- ments to its flood plain management tonomous, that map shall remain in ef- regulations, certifies in writing over fect until it is superseded by the Ad- the signature of a community official ministrator, whether by republication that it shall enforce within the newly- as part of the map of the acquiring month period, existing flood insurance community, or otherwise. policies shall remain in effect until (e) When a community described in paragraph (a), (b), (c), or (d) of this sec- their date of expiration may be re- tion has flood elevations in effect, no newed, and new policies may be issued. new appeal period under parts 66, 67, Failure to satisfy the applicable re- and 68 of this subchapter will begin ex- quirements in § 60.3 shall result in the cept as new scientific and technical community’s suspension from Program data are available. participation pursuant to § 59.24 of this subchapter. [41 FR 46986, Oct. 26, 1976. Redesignated at 44 (c) When an area previously a part of FR 31177, May 31, 1979, as amended at 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] a community participating in the Pro- gram becomes autonomous or becomes § 64.5 Relationship of rates to zone a portion of a newly autonomous com- designations. munity resulting from boundary (a) In order to expedite a commu- changes, governmental reorganization, nity’s qualification for flood insurance changes in state statutes or constitu- under the emergency program, the Ad- tion, or otherwise, such new commu- ministrator may authorize the sale of nity shall be given six months from the such insurance without designating date of its independence, to adopt flood any Zones A, M, or E within a commu- plain management regulations within nity, provided the community has pre- the special hazard areas subject to its viously adopted flood plain manage- jurisdiction and to submit its applica- ment regulations meeting the require- tion for participation as a separate ments of § 60.3(a), § 60.4(a) or § 60.5(a) of community in order to retain eligi- this subchapter. When the Adminis- bility for the sale of flood insurance. trator has obtained sufficient technical The regulations adopted by such new information to delineate Zones A, M, community shall satisfy the applicable or E, he/she shall delineate the ten- requirements in § 60.3 of this sub- tative boundaries on a FHBM. chapter based on the data previously (b) Upon the effective date of the provided by the Administrator. The FIRM, flood insurance will continue to provisions of this section shall only be available throughout the entire apply where the new community upon community at chargeable rates (i.e., the date of its independence certifies in subsidized) for first layer coverage of writing over the signature of a commu- existing structures, but will be only nity official that, pending formal adop- available at risk premium rates for all tion of flood plain management regula- new construction and substantial im- tions, the flood plain management re- provements. Upon the effective date of quirements previously applicable in a FIRM, second layer coverage is avail- that area remain in effect. During the able only at risk premium rates for all six month period, existing flood insur- structures. ance policies shall remain in effect (c) Detailed insurance information until their dates of expiration may be may be obtained from the servicing renewed, and new policies may be companies. See part 62 of this sub- issued. Failure to satisfy the applicable chapter. requirements in § 60.3 of this sub- [41 FR 46986, Oct. 26, 1976. Redesignated at 44 chapter shall result in the commu- FR 31177, May 31, 1979, as amended at 48 FR nity’s suspension from Program par- 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]

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§ 64.6 List of eligible communities. lated erosion hazards. The purpose of The sale of flood insurance pursuant this part is to outline the steps a com- to the National Flood Insurance Pro- munity needs to take in order to assist gram (42 U.S.C. 4001–4128) is authorized the Agency’s effort in providing up-to- for the communities set forth under date identification and publication, in this section. Previous listings under the form of the maps described in part this part continue in effect until re- 64, on special flood, mudslide (i.e., vised. mudflow) and flood-related erosion hazards. [41 FR 46986, Oct. 25, 1976] EDITORIAL NOTE: For references to FR [48 FR 28278, June 21, 1983] pages showing lists of eligible communities, see the List of CFR Sections Affected, which § 65.2 Definitions. appears in the Finding Aids section of the (a) Except as otherwise provided in printed volume and on GPO Access. this part, the definitions set forth in part 59 of this subchapter are applica- PART 65—IDENTIFICATION AND ble to this part. MAPPING OF SPECIAL HAZARD (b) For the purpose of this part, a AREAS certification by a registered professional engineer or other party does not Sec. 65.1 Purpose of part. constitute a warranty or guarantee of 65.2 Definitions. performance, expressed or implied. Cer- 65.3 Requirement to submit new technical tification of data is a statement that data. the data is accurate to the best of the 65.4 Right to submit new technical data. certifier’s knowledge. Certification of 65.5 Revision to special hazard area boundaries with no change to base flood ele- analyses is a statement that the anal- vation determinations. yses have been performed correctly and 65.6 Revision of base flood elevation deter- in accordance with sound engineering minations. practices. Certification of structural 65.7 Floodway revisions. works is a statement that the works 65.8 Review of proposed projects. 65.9 Review and response by the Adminis- are designed in accordance with sound trator. engineering practices to provide pro- 65.10 Mapping of areas protected by levee tection from the base flood. Certifi- systems. cation of ‘‘as built’’ conditions is a 65.11 Evaluation of sand dunes in mapping statement that the structure(s) has coastal flood hazard areas. 65.12 Revision of flood insurance rate maps been built according to the plans being to reflect base flood elevations caused by certified, is in place, and is fully func- proposed encroachments. tioning. 65.13 Mapping and map revisions for areas (c) For the purposes of this part, subject to alluvial fan flooding. ‘‘reasonably safe from flooding’’ means 65.14 Remapping of areas for which local flood protection systems no longer pro- base flood waters will not inundate the vide base flood protection. land or damage structures to be re- 65.15 List of communities submitting new moved from the SFHA and that any technical data. subsurface waters related to the base 65.16 Standard Flood Hazard Determination flood will not damage existing or pro- Form and Instructions. § 65.17 Review of determinations. posed buildings. AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- [51 FR 30313, Aug. 25, 1986, as amended at 66 nization Plan No. 3 of 1978, 43 FR 41943, 3 FR 22442, May 4, 2001] CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 65.3 Requirement to submit new technical data. § 65.1 Purpose of part. A community’s base flood elevations 42 U.S.C. 4104 authorizes the Director may increase or decrease resulting to identify and publish information from physical changes affecting flood- with respect to all areas within the ing conditions. As soon as practicable, United States having special flood, but not later than six months after the mudslide (i.e., mudflow) and flood-re-

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date such information becomes avail- § 65.5 Revision to special hazard area able, a community shall notify the Ad- boundaries with no change to base ministrator of the changes by submit- flood elevation determinations. ting technical or scientific data in ac- (a) Data requirements for topographic cordance with this part. Such a sub- changes. In many areas of special flood mission is necessary so that upon con- hazard (excluding V zones and firmation of those physical changes af- floodways) it may be feasible to elevate fecting flooding conditions, risk pre- areas with engineered earthen fill mium rates and flood plain manage- above the base flood elevation. Sci- ment requirements will be based upon entific and technical information to current data. support a request to gain exclusion from an area of special flood hazard of [51 FR 30313, Aug. 25, 1986] a structure or parcel of land that has been elevated by the placement of engi- § 65.4 Right to submit new technical data. neered earthen fill will include the following: (a) A community has a right to re- (1) A copy of the recorded deed indi- quest changes to any of the informa- cating the legal description of the tion shown on an effective map that property and the official recordation does not impact flood plain or floodway information (deed book volume and delineations or base flood elevations, page number) and bearing the seal of such as community boundary changes, the appropriate recordation official labeling, or planimetric details. Such a (e.g., County Clerk or Recorder of submission shall include appropriate Deeds). supporting documentation in accord- (2) If the property is recorded on a ance with this part and may be sub- plat map, a copy of the recorded plat mitted at any time. indicating both the location of the (b) All requests for changes to effec- property and the official recordation tive maps, other than those initiatedby information (plat book volume and FEMA, must be made in writing by the page number) and bearing the seal of Chief Executive Officer of the commu- the appropriate recordation official. If nity (CEO) or an official designated by the property is not recorded on a plat the CEO. Should the CEO refuse to sub- map, FEMA requires copies of the tax mit such a request on behalf of another map or other suitable maps to help in party, FEMA will agree to review it locating the property accurately. only if written evidence is provided in- (3) A topographic map or other infor- dicating the CEO or designee has been mation indicating existing ground ele- requested to do so. vations and the date of fill. FEMA’s de- (c) Requests for changes to effective termination to exclude a legally de- Flood Insurance Rate Maps (FIRMs) fined parcel of land or a structure from and Flood Boundary and Floodway the area of special flood hazard will be based upon a comparison of the base Maps (FBFMs) are subject to the cost flood elevations to the lowest ground recovery procedures described in 44 elevation of the parcel or the lowest CFR part 72. As indicated in part 72, re- adjacent grade to the structure. If the visions requested to correct mapping lowest ground elevation of the entire errors or errors in the Flood Insurance legally defined parcel of land or the Study analysis are not to be subject to lowest adjacent grade to the structure the cost-recovery procedures. are at or above the elevations of the [51 FR 30313, Aug. 25, 1986, as amended at 57 base flood, FEMA will exclude the par- FR 29038, June 30, 1992; 61 FR 46331, Aug. 30, cel and/or structure from the area of 1996; 62 FR 5736, Feb. 6, 1997] special flood hazard. (4) Written assurance by the partici- EDITORIAL NOTE: For references to FR pating community that they have com- pages showing lists of eligible communities, see the List of CFR Sections Affected, which plied with the appropriate minimum appears in the Finding Aids section of the floodplain management requirements printed volume and on GPO Access. under § 60.3. This includes the requirements that:

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(i) Existing residential structures (7) A revision of floodplain delinea- built in the SFHA have their lowest tions based on fill must demonstrate floor elevated to or above the base that any such fill does not result in a flood; floodway encroachment. (ii) The participating community has (b) New topographic data. A commu- determined that the land and any ex- nity may also follow the procedures de- isting or proposed structures to be re- scribed in paragraphs (a)(1) through (6) moved from the SFHA are ‘‘reasonably of this section to request a map revi- safe from flooding’’, and that they have sion when no physical changes have oc- on file, available upon request by curred in the area of special flood haz- FEMA, all supporting analyses and ard, when no fill has been placed, and documentation used to make that de- when the natural ground elevations are termination; at or above the elevations of the base flood, where new topographic maps are (iii) The participating community more detailed or more accurate than has issued permits for all existing and the current map. proposed construction or other devel- (c) Certification requirements. A reg- opment; and istered professional engineer or li- (iv) All necessary permits have been censed land surveyor must certify the received from those governmental items required in paragraphs (a)(3) and agencies where approval is required by (6) and (b) of this section. Such certifi- Federal, State, or local law. cations are subject to the provisions (5) If the community cannot assure under § 65.2. that it has complied with the appro- (d) Submission procedures. Submit all priate minimum floodplain manage- requests to the appropriate address ment requirements under § 60.3, of this serving the community’s geographic chapter, the map revision request will area or to the FEMA Headquarters Of- be deferred until the community rem- fice in Washington, DC. edies all violations to the maximum [66 FR 22442, May 4, 2001] extent possible through coordination with FEMA. Once the remedies are in § 65.6 Revision of base flood elevation place, and the community assures that determinations. the land and structures are ‘‘reason- (a) General conditions and data require- ably safe from flooding,’’ we will proc- ments. (1) The supporting data must iness a revision to the SFHA using the clude all the information FEMA needs criteria set forth in § 65.5(a). The com- to review and evaluate the request. munity must maintain on file, and This may involve the requestor’s per- make available upon request by FEMA, forming new hydrologic and hydraulic all supporting analyses and docu- analysis and delineation of new flood mentation used in determining that plain boundaries and floodways, as nec- the land or structures are ‘‘reasonably essary. safe from flooding.’’ (2) To avoid discontinuities between (6) Data to substantiate the base the revised and unrevised flood data, flood elevation. If we complete a Flood the necessary hydrologic and hydraulic Insurance Study (FIS), we will use analyses submitted by the map revi- those data to substantiate the base sion requestor must be extensive flood elevation. Otherwise, the commu- enough to ensure that a logical transi- nity may submit data provided by an tion can be shown between the revised authoritative source, such as the U.S. flood elevations, flood plain bound- Army Corps of Engineers, U.S. Geologi- aries, and floodways and those devel- cal Survey, Natural Resources Con- oped previously for areas not affected servation Service, State and local by the revision. Unless it is dem- water resource departments, or tech- onstrated that it would not be appro- nical data prepared and certified by a priate, the revised and unrevised base registered professional engineer. If flood elevations must match within base flood elevations have not pre- one-half foot where such transitions viously been established, we may also occur. request hydrologic and hydraulic cal- (3) Revisions cannot be made based culations. on the effects of proposed projects or

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future conditions. Section 65.8 of this tion of the same recurrence interval(s) subchapter contains provisions for ob- studied in the effective FIS, such as taining conditional approval of pro- the 10-, 50-, 100-, and 500-year flood ele- posed projects that may effect map vations, and of the floodway. Unless changes when they are completed. the basis of the request is the use of an (4) The datum and date of releveling alternative hydraulic methodology or of benchmarks, if any, to which the the requestor can demonstrate that the elevations are referenced must be indi- data of the original hydraulic com- cated. puter model is unavailable or its use is (5) Maps will not be revised when dis- inappropriate, the analysis shall be charges change as a result of the use of made using the same hydraulic com- an alternative methodology or data for puter model used to develop the base computing flood discharges unless the flood elevations shown on the effective change is statistically significant as Flood Insurance Rate Map and updated measured by a confidence limits anal- to show present conditions in the flood ysis of the new discharge estimates. plain. Copies of the input and output (6) Any computer program used to data from the original and revised hy- perform hydrologic or hydraulic anal- draulic analyses shall be submitted. yses in support of a flood insurance (9) A hydrologic or hydraulic analysis map revision must meet all of the fol- for a flooding source without estab- lowing criteria: lished base flood elevations may be (i) It must have been reviewed and performed for only the 100-year flood. accepted by a governmental agency re- (10) A revision of flood plain delinea- sponsible for the implementation of tions based on topographic changes programs for flood control and/or the must demonstrate that any topo- regulation of flood plain lands. For graphic changes have not resulted in a computer programs adopted by non- floodway encroachment. Federal agencies, certification by a re- (11) Delineations of flood plain sponsible agency official must be pro- boundaries for a flooding source with vided which states that the program established base flood elevations must has been reviewed, tested, and accepted provide both the 100- and 500-year flood by that agency for purposes of design plain boundaries. For flooding sources of flood control structures or flood without established base flood ele- plain land use regulation. vations, only 100-year flood plain (ii) It must be well-documented in- boundaries need be submitted. These cluding source codes and user’s manu- boundaries should be shown on a topo- als. graphic map of suitable scale and con- (iii) It must be available to FEMA tour interval. and all present and future parties im- (12) If a community or other party pacted by flood insurance mapping de- seeks recognition from FEMA, on its veloped or amended through the use of FHBM or FIRM, that an altered or re- the program. For programs not gen- located portion of a watercourse pro- erally available from a Federal agency, vides protection from, or mitigates po- the source code and user’s manuals tential hazards of, the base flood, the must be sent to FEMA free of charge, Administrator may request specific with fully-documented permission from documentation from the community the owner that FEMA may release the certifying that, and describing how, code and user’s manuals to such im- the provisions of § 60.3(b)(7) of this sub- pacted parties. chapter will be met for the particular (7) A revised hydrologic analysis for watercourse involved. This documenta- flooding sources with established base tion, which may be in the form of a flood elevations must include evalua- written statement from the Commu- tion of the same recurrence interval(s) nity Chief Executive Officer, an ordi- studied in the effective FIS, such as nance, or other legislative action, shall the 10-, 50-, 100-, and 500-year flood dis- describe the nature of the maintenance charges. activities to be performed, the fre- (8) A revised hydraulic analysis for a quency with which they will be per- flooding source with established base formed, and the title of the local com- flood elevations must include evalua- munity official who will be responsible

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for assuring that the maintenance ac- (b) Data requirements for correcting tivities are accomplished. map errors. To correct errors in the (13) Notwithstanding any other provi- original flood analysis, technical data sions of § 65.6, a community may sub- submissions shall include the fol- mit, in lieu of the documentation spec- lowing: ified in § 65.6(a)(12), certification by a (1) Data identifying mathematical er- registered professional engineer that rors. the project has been designed to retain (2) Data identifying measurement er- its flood carrying capacity without rors and providing correct measure- periodic maintenance. ments. (14) The participating community (c) Data requirements for changed must provide written assurance that physical conditions. Revisions based on they have complied with the appro- the effects of physical changes that priate minimum floodplain manage- have occurred in the flood plain shall ment requirements under § 60.3 of this include: chapter. This includes the require- (1) Changes affecting hydrologic condi- ments that: tions. The following data must be sub- (i) Existing residential structures mitted: built in the SFHA have their lowest (i) General description of the changes floor elevated to or above the base (e.g., dam, diversion channel, or detention basin). flood; (ii) Construction plans for as-built (ii) The participating community has conditions, if applicable. determined that the land and any ex- (iii) New hydrologic analysis ac- isting or proposed structures to be re- counting for the effects of the changes. moved from the SFHA are ‘‘reasonably (iv) New hydraulic analysis and pro- safe from flooding,’’ and that they have files using the new flood discharge val- on file, available upon request by ues resulting from the hydrologic anal- FEMA, all supporting analyses and ysis. documentation used to make that de- (v) Revised delineations of the flood termination; plain boundaries and floodway. (iii) The participating community (2) Changes affecting hydraulic condi- has issued permits for all existing and tions. The following data shall be sub- proposed construction or other devel- mitted: opment; and (i) General description of the changes (iv) All necessary permits have been (e.g., channelization or new bridge, cul- received from those governmental vert, or levee). agencies where approval is required by (ii) Construction plans for as-built Federal, State, or local law. conditions. (15) If the community cannot assure (iii) New hydraulic analysis and flood that it has complied with the appro- elevation profiles accounting for the priate minimum floodplain manage- effects of the changes and using the ment requirements under § 60.3, of this original flood discharge values upon chapter the map revision request will which the original map is based. be deferred until the community rem- (iv) Revised delineations of the flood edies all violations to the maximum plain boundaries and floodway. extent possible through coordination (3) Changes involving topographic con- with FEMA. Once the remedies are in ditions. The following data shall be sub- place, and the community assures that mitted: the land and structures are ‘‘reason- (i) General description of the changes ably safe from flooding,’’ we will proc- (e.g., grading or filling). ess a revision to the SFHA using the (ii) New topographic information, criteria set forth under § 65.6. The com- such as spot elevations, cross sections munity must maintain on file, and grading plans, or contour maps. make available upon request by FEMA, (iii) Revised delineations of the flood all supporting analyses and docu- plain boundaries and, if necessary, mentation used in determining that floodway. the land or structures are ‘‘reasonably (d) Data requirements for incorporating safe from flooding.’’ improved data. Requests for revisions

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based on the use of improved hydro- appropriate payment, in accordance logic, hydraulic, or topographic data with 44 CFR part 72. shall include the following data: [51 FR 30314, Aug. 25, 1986, as amended at 53 (1) Data that are believed to be better FR 16279, May 6, 1988; 54 FR 33550, Aug. 15, than those used in the original analysis 1989; 61 FR 46331, Aug. 30, 1996; 62 FR 5736, (such as additional years of stream Feb. 6, 1997; 66 FR 22442, May 4, 2001] gage data). § 65.7 Floodway revisions. (2) Documentation of the source of the data. (a) General. Floodway data is devel- (3) Explanation as to why the use of oped as part of FEMA Flood Insurance Studies and is utilized by communities the new data will improve the results to select and adopt floodways as part of of the original analysis. the flood plain management program (4) Revised hydrologic analysis where required by § 60.3 of this subchapter. hydrologic data are being incorporated. When it has been determined by a com- (5) Revised hydraulic analysis and munity that no practicable alter- flood elevation profiles where new hy- natives exist to revising the boundaries drologic or hydraulic data are being in- of its previously adopted floodway, the corporated. procedures below shall be followed. (6) Revised delineations of the flood (b) Data requirements when base flood plain boundaries and floodway where elevation changes are requested. When a new hydrologic, hydraulic, or topo- floodway revision is requested in asso- graphic data are being incorporated. ciation with a change to base flood ele- (e) Data requirements for incorporating vations, the data requirements of § 65.6 improved methods. Requests for revi- shall also be applicable. In addition, sions based on the use of improved hy- the following documentation shall be drologic or hydraulic methodology submitted: shall include the following data: (1) Copy of a public notice distributed by the community stating the commu- (1) New hydrologic analysis when an nity’s intent to revise the floodway or alternative hydrologic methodology is a statement by the community that it being proposed. has notified all affected property own- (2) New hydraulic analysis and flood ers and affected adjacent jurisdictions. elevation profiles when an alternative (2) Copy of a letter notifying the ap- hyrologic or hydraulic methodology is propriate State agency of the floodway being proposed. revision when the State has jurisdic- (3) Explanation as to why the alter- tion over the floodway or its adoption native methodologies are superior to by communities participating in the the original methodologies. NFIP. (4) Revised delineations of the flood (3) Documentation of the approval of plain boundaries and floodway based on the revised floodway by the appro- the new analysis(es). priate State agency (for communities (f) Certification requirements. All anal- where the State has jurisdiction over ysis and data submitted by the re- the floodway or its adoption by com- quester shall be certified by a reg- munities participating in the NFIP). (4) Engineering analysis for the re- istered professional engineer or li- vised floodway, as described below: censed land surveyor, as appropriate, (i) The floodway analysis must be subject to the definition of ‘‘certifi- performed using the hydraulic com- cation’’ given at § 65.2 of this sub- puter model used to determine the pro- chapter. posed base flood elevations. (g) Submission procedures. All requests (ii) The floodway limits must be set shall be submitted to the FEMA Re- so that neither the effective base flood gional Office servicing the commu- elevations nor the proposed base flood nity’s geographic area or to the FEMA elevations if less than the effective Headquarters Office in Washington, base flood elevations, are increased by DC, and shall be accompanied by the more than the amount specified under

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§ 60.3 (d)(2). Copies of the input and out- (e) Submission procedures. All requests put data from the original and modi- that involve changes to floodways shall fied computer models must be sub- be submitted to the appropriate FEMA mitted. Regional Office servicing the commu- (5) Delineation of the revised nity’s geographic area. floodway on the same topographic map [51 FR 30315, Aug. 25, 1986] used for the delineation of the revised flood boundaries. § 65.8 Review of proposed projects. (c) Data requirements for changes not A community, or an individual associated with base flood elevation through the community, may request changes. The following data shall be submitted: FEMA’s comments on whether a pro- (1) Items described in paragraphs (b) posed project, if built as proposed, (1) through (3) of this section must be would justify a map revision. FEMA’s submitted. comments will be issued in the form of (2) Engineering analysis for the re- a letter, termed a Conditional Letter of vised floodway, as described below: Map Revision, in accordance with 44 (i) The original hydraulic computer CFR part 72. The data required to sup- model used to develop the established port such requests are the same as base flood elevations must be modified those required for final revisions under to include all encroachments that have §§ 65.5, 65.6, and 65.7, except as-built cer- occurred in the flood plain since the ex- tification is not required. All such re- isting floodway was developed. If the quests shall be submitted to the FEMA original hydraulic computer model is Headquarters Office in Washington, not available, an alternate hydraulic DC, and shall be accompanied by the computer model may be used provided appropriate payment, in accordance the alternate model has been cali- with 44 CFR part 72. brated so as to reproduce the original [62 FR 5736, Feb. 6, 1997] water surface profile of the original hydraulic computer model. The alternate § 65.9 Review and response by the Ad- model must be then modified to in- ministrator. clude all encroachments that have oc- If any questions or problems arise curred since the existing floodway was during review, FEMA will consult the developed. Chief Executive Officer of the commu- (ii) The floodway analysis must be nity (CEO), the community official des- performed with the modified computer ignated by the CEO, and/or the re- model using the desired floodway lim- quester for resolution. Upon receipt of its. a revision request, the Administrator (iii) The floodway limits must be set shall mail an acknowledgment of reso that combined effects of the past en- ceipt of such request to the CEO. With- croachments and the new floodway in 90 days of receiving the request with limits do not increase the effective all necessary information, the Admin- base flood elevations by more than the istrator shall notify the CEO of one or amount specified in § 60.3(d)(2). Copies more of the following: of the input and output data from the (a) The effective map(s) shall not be original and modified computer models modified; must be submitted. (b) The base flood elevations on the (3) Delineation of the revised effective FIRM shall be modified and floodway on a copy of the effective new base flood elevations shall be es- NFIP map and a suitable topographic tablished under the provisions of part map. 67 of this subchapter; (d) Certification requirements. All anal- (c) The changes requested are ap- yses submitted shall be certified by a proved and the map(s) amended by Let- registered professional engineer. All ter of Map Revision (LOMR); topographic data shall be certified by a (d) The changes requested are ap- registered professional engineer or li- proved and a revised map(s) will be censed land surveyor. Certifications printed and distributed; are subject to the definition given at (e) The changes requested are not of § 65.2 of this subchapter. such a significant nature as to warrant

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a reissuance or revision of the flood in- (1) Freeboard. (i) Riverine levees must surance study or maps and will be de- provide a minimum freeboard of three ferred until such time as a significant feet above the water-surface level of change occurs; the base flood. An additional one foot (f) An additional 90 days is required above the minimum is required within to evaluate the scientific or technical 100 feet in either side of structures data submitted; or (such as bridges) riverward of the levee (g) Additional data are required to or wherever the flow is constricted. An support the revision request. additional one-half foot above the min- (h) The required payment has not imum at the upstream end of the levee, been submitted in accordance with 44 tapering to not less than the minimum CFR part 72, no review will be con- at the downstream end of the levee, is ducted and no determination will be also required. issued until payment is received. (ii) Occasionally, exceptions to the [51 FR 30315, Aug. 25, 1986; 61 FR 46331, Aug. minimum riverine freeboard require- 30, 1996, as amended at 62 FR 5736, Feb. 6, ment described in paragraph (b)(1)(i) of 1997] this section, may be approved. Appro- priate engineering analyses dem- § 65.10 Mapping of areas protected by onstrating adequate protection with a levee systems. lesser freeboard must be submitted to (a) General. For purposes of the NFIP, support a request for such an excep- FEMA will only recognize in its flood tion. The material presented must hazard and risk mapping effort those evaluate the uncertainty in the esti- levee systems that meet, and continue mated base flood elevation profile and to meet, minimum design, operation, include, but not necessarily be limited and maintenance standards that are to an assessment of statistical con- consistent with the level of protection fidence limits of the 100-year discharge; sought through the comprehensive changes in stage-discharge relation- flood plain management criteria estab- ships; and the sources, potential, and lished by § 60.3 of this subchapter. Ac- magnitude of debris, sediment, and ice cordingly, this section describes the accumulation. It must be also shown types of information FEMA needs to that the levee will remain structurally recognize, on NFIP maps, that a levee stable during the base flood when such system provides protection from the additional loading considerations are base flood. This information must be imposed. Under no circumstances will supplied to FEMA by the community freeboard of less than two feet be ac- or other party seeking recognition of cepted. such a levee system at the time a flood (iii) For coastal levees, the freeboard risk study or restudy is conducted, must be established at one foot above when a map revision under the provi- the height of the one percent wave or sions of part 65 of this subchapter is the maximum wave runup (whichever sought based on a levee system, and is greater) associated with the 100-year upon request by the Administrator dur- stillwater surge elevation at the site. ing the review of previously recognized (iv) Occasionally, exceptions to the structures. The FEMA review will be minimum coastal levee freeboard re- for the sole purpose of establishing ap- quirement described in paragraph propriate risk zone determinations for (b)(1)(iii) of this section, may be ap- NFIP maps and shall not constitute a proved. Appropriate engineering anal- determination by FEMA as to how a yses demonstrating adequate protec- structure or system will perform in a tion with a lesser freeboard must be flood event. submitted to support a request for such (b) Design criteria. For levees to be an exception. The material presented recognized by FEMA, evidence that must evaluate the uncertainty in the adequate design and operation and estimated base flood loading condi- maintenance systems are in place to tions. Particular emphasis must be provide reasonable assurance that pro- placed on the effects of wave attack tection from the base flood exists must and overtopping on the stability of the be provided. The following require- levee. Under no circumstances, how- ments must be met: ever, will a freeboard of less than two

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feet above the 100-year stillwater surge tential and magnitude of future losses elevation be accepted. of freeboard as a result of levee settle- (2) Closures. All openings must be pro- ment and demonstrate that freeboard vided with closure devices that are will be maintained within the min- structural parts of the system during imum standards set forth in paragraph operation and design according to (b)(1) of this section. This analysis sound engineering practice. must address embankment loads, com- (3) Embankment protection. Engineer- pressibility of embankment soils, coming analyses must be submitted that pressibility of foundation soils, age of demonstrate that no appreciable ero- the levee system, and construction sion of the levee embankment can be compaction methods. In addition, de- expected during the base flood, as a re- tailed settlement analysis using proce- sult of either currents or waves, and dures such as those described in the that anticipated erosion will not result COE manual, ‘‘Soil Mechanics Design— in failure of the levee embankment or Settlement Analysis’’ (EM 1100–2–1904) foundation directly or indirectly must be submitted. through reduction of the seepage path (6) Interior drainage. An analysis must and subsequent instability. The factors be submitted that identifies the to be addressed in such analyses in- source(s) of such flooding, the extent of clude, but are not limited to: Expected the flooded area, and, if the average flow velocities (especially in con- depth is greater than one foot, the stricted areas); expected wind and wave water-surface elevation(s) of the base action; ice loading; impact of debris; flood. This analysis must be based on slope protection techniques; duration the joint probability of interior and ex- of flooding at various stages and ve- terior flooding and the capacity of fa- locities; embankment and foundation cilities (such as drainage lines and materials; levee alignment, bends, and pumps) for evacuating interior flood- transitions; and levee side slopes. waters. (4) Embankment and foundation stability. Engineering analyses that evalu- (7) Other design criteria. In unique sit- ate levee embankment stability must uations, such as those where the levee be submitted. The analyses provided system has relatively high vulner- shall evaluate expected seepage during ability, FEMA may require that other loading conditions associated with the design criteria and analyses be sub- base flood and shall demonstrate that mitted to show that the levees provide seepage into or through the levee foun- adequate protection. In such situa- dation and embankment will not jeop- tions, sound engineering practice will ardize embankment or foundation sta- be the standard on which FEMA will bility. An alternative analysis dem- base its determinations. FEMA will onstrating that the levee is designed also provide the rationale for requiring and constructed for stability against this additional information. loading conditions for Case IV as de- (c) Operation plans and criteria. For a fined in the U.S. Army Corps of Engi- levee system to be recognized, the neers (COE) manual, ‘‘Design and Con- operational criteria must be as destruction of Levees’’ (EM 1110–2–1913, scribed below. All closure devices or Chapter 6, Section II), may be used. mechanical systems for internal drain- The factors that shall be addressed in age, whether manual or automatic, the analyses include: Depth of flooding, must be operated in accordance with duration of flooding, embankment ge- an officially adopted operation manual, ometry and length of seepage path at a copy of which must be provided to critical locations, embankment and FEMA by the operator when levee or foundation materials, embankment drainage system recognition is being compaction, penetrations, other design sought or when the manual for a pre- factors affecting seepage (such as viously recognized system is revised in drainage layers), and other design fac- any manner. All operations must be tors affecting embankment and founda- under the jurisdiction of a Federal or tion stability (such as berms). State agency, an agency created by (5) Settlement. Engineering analyses Federal or State law, or an agency of a must be submitted that assess the po- community participating in the NFIP.

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(1) Closures. Operation plans for clo- (d) Maintenance plans and criteria. For sures must include the following: levee systems to be recognized as pro- (i) Documentation of the flood warn- viding protection from the base flood, ing system, under the jurisdiction of the maintenance criteria must be as Federal, State, or community officials, described herein. Levee systems must that will be used to trigger emergency be maintained in accordance with an operation activities and demonstration officially adopted maintenance plan, that sufficient flood warning time ex- and a copy of this plan must be pro- ists for the completed operation of all vided to FEMA by the owner of the closure structures, including necessary levee system when recognition is being sealing, before floodwaters reach the sought or when the plan for a pre- base of the closure. viously recognized system is revised in (ii) A formal plan of operation in- any manner. All maintenance activi- cluding specific actions and assign- ties must be under the jurisdiction of a ments of responsibility by individual Federal or State agency, an agency name or title. created by Federal or State law, or an (iii) Provisions for periodic oper- agency of a community participating ation, at not less than one-year inter- in the NFIP that must assume ulti- vals, of the closure structure for test- mate responsibility for maintenance. ing and training purposes. This plan must document the formal (2) Interior drainage systems. Interior procedure that ensures that the sta- drainage systems associated with levee bility, height, and overall integrity of systems usually include storage areas, the levee and its associated structures gravity outlets, pumping stations, or a combination thereof. These drainage and systems are maintained. At a min- systems will be recognized by FEMA on imum, maintenance plans shall specify NFIP maps for flood protection pur- the maintenance activities to be per- poses only if the following minimum formed, the frequency of their perform- criteria are included in the operation ance, and the person by name or title plan: responsible for their performance. (i) Documentation of the flood warn- (e) Certification requirements. Data ing system, under the jurisdiction of submitted to support that a given levee Federal, State, or community officials, system complies with the structural that will be used to trigger emergency requirements set forth in paragraphs operation activities and demonstration (b)(1) through (7) of this section must that sufficient flood warning time ex- be certified by a registered professional ists to permit activation of mechanized engineer. Also, certified as-built plans portions of the drainage system. of the levee must be submitted. Certifi- (ii) A formal plan of operation in- cations are subject to the definition cluding specific actions and assign- given at § 65.2 of this subchapter. In ments of responsibility by individual lieu of these structural requirements, a name or title. Federal agency with responsibility for (iii) Provision for manual backup for levee design may certify that the levee the activation of automatic systems. has been adequately designed and con- (iv) Provisions for periodic inspection structed to provide protection against of interior drainage systems and peri- the base flood. odic operation of any mechanized portions for testing and training purposes. [51 FR 30316, Aug. 25, 1986] No more than one year shall elapse between either the inspections or the op- § 65.11 Evaluation of sand dunes in mapping coastal flood hazard areas. erations. (3) Other operation plans and criteria. (a) General conditions. For purposes of Other operating plans and criteria may the NFIP, FEMA will consider storm- be required by FEMA to ensure that induced dune erosion potential in its adequate protection is provided in spe- determination of coastal flood hazards cific situations. In such cases, sound and risk mapping efforts. The criterion emergency management practice will to be used in the evaluation of dune be the standard upon which FEMA de- erosion will apply to primary frontal terminations will be based. dunes as defined in § 59.1, but does not

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apply to artificially designed and con- within and outside of the community, structed dunes that are not well-estab- explaining the impact of the proposed lished with long-standing vegetative action on their property. cover, such as the placement of sand (4) Concurrence of the Chief Execu- materials in a dune-like formation. tive Officer of any other communities (b) Evaluation criterion. Primary fron- impacted by the proposed actions; tal dunes will not be considered as ef- (5) Certification that no structures fective barriers to base flood storm are located in areas which would be im- surges and associated wave action pacted by the increased base flood ele- where the cross-sectional area of the vation; primary frontal dune, as measured per- (6) A request for revision of base pendicular to the shoreline and above flood elevation determination accord- the 100-year stillwater flood elevation ing to the provisions of § 65.6 of this and seaward of the dune crest, is equal part; to, or less than, 540 square feet. (7) A request for floodway revision in (c) Exceptions. Exceptions to the eval- accordance with the provisions of § 65.7 uation criterion may be granted where of this part; it can be demonstrated through au- (b) Upon receipt of the Administra- thoritative historical documentation tor’s conditional approval of map that the primary frontal dunes at a change and prior to approving the pro- specific site withstood previous base posed encroachments, a community flood storm surges and associated wave shall provide evidence to the Adminis- action. trator of the adoption of flood plain management ordinances incorporating [53 FR 16279, May 6, 1988] the increased base flood elevations and/ § 65.12 Revision of flood insurance or revised floodway reflecting the post- rate maps to reflect base flood ele- project condition. vations caused by proposed en- (c) Upon completion of the proposed croachments. encroachments, a community shall (a) When a community proposes to provide as-built certifications in ac- permit encroachments upon the flood cordance with the provisions of § 65.3 of plain when a regulatory floodway has this part. The Administrator will ini- not been adopted or to permit en- tiate a final map revision upon receipt croachments upon an adopted regu- of such certifications in accordance latory floodway which will cause base with part 67 of this subchapter. flood elevation increases in excess of [53 FR 16279, May 6, 1988] those permitted under paragraphs (c)(10) or (d)(3) of § 60.3 of this sub- § 65.13 Mapping and map revisions for chapter, the community shall apply to areas subject to alluvial fan flood- the Administrator for conditional ap- ing. proval of such action prior to permit- This section describes the procedures ting the encroachments to occur and to be followed and the types of infor- shall submit the following as part of its mation FEMA needs to recognize on a application: NFIP map that a structural flood con- (1) A request for conditional approval trol measure provides protection from of map change and the appropriate ini- the base flood in an area subject to al- tial fee as specified by § 72.3 of this sub- luvial fan flooding. This information chapter or a request for exemption must be supplied to FEMA by the com- from fees as specified by § 72.5 of this munity or other party seeking recogni- subchapter, whichever is appropriate; tion of such a flood control measure at (2) An evaluation of alternatives the time a flood risk study or restudy which would not result in a base flood is conducted, when a map revision elevation increase above that per- under the provisions of part 65 of this mitted under paragraphs (c)(10) or subchapter is sought, and upon request (d)(3) of § 60.3 of this subchapter dem- by the Administrator during the review onstrating why these alternatives are of previously recognized flood control not feasible; measures. The FEMA review will be for (3) Documentation of individual legal the sole purpose of establishing appro- notice to all impacted property owners priate risk zone determinations for

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NFIP maps and shall not constitute a (4) Engineering analyses or evidence determination by FEMA as to how the showing that the measures will provide flood control measure will perform in a protection from hazards associated flood event. with the possible relocation of flow (a) The applicable provisions of paths from other parts of the fan. §§ 65.2, 65.3, 65.4, 65.6, 65.8 and 65.10 shall (5) Engineering analyses that assess also apply to FIRM revisions involving the effect of the project on flood haz- alluvial fan flooding. ards, including depth and velocity of (b) The provisions of § 65.5 regarding floodwaters and scour and sediment map revisions based on fill and the pro- deposition, on other areas of the fan. visions of part 70 of this chapter shall (6) Engineering analyses dem- not apply to FIRM revisions involving onstrating that flooding from scources alluvial fan flooding. In general, ele- other than the fan apex, including local vations of a parcel of land or a struc- runoff, is either insignificant or has ture by fill or other means, will not been accounted for in the design. serve as a basis for removing areas sub- (d) Coordination. FEMA will recognize ject to alluvial fan flooding from an measures that are adequately designed area of special food hazards. and constructed, provided that: evi- (c) FEMA will credit on NFIP maps dence is submitted to show that the only major structural flood control impact of the measures on flood haz- measures whose design and construc- ards in all areas of the fan (including tion are supported by sound engineer- those not protected by the flood con- ing analyses which demonstrate that trol measures), and the design and the measures will effectively eliminate maintenance requirements of the alluvial fan flood hazards from the area measures, were reviewed and approved protected by such measures. The pro- by the impacted communities, and also vided analyses must include, but are by State and local agencies that have not necessarily limited to, the fol- jurisdiction over flood control activi- lowing: ties. (1) Engineering analyses that quan- (e) Operation and maintenance plans tify the discharges and volumes of and criteria. The requirements for oper- water, debris, and sediment movement ation and maintenance of flood control associated with the flood that has a measures on areas subject to alluvial one-percent probability of being ex- fan flooding shall be those specified ceeded in any year at the apex under under § 65.10, paragraphs (c) and (d), current watershed conditions and when applicable. under potential adverse conditions (f) Certification requirements. Data (e.g., deforestation of the watershed by submitted to support that a given flood fire). The potential for debris flow and control measure complies with the re- sediment movement must be assessed quirements set forth in paragraphs (c) using an engineering method accept- (1) through (6) of this section must be able to FEMA. The assessment should certified by a registered professional consider the characteristics and avail- engineer. Also, certified as-built plans ability of sediment in the drainage of the flood control measures must be basin above the apex and on the allu- submitted. Certifications are subject to vial fan. the definition given at § 65.2. (2) Engineering analyses showing (Approved by the Office of Management and that the measures will accommodate Budget under control number 3067–0147.) the estimated peak discharges and vol- [54 FR 33551, Aug. 15, 1989] umes of water, debris, and sediment, as determined in accordance with para- §65.14 Remapping of areas for which graph (c)(1) of this section, and will local flood protection systems no withstand the associated hydro- longer provide base flood protec- dynamic and hydrostatic forces. tion. (3) Engineering analyses showing (a) General. (1) This section describes that the measures have been designed the procedures to follow and the types to withstand the potential erosion and of information FEMA requires to des- scour associated with estimated dis- ignate flood control restoration zones. charges. A community may be eligible to apply

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for this zone designation if the Admin- not eligible for the provisions of §61.12. istrator determines that it is engaged The designated restoration period may in the process of restoring a flood pro- not be extended beyond the maximum tection system that was: allowable under this limitation. (i) Constructed using Federal funds; (c) Exclusions. The provisions of these (ii) Recognized as providing base regulations do not apply in a coastal flood protection on the community’s high hazard area as defined in 44 CFR effective FIRM; and 59.1, including areas that would be sub- (iii) Decertified by a Federal agency ject to coastal high hazards as a result responsible for flood protection design of the decertification of a flood protec- or construction. tion system shown on the community’s (2) Where the Administrator deter- effective FIRM as providing base flood mines that a community is in the proc- protection. ess of restoring its flood protection (d) Effective date for risk premium system to provide base flood protec- rates. The effective date for any risk tion, a FIRM will be prepared that des- premium rates established for Zone AR ignates the temporary flood hazard shall be the effective date of the re- areas as a flood control restoration vised FIRM showing Zone AR designa- zone (Zone AR). Existing special flood tions. hazard areas shown on the commu- (e) Application and submittal require- nity’s effective FIRM that are further ments for designation of a flood control inundated by Zone AR flooding shall be restoration zone. A community must designated as a ‘‘dual’’ flood insurance submit a written request to the Admin- rate zone, Zone AR/AE or AR/AH with istrator, signed by the community’s Zone AR base flood elevations, and AE Chief Executive Officer, for a flood or AH with base flood elevations and plain designation as a flood control res- Zone AR/AO with Zone AR base flood toration zone. The request must in- elevations and Zone AO with flood clude a legislative action by the com- depths, or Zone AR/A with Zone AR munity requesting the designation. base flood elevations and Zone A without base flood elevations. The Administrator will not initiate (b) Limitations. A community may any action to designate flood control have a flood control restoration zone restoration zones without receipt of designation only once while restoring a the formal request from the commu- flood protection system. This limita- nity that complies with all require- tion does not preclude future flood con- ments of this section. The Adminis- trol restoration zone designations trator reserves the right to request ad- should a fully restored, certified, and ditional information from the commu- accredited system become decertified nity to support or further document for a second or subsequent time. the community’s formal request for (1) A community that receives Fed- designation of a flood control restora- eral funds for the purpose of designing tion zone, if deemed necessary. or constructing, or both, the restora- (1) At a minimum, the request from a tion project must complete restoration community that receives Federal funds or meet the requirements of 44 CFR for the purpose of designing, con- 61.12 within a specified period, not to structing, or both, the restoration exceed a maximum of 10 years from the project must include: date of submittal of the community’s (i) A statement whether, to the best application for designation of a flood of the knowledge of the community’s control restoration zone. Chief Executive Officer, the flood pro- (2) A community that does not re- tection system is currently the subject ceive Federal funds for the purpose of matter of litigation before any Fed- constructing the restoration project eral, State or local court or adminis- must complete restoration within a trative agency, and if so, the purpose of specified period, not to exceed a max- that litigation; imum of 5 years from the date of sub- (ii) A statement whether the commu- mittal of the community’s application nity has previously requested a deter- for designation of a flood control res- mination with respect to the same sub- toration zone. Such a community is ject matter from the Administrator,

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and if so, a statement that details the tion system is restorable to a level of disposition of such previous request; base flood protection. (iii) A statement from the commu- (viii) A joint statement from the nity and certification by a Federal Federal agency responsible for flood agency responsible for flood protection protection design or construction in- design or construction that the exist- volved in restoration of the flood pro- ing flood control system shown on the tection system and the local project effective FIRM was originally built sponsor certifying that the design and using Federal funds, that it no longer construction of the flood control sys- provides base flood protection, but that tem involves Federal funds, and that it continues to provide protection from the restoration of the flood protection the flood having at least a 3-percent system will provide base flood protec- chance of occurrence during any given tion; year; (2) At a minimum, the request from a (iv) An official map of the commu- community that receives no Federal nity or legal description, with sup- funds for the purpose of constructing porting documentation, that the com- the restoration project must: munity will adopt as part of its flood (i) Meet the requirements of plain management measures, which §65.14(e)(1)(i) through (iv); designates developed areas as defined (ii) Include a restoration plan to rein §59.1 and as further defined in turn the system to a level of base flood §60.3(f). protection. At a minimum, this plan must: (v) A restoration plan to return the (A) List all important project ele- system to a level of base flood protec- ments, such as acquisition of permits, tion. At a minimum, this plan must: approvals, and contracts and construc- (A) List all important project ele- tion schedules of planned features; ments, such as acquisition of permits, (B) Identify anticipated start and approvals, and contracts and construc- completion dates for each element, as tion schedules of planned features; well as significant milestones and (B) Identify anticipated start and dates; and completion dates for each element, as (C) Identify the date on which ‘‘as well as significant milestones and built’’ drawings and certification for dates; the completed restoration project will (C) Identify the date on which ‘‘as be submitted. This date must provide built’’ drawings and certification for for a restoration period not to exceed the completed restoration project will the maximum allowable restoration pe- be submitted. This date must provide riod for the flood protection system; for a restoration period not to exceed (iii) Include a statement identifying the maximum allowable restoration pe- the local agency responsible for res- riod for the flood protection system, toration of the flood protection sys- or; tem; (D) Identify the date on which the (iv) Include a copy of a study, cer- community will submit a request for a tified by registered Professional Engi- finding of adequate progress that meets neer, that demonstrates that the flood all requirements of §61.12. This date protection system is restorable to pro- may not exceed the maximum allow- vide protection from the base flood; able restoration period for the flood (v) Include a statement from the protection system; local agency responsible for restora- (vi) A statement identifying the local tion of the flood protection system cer- project sponsor responsible for restora- tifying that the restored flood protection of the flood protection system; tion system will meet the applicable (vii) A copy of a study, performed by requirements of Part 65; and a Federal agency responsible for flood (vi) Include a statement from the protection design or construction in local agency responsible for restora- consultation with the local project tion of the flood protection system sponsor, which demonstrates a Federal that identifies the source of funds for interest in restoration of the system the purpose of constructing the res- and which deems that the flood protec- toration project and a percentage of

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the total funds contributed by each cy as providing base flood protection, source. The statement must dem- and reviewed by FEMA, FEMA will re- onstrate, at a minimum, that 100 per- vise the FIRM to reflect the completed cent of the total financial project cost flood control system. of the completed flood protection sys- (3) A community that receives no tem has been appropriated. Federal funds for the purpose of con- (f) Review and response by the Adminis- structing the restoration project must trator. The review and response by the provide written evidence that the re- Administrator shall be in accordance stored flood protection system meets with procedures specified in § 65.9. the requirements of Part 65. A commu- (g) Requirements for maintaining des- nity that receives no Federal funds for ignation of a flood control restoration the purpose of constructing the res- zone. During the restoration period, the toration project is not eligible for a community and the cost-sharing Fed- finding of adequate progress under eral agency, if any, must certify annu- §61.12. ally to the FEMA Regional Office hav- (4) After the improvements have been ing jurisdiction that the restoration completed and reviewed by FEMA, will be completed in accordance with FEMA will revise the FIRM to reflect the restoration plan within the time the completed flood protection system. period specified by the plan. In addi- (i) Procedures for removing flood con- tion, the community and the cost-shar- trol restoration zone designation due to ing Federal agency, if any, will update non-compliance with the restoration the restoration plan and will identify schedule or as a result of a finding that any permitting or construction prob- satisfactory progress is not being made to lems that will delay the project com- complete the restoration. At any time pletion from the restoration plan pre- during the restoration period, should viously submitted to the Adminis- the Administrator determine that the trator. The FEMA Regional Office hav- restoration will not be completed in ing jurisdiction will make an annual accordance with the time frame speci- assessment and recommendation to the fied in the restoration plan, or that Administrator as to the viability of the satisfactory progress is not being made restoration plan and will conduct peri- to restore the flood protection system odic on-site inspections of the flood to provide complete flood protection in protection system under restoration. accordance with the restoration plan, (h) Procedures for removing flood con- the Administrator shall notify the trol restoration zone designation due to community and the responsible Fed- adequate progress or complete restoration eral agency, in writing, of the deter- of the flood protection system. At any mination, the reasons for that deter- time during the restoration period: mination, and that the FIRM will be (1) A community that receives Fed- revised to remove the flood control res- eral funds for the purpose of designing, toration zone designation. Within thir- constructing, or both, the restoration ty (30) days of such notice, the commu- project shall provide written evidence nity may submit written information of certification from a Federal agency that provides assurance that the res- having flood protection design or con- toration will be completed in accord- struction responsibility that the nec- ance with the time frame specified in essary improvements have been com- the restoration plan, or that satisfac- pleted and that the system has been re- tory progress is being made to restore stored to provide protection from the complete protection in accordance base flood, or submit a request for a with the restoration plan, or that, with finding of adequate progress that meets reasonable certainty, the restoration all requirements of §61.12. If the Ad- will be completed within the maximum ministrator determines that adequate allowable restoration period. On the progress has been made, FEMA will re- basis of this information the Adminis- vise the zone designation from a flood trator may suspend the decision to re- control restoration zone designation to vise the FIRM to remove the flood con- Zone A99. trol restoration zone designation. If (2) After the improvements have been the community does not submit any in- completed, certified by a Federal agen- formation, or if, based on a review of

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the information submitted, there is insurance is available. Use of this form sufficient cause to find that the res- will ensure that required flood insur- toration will not be completed as pro- ance coverage is purchased for struc- vided for in the restoration plan, the tures located in an SFHA, and will as- Administrator shall revise the FIRM, sist federal entities for lending regula- in accordance with 44 CFR Part 67, and tion in assuring compliance with these shall remove the flood control restora- purchase requirements. tion zone designations and shall redes- (b) The form is available by written ignate those areas as Zone A1–30, AE, request to Federal Emergency Manage- AH, AO, or A. ment Agency, PO Box 2012, Jessup, MD [62 FR 55717, Oct. 27, 1997] 20794; ask for the Standard Flood Haz- ard Determination form. It is also § 65.15 List of communities submitting available by fax-on-demand; call (202) new technical data. 646–3362, form #23103. Finally, the form This section provides a cumulative is available through the Internet at list of communities where modifica- http://www.fema.gov/nfip/mpurfi.htm. tions of the base flood elevation deter- [63 FR 27857, May 21, 1998] minations have been made because of submission of new scientific or tech- § 65.17 Review of determinations. nical data. Due to the need for expe- diting the modifications, the revised This section describes the procedures map is already in effect and the appeal that shall be followed and the types of period commences on or about the ef- information required by FEMA to re- fective date of the modified map. An view a determination of whether a interim rule, followed by a final rule, building or manufactured home is lo- will list the revised map effective date, cated within an identified Special local repository and the name and ad- Flood Hazard Area (SFHA). dress of the Chief Executive Officer of (a) General conditions. The borrower the community. The map(s) is (are) ef- and lender of a loan secured by im- fective for both flood plain manage- proved real estate or a manufactured ment and insurance purposes. home may jointly request that FEMA review a determination that the build- [51 FR 30317, Aug. 25, 1986. Redesignated at 53 ing or manufactured home is located in FR 16279, May 6, 1988, and further redesig- an identified SFHA. Such a request nated at 54 FR 33551, Aug. 15, 1989. Redesig- nated at 59 FR 53599, Oct. 25, 1994] must be submitted within 45 days of the lender’s notification to the bor- EDITORIAL NOTE: For references to FR rower that the building or manufac- pages showing lists of eligible communities, tured home is in the SFHA and that see the List of CFR Sections Affected, which appears in the Finding Aids section of the flood insurance is required. Such a reprinted volume and on GPO Access. quest must be submitted jointly by the lender and the borrower and shall in- § 65.16 Standard Flood Hazard Deter- clude the required fee and technical in- mination Form and Instructions. formation related to the building or (a) Section 528 of the National Flood manufactured home. Elevation data Insurance Reform Act of 1994 (42 U.S.C. will not be considered under the proce- 1365(a)) directs FEMA to develop a dures described in this section. standard form for determining, in the (b) Data and other requirements. Items case of a loan secured by improved real required for FEMA’s review of a deter- estate or a mobile home, whether the mination shall include the following: building or mobile home is located in (1) Payment of the required fee by an area identified by the Director as an check or money order, in U.S. funds, area having special flood hazards and payable to the National Flood Insur- in which flood insurance under this ance Program; title is available. The purpose of the (2) A request for FEMA’s review of form is to determine whether a build- the determination, signed by both the ing or mobile home is located within borrower and the lender; an identified Special Flood Hazard (3) A copy of the lender’s notification Area (SFHA), whether flood insurance to the borrower that the building or is required, and whether federal flood manufactured home is in an SFHA and

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that flood insurance is required (the re- PART 66—CONSULTATION WITH quest for review of the determination LOCAL OFFICIALS must be postmarked within 45 days of borrower notification); Sec. (4) A completed Standard Flood Haz- 66.1 Purpose of part. ard Determination Form for the build- 66.2 Definitions. ing or manufactured home, together 66.3 Establishment of community case file with a legible hard copy of all tech- and flood elevation study docket. nical data used in making the deter- 66.4 Appointment of consultation coordina- mination; and tion officer. (5) A copy of the effective NFIP map 66.5 Responsibilities for consultation and coordination. (Flood Hazard Boundary Map (FHBM) or Flood Insurance Rate Map (FIRM)) AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- panel for the community in which the nization Plan No. 3 of 1978; E.O. 12127. building or manufactured home is lo- § 66.1 Purpose of part. cated, with the building or manufactured home location indicated. Por- (a) The purpose of this part is to tions of the map panel may be sub- comply with section 206 of the Flood mitted but shall include the area of the Disaster Protection Act of 1973 (42 building or manufactured home in U.S.C. 4107) by establishing procedures question together with the map panel for flood elevation determinations of title block, including effective date, Zones A1–30, AE, AH, AO and V1–30, bar scale, and north arrow. and VE within the community so that adequate consultation with the com- (c) Review and response by FEMA. munity officials shall be assured. Within 45 days after receipt of a re- (b) The procedures in this part shall quest to review a determination, apply when base flood elevations are to FEMA will notify the applicants in be determined or modified. writing of one of the following: (c) The Administrator or his delegate (1) Request submitted more than 45 shall: days after borrower notification; no re- (1) Specifically request that the com- view will be performed and all mate- munity submit pertinent data con- rials are being returned; cerning flood hazards, flooding experi- (2) Insufficient information was re- ence, plans to avoid potential hazards, ceived to review the determination; estimate of historical and prospective therefore, the determination stands economic impact on the community, until a complete submittal is received; and such other appropriate data (par- or ticularly if such data will necessitate a (3) The results of FEMA’s review of modification of a base flood elevation). the determination, which shall include (2) Notify local officials of the the following: progress of surveys, studies, investiga- (i) The name of the NFIP community tions, and of prospective findings, in which the building or manufactured along with data and methods employed home is located; in reaching such conclusions; and (ii) The property address or other (3) Encourage local dissemination of identification of the building or manu- surveys, studies, and investigations so factured home to which the determina- that interested persons will have an option applies; portunity to bring relevant data to the (iii) The NFIP map panel number and attention of the community and to the effective date upon which the deter- Administrator. mination is based; (4) Carry out the responsibilities for (iv) A statement indicating whether consultation and coordination set forth the building or manufactured home is in § 66.5 of this part. within the Special Flood Hazard Area; [41 FR 46988, Oct. 26, 1976. Redesignated at 44 (v) The time frame during which the FR 31177, May 31, 1979, as amended at 47 FR determination is effective. 771, Jan. 7, 1982; 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 50 FR 36028, Sept. 4, [60 FR 62218, Dec. 5, 1995] 1985]

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§ 66.2 Definitions. § 66.4 Appointment of consultation coordination officer. The definitions set forth in part 59 of this subchapter are applicable to this The Administrator may appoint an part. employee of the Federal Emergency Management Agency, or other des- [41 FR 46988, Oct. 26, 1976. Redesignated at 44 ignated Federal employee, as the Con- FR 31177, May 31, 1979] sultation Coordination Officer, for each community when an analysis is under- § 66.3 Establishment of community taken to establish or to modify flood case file and flood elevation study elevations pursuant to a new study or a docket. restudy. When a CCO is appointed by (a) A file shall be established for each the Administrator, the responsibilities community at the time initial consid- for consultation and coordination as eration is given to studying that com- set forth in § 66.5 shall be carried out by munity in order to establish whether the CCO. The Administrator shall ad- or not it contains flood-prone areas. vise the community and the state co- Thereafter, the file shall include copies ordinating agency, in writing, of this of all correspondence with officials in appointment. that community. As the community is [47 FR 771, Jan. 7, 1982, as amended at 49 FR tentatively identified, provided with 4751, Feb. 8, 1984] base flood elevations, or suspended and reinstated, documentation of such ac- § 66.5 Responsibilities for consultation and coordination. tions by the Administrator shall be placed in the community file. Even if a (a) Contact shall be made with appro- map is administratively rescinded or priate officials of a community in withdrawn after notice under part 65 of which a proposed investigation is un- this subchapter or the community suc- dertaken, and with the state coordinating agency. cessfully rebuts its flood-prone des- (b) Local dissemination of the intent ignation, the file will be maintained in- and nature of the investigation shall be definitely. encouraged so that interested parties (b) A portion of the community file will have an opportunity to bring rel- shall be designated a flood elevation evant data to the attention of the com- study consultation docket and shall be munity and to the Administrator. established for each community at the (c) Submission of information from time the contract is awarded for a the community concerning the study flood elevation study. The docket shall shall be encouraged. include copies of (1) all correspondence (d) Appropriate officials of the com- between the Administrator and the munity shall be fully informed of (1) community concerning the study, re- The responsibilities placed on them by ports of any meetings among the Agen- the Program, (2) the administrative cy representatives, property owners of procedures followed by the Federal the community, the state coordinating Emergency Management Agency, (3) agency, study contractors or other in- the community’s role in establishing terested persons, (2) relevant publica- elevations, and (4) the responsibilities tions, (3) a copy of the completed flood of the community if it participates or elevation study, and (4) a copy of the continues to participate in the Pro- Administrator’s final determination. gram. (e) Before the commencement of an (c) A flood elevation determination initial Flood Insurance Study, the CCO docket shall be established and main- or other FEMA representative, to- tained in accordance with part 67 of gether with a representative of the or- this subchapter. ganization undertaking the study, [41 FR 46988, Oct. 26, 1976. Redesignated at 44 shall meet with officials of the commu- FR 31177, May 31, 1979, as amended at 48 FR nity. The state coordinating agency 44544 and 44553, Sept. 29, 1983; 49 FR 4751, Feb. shall be notified of this meeting and 8, 1984] may attend. At this meeting, the local

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officials shall be informed of (1) The § 67.1 Purpose of part. date when the study will commence, (2) The purpose of this part is to estab- the nature and purpose of the study, (3) lish procedures implementing the pro- areas involved, (4) the manner in which visions of section 110 of Flood Disaster the study shall be undertaken, (5) the Protection Act of 1973. general principles to be applied, and (6) the intended use of the data obtained. § 67.2 Definitions. The community shall be informed in writing if any of the six preceding The definitions set forth in part 59 of items are or will be changed after this this subchapter are applicable to this initial meeting and during the course part. of the ongoing study. § 67.3 Establishment and maintenance (f) The community shall be informed of a flood elevation determination in writing of any intended modification docket (FEDD). to the community’s final flood elevation determinations or the develop- The Administrator shall establish a ment of new elevations in additional docket of all matters pertaining to areas of the community as a result of a flood elevation determinations. The new study or restudy. Such informa- docket files shall contain the following information: tion to the community will include the data set forth in paragraph (e) of this (a) The name of the community subsection. At the discretion of the Chief ject to the flood elevation determina- of the Natural and Technological Haz- tion; ards Division in each FEMA Regional (b) A copy of the notice of the pro- Office, a meeting may be held to ac- posed flood elevation determination to complish this requirement. the Chief Executive Officer (CEO) of the Community; [47 FR 771, Jan. 7, 1982, as amended at 49 FR (c) A copy of the notice of the pro- 4751, Feb. 8, 1984] posed flood elevation determination published in a prominent local news- PART 67—APPEALS FROM PRO- paper of the community; POSED FLOOD ELEVATION DETER- (d) A copy of the notice of the pro- MINATIONS posed flood elevation determination published in the FEDERAL REGISTER; Sec. (e) Copies of all appeals by private 67.1 Purpose of part. persons received by the Administrator 67.2 Definitions. from the CEO; 67.3 Establishment and maintenance of a (f) Copies of all comments received flood elevation determination docket by the Administrator on the notice of (FEDD). the proposed flood elevation deter- 67.4 Proposed flood elevation determina- mination published in the FEDERAL tion. REGISTER. 67.5 Right of appeal. (g) A copy of the community’s appeal 67.6 Basis of appeal. or a copy of its decision not to appeal 67.7 Collection of appeal data. the proposed flood elevation deter- 67.8 Appeal procedure. mination; 67.9 Final determination in the absence of an appeal by the community. (h) A copy of the flood insurance 67.10 Rates during pendency of final deter- study for the community; mination. (i) A copy of the FIRM for the com- 67.11 Notice of final determination. munity; 67.12 Appeal to District Court. (j) Copies of all materials maintained in the flood elevation study consulta- AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- nization Plan No. 3 of 1978, 3 CFR, 1978 tion docket; and Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, (k) A copy of the final determination 1979 Comp., p. 376. with supporting documents.

SOURCE: 41 FR 46989, Oct. 26, 1976, unless [41 FR 46989, Oct. 26, 1976. Redesignated at 44 otherwise noted. Redesignated at 44 FR 31177, FR 31177, May 31, 1979, as amended at 48 FR May 31, 1979. 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]

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§ 67.4 Proposed flood elevation deter- demonstrated), appellants are required mination. to demonstrate that alternative meth- The Administrator shall propose ods or applications result in more cor- flood elevation determinations in the rect estimates of base flood elevations, following manner: thus demonstrating that FEMA’s esti- (a) Publication of the proposed flood mates are incorrect. elevation determination for comment (b) Data requirements. (1) If an appel- in the FEDERAL REGISTER; lant believes the proposed base flood (b) Notification by certified mail, re- elevations are technically incorrect turn receipt requested, of the proposed due to a mathematical or measurement flood elevation determination to the error or changed physical conditions, CEO; and then the specific source of the error (c) Publication of the proposed flood must be identified. Supporting data elevation determination in a promi- must be furnished to FEMA including nent local newspaper at least twice certifications by a registered profes- during the ten day period immediately sional engineer or licensed land sur- following the notification of the CEO. veyor, of the new data necessary for FEMA to conduct a reanalysis. [41 FR 46989, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, as amended at 48 FR (2) If an appellant believes that the 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] proposed base flood elevations are technically incorrect due to error in EDITORIAL NOTE: For references to FR pages showing lists of flood elevation deter- application of hydrologic, hydraulic or minations, see the List of CFR Sections Af- other methods or use of inferior data in fected, which appears in the Finding Aids applying such methods, the appeal section of the printed volume and on GPO must demonstrate technical incorrect- Access. ness by: (i) Identifying the purported error in § 67.5 Right of appeal. the application or the inferior data. (a) Any owner or lessee of real prop- (ii) Supporting why the application is erty, within a community where a pro- incorrect or data is inferior. posed flood elevation determination (iii) Providing an application of the has been made pursuant to section 1363 same basic methods utilized by FEMA of the National Flood Insurance Act of but with the changes itemized. 1968, as amended, who believes his (iv) Providing background technical property rights to be adversely affected support for the changes indicating why by the Administrator’s proposed determination, may file a written appeal of the appellant’s application should be such determination with the CEO, or accepted as more correct. such agency as he shall publicly des- (v) Providing certification of correct- ignate, within ninety days of the sec- ness of any alternate data utilized or ond newspaper publication of the Ad- measurements made (such as topo- ministrator’s proposed determination. graphic information) by a registered (b) [Reserved] professional engineer or licensed land surveyor, and [41 FR 46989, Oct. 26, 1976. Redesignated at 44 (vi) Providing documentation of all FR 31177, May 31, 1979, as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] locations where the appellant’s base flood elevations are different from § 67.6 Basis of appeal. FEMA’s. (a) The sole basis of appeal under this (3) If any appellant believes the pro- part shall be the possession of knowl- posed base flood elevations are scientif- edge or information indicating that the ically incorrect, the appeal must dem- elevations proposed by FEMA are sci- onstrate scientific incorrectness by: entifically or technically incorrect. Be- (i) Identifying the methods, or as- cause scientific and technical correct- sumptions purported to be scientif- ness is often a matter of degree rather ically incorrect. than absolute (except where mathe- (ii) Supporting why the methods, or matical or measurement error or assumptions are scientifically incor- changed physical conditions can be rect.

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(iii) Providing an alternative anal- tradict the information upon which his/ ysis utilizing methods, or assumptions her proposed determination is based. purported to be correct. (b) The Administrator shall resolve (iv) Providing technical support indi- such appeal by consultation with offi- cating why the appellant’s methods cials of the local government, or by ad- should be accepted as more correct and ministrative hearings under the proce- (v) Providing documentation of all dures set forth in part 68 of this sub- locations where the appellant’s base chapter, or by submission of the con- flood elevations are different from flicting data to an independent sci- FEMA’s. entific body or appropriate Federal agency for advice. [48 FR 31644, July 1, 1983] (c) The final determination by the Administrator where an appeal is filed § 67.7 Collection of appeal data. shall be made within a reasonable (a) Appeals by private persons to the time. CEO shall be submitted within ninety (d) Nothing in this section shall be (90) days following the second news- considered to compromise an appel- paper publication of the Administra- lant’s rights granted under § 67.12. tor’s proposed flood elevation deter- (e) The Administrator shall make mination to the CEO or to such agency available for public inspection the reas he may publicly designate and shall ports and other information used in set forth scientific or technical data making the final determination. This that tend to negate or contradict the material shall be admissible in a court Administrator’s findings. of law in the event the community (b) Copies of all individual appeals re- seeks judicial review in accordance ceived by the CEO shall be forwarded, with § 67.12. as soon as they are received, to the Ad- [41 FR 46989, Oct. 26, 1976. Redesignated at 44 ministrator for information and place- FR 31177, May 31, 1979, as amended at 48 FR ment in the Flood Elevation Deter- 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] mination Docket. § 67.9 Final determination in the ab- (c) The CEO shall review and consoli- sence of an appeal by the commu- date all appeals by private persons and nity. issue a written opinion stating whether (a) If the Administrator does not re- the evidence presented is sufficient to ceive an appeal from the community justify an appeal on behalf of such per- within the ninety days provided, he sons by the community in its own shall consolidate and review on their name. own merits the individual appeals (d) The decision issued by the CEO on which, in accordance with § 67.7 are the basis of his review, on whether an filed within the community and for- appeal by the community in its own warded by the CEO. name shall be made, shall be filed with (b) The final determination shall be the Administrator not later than nine- made pursuant to the procedures in ty days after the date of the second § 67.8 and, modifications shall be made newspaper publication of the Adminis- of his proposed determination as may trator’s proposed flood elevation deter- be appropriate, taking into account the mination and shall be placed in the written opinion, if any, issued by the FEDD. community in not supporting such ap- [41 FR 46989, Oct. 26, 1976. Redesignated at 44 peals. FR 31177, May 31, 1979, as amended at 48 FR [41 FR 46989, Oct. 26, 1976. Redesignated at 44 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] FR 31177, May 31, 1979, as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] § 67.8 Appeal procedure. (a) If a community appeals the pro- § 67.10 Rates during pendency of final posed flood elevation determination, determination. the Administrator shall review and (a) Until such time as a final deter- take fully into account any technical mination is made and proper notice is or scientific data submitted by the given, no person within a participating community that tend to negate or con- community shall be denied the right to

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purchase flood insurance at the sub- 68.4 Hearing board. sidized rate. 68.5 Establishment of a docket. (b) After the final determination and 68.6 Time and place of hearing. 68.7 Conduct of hearings. upon the effective date of a FIRM, risk 68.8 Scope of review. premium rates will be charged for new 68.9 Admissible evidence. construction and substantial improve- 68.10 Burden of proof. ments. The effective date of a FIRM 68.11 Determination. shall begin not later than six months 68.12 Relief. after the final flood elevation deter- AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- mination. nization Plan No. 3 of 1978; E.O. 12127.

§ 67.11 Notice of final determination. SOURCE: 47 FR 23449, May 29, 1982, unless otherwise noted. The Administrator’s notice of the final flood elevation determination for § 68.1 Purpose of part. a community shall be in written form The purpose of this part is to estab- and published in the FEDERAL REG- lish procedures for appeals of the Ad- ISTER, and copies shall be sent to the ministrator’s base flood elevation de- CEO, all individual appellants and the terminations, whether proposed pursu- State Coordinating Agency. ant to section 1363(e) of the Act (42 [41 FR 46989, Oct. 26, 1976. Redesignated at 44 U.S.C. 4104) or modified because of FR 31177, May 31, 1979, as amended at 48 FR changed conditions or newly acquired 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984] scientific and technical information. EDITORIAL NOTE: For the list of commu- [47 FR 23449, May 29, 1982, as amended at 49 nities issued under this section, and not car- FR 33879, Aug. 27, 1984] ried in the CFR, see the List of CFR Sections Affected, which appears in the Finding Aids § 68.2 Definitions. section of the printed volume and on GPO The definitions set forth in part 59 of Access. this subchapter are applicable to this § 67.12 Appeal to District Court. part. (a) An appellant aggrieved by the [47 FR 23449, May 29, 1982, as amended at 49 final determination of the Adminis- FR 33879, Aug. 27, 1984] trator may appeal such determination only to the United States District § 68.3 Right to administrative hearings. Court for the District within which the community is located within sixty If a community appeals the Adminis- days after receipt of notice of deter- trator’s flood elevation determination mination. established pursuant to § 67.8 of this (b) During the pendency of any such subchapter, and the Administrator has litigation, all final determinations of determined that such appeal cannot be the Administrator shall be effective for resolved by consultation with officials the purposes of this title unless stayed of the community or by submitting the by the court for good cause shown. conflicting data to an independent sci- (c) The scope of review of the appel- entific body or appropriate Federal late court shall be in accordance with agency for advice, the Administrator the provisions of 5 U.S.C. 706, as modi- shall hold an administrative hearing to fied by 42 U.S.C. 4104(b). resolve the appeal. [41 FR 46989, Oct. 26, 1976. Redesignated at 44 [47 FR 23449, May 29, 1982, as amended at 49 FR 31177, May 31, 1979, as amended at 48 FR FR 33879, Aug. 27, 1984] 44544 and 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 49 FR 33879, Aug. 27, 1984] § 68.4 Hearing board. (a) Each hearing shall be conducted PART 68—ADMINISTRATIVE by a three member hearing board (here- HEARING PROCEDURES inafter ‘‘board’’). The board shall consist of a hearing officer (hereinafter Sec. ‘‘Judge’’) appointed by the Director 68.1 Purpose of part. based upon a recommendation by the 68.2 Definitions. Office of Personnel Management and 68.3 Right to administrative hearings. two members selected by the Judge

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who are qualified in the technical field days before the date of hearing unless of flood elevation determinations. The such period is waived by all appellants. Judge shall consult with anyone he [47 FR 23449, May 29, 1982, as amended at 49 deems appropriate to determine the FR 33879, Aug. 27, 1984] technical qualifications of individuals being considered for appointment to § 68.7 Conduct of hearings. the board. The board members shall (a) The Judge shall be responsible for not be FEMA employees. the fair and expeditious conduct of pro- (b) The Judge shall be responsible for ceedings. conducting the hearing, and shall make (b) The Administrator shall be rep- all procedural rulings during the resented by the General Counsel or his/ course of the hearing. Any formal or- her designee. ders and the final decision on the mer- (c) One administrative hearing shall its of the hearing shall be made by a be held for any one community unless majority of the board. A dissenting the Administrator for good cause member may submit a separate opinion shown grants a separate hearing or for the record. hearings. (c) A technically qualified alternate (d) The Chief Executive Officer (CEO) will be appointed by the Judge as a of the community or his/her designee member of the board when a tech- shall represent all appellants from that nically qualified appointed member be- community; Provided, That any appel- comes unavailable. The Director will lant may petition the board to allow appoint an alternate Judge if the ap- such appellant to make an appearance pointed Judge becomes unavailable. on his/her own behalf. Such a petition shall be granted only upon a showing of § 68.5 Establishment of a docket. good cause. The General Counsel shall establish a (e) Hearings shall be open to the pub- docket for appeals referred to him/her lic. by the Administrator for administra- (f) A verbatim transcript will be tive hearings. This docket shall in- made of the hearing. An appellant may clude, for each appeal, copies of all ma- order copies of the transcribed ver- terials contained in the flood elevation batim record directly from the reporter determination docket (FEDD) file on and will be responsible for payments. the matter, copies of all correspond- [47 FR 23449, May 29, 1982, as amended at 49 ence in connection with the appeal, all FR 33879, Aug. 27, 1984] motions, orders, statements, and other legal documents, a transcript of the § 68.8 Scope of review. hearing, and the board’s final deter- Review at administrative hearings mination. shall be limited to: An examination of [47 FR 23449, May 29, 1982, as amended at 49 any information presented by each ap- FR 33879, Aug. 27, 1984] pellant within the 90 day appeal period indicating that elevations proposed by § 68.6 Time and place of hearing. the Administrator are scientifically or (a) The time and place of each hear- technically incorrect; the FIRM; the ing shall be designated by the Judge flood insurance study; its backup data for that hearing. The Administrator and the references used in development and the General Counsel shall be of the flood insurance study; and re- promptly advised of such designations. sponses by FEMA to the issues raised (b) The board’s notice of the time and by the appellant(s). place of hearing shall be sent by the [47 FR 23449, May 29, 1982, as amended at 49 Flood Insurance Docket Clerk by reg- FR 33879, Aug. 27, 1984] istered or certified mail, return receipt requested, to all appellants. Such no- § 68.9 Admissible evidence. tice shall include a statement indi- (a) Legal rules of evidence shall not cating the nature of the proceedings be in effect at adminstrative hearings. and their purpose and all appellants’ However, only evidence relevant to entitlement to counsel. Notice of the issues within the scope of review under hearing shall be sent no later than 30 § 68.8 shall be admissible.

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(b) Documentary and oral evidence 70.8 Premium refund after Letter of Map shall be admissible. Amendment. (c) Admissibility of non-expert testi- 70.9 Review of proposed projects. mony shall be within the discretion of AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- the board. nization Plan No. 3 of 1978, 43 FR 41943, 3 (d) All testimony shall be under oath. CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, (e) Res judicata/ collateral estoppel. 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. Where there has been a previous deter- MAPPING DEFICIENCIES UNRELATED TO mination, decision or finding of fact by COMMUNITY-WIDE ELEVATION DETER- the Director, one of his delegees, an ad- MINATIONS ministrative law judge, hearing officer, or hearing board regarding the base §70.1 Purpose of part. flood elevations of any other commu- The purpose of this part is to provide nity, such determination, decision, or an administrative procedure whereby finding of fact shall not be binding on the Administrator will review the sci- the board and may only be admissible entific or technical submissions of an into evidence if relevant. owner or lessee of property who believes his property has been inadvert- § 68.10 Burden of proof. ently included in designated A, AO, A1– The burden shall be on appellant(s) 30, AE, AH, A99, AR, AR/A1–30, AR/AE, to prove that the flood elevation deter- AR/AO, AR/AH, AR/A, VO, V1–30, VE, mination is not scientifically or tech- and V Zones, as a result of the trans- nically correct. position of the curvilinear line to either street or to other readily identifi- § 68.11 Determination. able features. The necessity for this The board shall render its written depart is due in part to the technical dif- cision within 45 days after the conclu- ficulty of accurately delineating the sion of the hearing. The entire record curvilinear line on either an FHBM or of the hearing including the board’s de- FIRM. These procedures shall not cision will be sent to the Director for apply when there has been any alter- review and approval. The Director shall ation of topography since the effective make the final base flood elevation de- date of the first NFIP map (i.e., FHBM termination by accepting in whole or or FIRM) showing the property within in part or by rejecting the board’s deci- an area of special flood hazard. Appeals sion. in such circumstances are subject to the provisions of part 65 of this sub- § 68.12 Relief. chapter. The final determination may be ap- [62 FR 55718, Oct. 27, 1997] pealed by the appellant(s) to the United States district court as pro- § 70.2 Definitions. vided in section 1363(f) of the Act (42 The definitions set forth in part 59 of U.S.C. 4104). this subchapter are applicable to this part. PART 69 [RESERVED] [41 FR 46991, Oct. 26, 1976. Redesignated at 44 PART 70—PROCEDURE FOR MAP FR 31177, May 31, 1979] CORRECTION § 70.3 Right to submit technical information. MAPPING DEFICIENCIES UNRELATED TO COM- (a) Any owner or lessee of property MUNITY-WIDE ELEVATION DETERMINATIONS (applicant) who believes his property Sec. has been inadvertently included in a 70.1 Purpose of part. designated A, AO, A1–30, AE, AH, A99, 70.2 Definitions. AR, AR/A1–30, AR/AE, AR/AO, AR/AH, 70.3 Right to submit technical information. AR/A, VO, V1–30, VE, and V Zones on a 70.4 Review by the Director. 70.5 Letter of Map Amendment. FHBM or a FIRM, may submit sci- 70.6 Distribution of Letter of Map Amend- entific or technical information to the ment. Administrator for the Administrator’s 70.7 Notice of Letter of Map Amendment. review.

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(b) Scientific and technical informa- we have compared either the ground tion for the purpose of this part may elevations of an entire legally defined include, but is not limited to the fol- parcel of land or the elevation of the lowing: lowest adjacent grade to a structure (1) An actual copy of the recorded with the elevation of the base flood and plat map bearing the seal of the appro- that: priate recordation official (e.g. County (a) The property is within a des- Clerk, or Recorder of Deeds) indicating ignated A, A0, A1–30, AE, AH, A99, AR, the official recordation and proper ci- AR/A1–30, AR/AE, AR/AO, AR/AH, AR/ tation (Deed or Plat Book Volume and A, V0, V1–30, VE, or V Zone, and will Page Numbers), or an equivalent iden- state the basis of such determination; tification where annotation of the deed or or plat book is not the practice. (b) The property should not be within (2) A topographical map showing (i) a designated A, A0, A1–30, AE, AH, A99, ground elevation contours in relation AR, AR/A1–30, AR/AE, AR/AO, AR/AH, to the National Geodetic Vertical AR/A,V0, V1–30, VE, or V Zone and that Datum (NVGD) of 1929, (ii) the total we will modify the FHBM or FIRM ac- area of the property in question, (iii) cordingly; or the location of the structure or struc- (c) The property is not within a des- tures located on the property in ques- ignated A, A0, A1–30, AE, AH, A99, AR, tion, (iv) the elevation of the lowest AR/A1–30, AR/AE, AR/AO, AR/AH, AR/ adjacent grade to a structure or struc- A,V0, V1–30, VE, or V Zone as shown on tures and (v) an indication of the curvi- the FHBM or FIRM and no modifica- linear line which represents the area tion of the FHBM or FIRM is nec- subject to inundation by a base flood. essary; or The curvilinear line should be based (d) We need an additional 60 days to upon information provided by any ap- make a determination. propriate authoritative source, such as [66 FR 33900, June 26, 2001] a Federal Agency, the appropriate state agency (e.g. Department of Water § 70.5 Letter of Map Amendment. Resources), a County Water Control Upon determining from available sci- District, a County or City Engineer, a entific or technical information that a Federal Emergency Management Agen- FHBM or a FIRM requires modification cy Flood Insurance Study, or a deter- under the provisions of § 70.4(b), the Ad- mination by a Registered Professional ministrator shall issue a Letter of Map Engineer; Amendment which shall state: (3) A copy of the FHBM or FIRM in- (a) The name of the Community to dicating the location of the property in which the map to be amended was question; issued; (4) A certification by a Registered (b) The number of the map; Professional Engineer or Licensed (c) The identification of the property Land Surveyor that the lowest grade to be excluded from a designated A, adjacent to the structure is above the AO, A1–30, AE, AH, A99, AR, AR/A1–30, base flood elevation. AR/AE, AR/AO, AR/AH, AR/A, VO, V1– [41 FR 46991, Oct. 26, 1976. Redesignated at 44 30, VE, or V Zone. FR 31177, May 31, 1979, as amended at 48 FR [41 FR 46991, Oct. 26, 1976. Redesignated at 44 44544 and 44553, Sept. 29, 1983; 49 FR 4751, Feb. FR 31177, May 31, 1979, as amended at 48 FR 8, 1984; 50 FR 36028, Sept. 4, 1985; 51 FR 30317, 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; Aug. 25, 1986; 53 FR 16280, May 6, 1988; 59 FR 50 FR 36028, Sept. 4, 1985; 59 FR 53601, Oct. 25, 53601, Oct. 25, 1994; 62 FR 55719, Oct. 27, 1997] 1994; 62 FR 55719, Oct. 27, 1997]

§ 70.4 Review by the Director. § 70.6 Distribution of Letter of Map The Director, after reviewing the sci- Amendment. entific or technical information sub- (a) A copy of the Letter of Map mitted under the provisions of § 70.3, Amendment shall be sent to the appli- shall notify the applicant in writing of cant who submitted scientific or tech- his/her determination within 60 days nical data to the Administrator. after we receive the applicant’s sci- (b) A copy of the Letter of Map entific or technical information that Amendment shall be sent to the local

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map repository with instructions that § 70.9 Review of proposed projects. it be attached to the map which the An individual who proposes to build Letter of Map Amendment is amend- one or more structures on a portion of ing. property that may be included inad- (c) A copy of the Letter of Map vertently in a Special Flood Hazard Amendment shall be sent to the map Area (SFHA) may request FEMA’s repository in the state with instruc- comments on whether the proposed tions that it be attached to the map structure(s), if built as proposed, will which it is amending. be in the SFHA. FEMA’s comments (d) A copy of the Letter of Map will be issued in the form of a letter, Amendment will be sent to any com- termed a Conditional Letter of Map munity or governmental unit that re- Amendment. The data required to sup- quests such Letter of Map Amendment. port such requests are the same as (e) [Reserved] those required for final Letters of Map (f) A copy of the Letter of Map Amendment in accordance with § 70.3, Amendment will be maintained by the except as-built certification is not re- Agency in its community case file. quired and the requests shall be accompanied by the appropriate payment, in [41 FR 46991, Oct. 26, 1976. Redesignated at 44 accordance with 44 CFR part 72. All FR 31177, May 31, 1979, as amended at 48 FR such requests for CLOMAs shall be sub- 44544 and 44553, Sept. 29, 1983; 49 FR 4751, Feb. mitted to the FEMA Regional Office 8, 1984] servicing the community’s geographic area or to the FEMA Headquarters Of- § 70.7 Notice of Letter of Map Amend- fice in Washington, DC. ment. (a) The Administrator, shall not pub- [62 FR 5736, Feb. 6, 1997] lish a notice in the FEDERAL REGISTER that the FIRM for a particular commu- PART 71—IMPLEMENTATION OF nity has been amended by letter deter- COASTAL BARRIER LEGISLATION mination pursuant to this part unless such amendment includes alteration or Sec. change of base flood elevations estab- 71.1 Purpose of part. lished pursuant to part 67. Where no 71.2 Definitions. 71.3 Denial of flood insurance. change of base flood elevations has oc- 71.4 Documentation. curred, the Letter of Map Amendment 71.5 Violations. provided under §§ 70.5 and 70.6 serves to inform the parties affected. AUTHORITY: 42 U.S.C. 4001, et seq.; Reorga- nization Plan No. 3 of 1978, 3 CFR, 1978 (b) [Reserved] Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; 42 U.S.C. 4028; secs. 9 and EDITORIAL NOTE: For a list of communities 14, Pub. L. 101–591, 42 U.S.C. 4028(b). issued under this section and not carried in the CFR see the List of CFR Sections Af- SOURCE: 48 FR 37039, Aug. 16, 1983, unless fected, which appears in the Finding Aids otherwise noted. Section of the printed volume and on GPO Access. § 71.1 Purpose of part. This part implements section 11 of § 70.8 Premium refund after Letter of the Coastal Barrier Resources Act Map Amendment. (Pub. L. 97–348) and section 9 of the A Standard Flood Insurance Policy- Coastal Barrier Improvement Act of holder whose property has become the 1990 (Pub. L. 101–591), as those Acts subject of a Letter of Map Amendment amend the National Flood Insurance under this part may cancel the policy Act of 1968 (42 U.S.C. 4001 et seq.). within the current policy year and re- [48 FR 37039, Aug. 16, 1983, as amended at 57 ceive a premium refund under the con- FR 22661, May 29, 1992] ditions set forth in § 62.5 of this subchapter. § 71.2 Definitions. [41 FR 46991, Oct. 26, 1976. Redesignated at 44 (a) Except as otherwise provided in FR 31177, May 31, 1979] this part, the definitions set forth in

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part 59 of this subchapter are applica- (e) For the purpose of this part, a ble to this part. structure located in an area identified (b) For the purpose of this part, a as being in the CBRS both as of Octo- structure located in an area identified ber 18, 1982, and as of November 16, 1990, as being in the Coastal Barrier Re- is a ‘‘substantial improvement’’ if the sources System (CBRS) both as of Oc- substantial improvement (see 44 CFR tober 18, 1982, and as of November 16, part 59) of such structure took place on 1990, is ‘‘new construction’’ unless it or after October 1, 1983. meets the following criteria: (f) For the purpose of this part, a (1)(i) A legally valid building permit structure located in an area newly or equivalent documentation was ob- identified as being in the CBRS as of tained for the construction of such November 16, 1990, is a ‘‘substantial im- structure prior to October 18, 1982; and provement’’ if the substantial improve- (ii) The start of construction (see ment of such structure took place on part 59) took place prior to October 18, or after November 16, 1990. 1982; or (g) For the purpose of this part, a (2)(i) A legally valid building permit structure located in an ‘‘otherwise pro- or equivalent documentation was ob- tected area’’ is a ‘‘substantial improve- tained for the construction of such ment’’ if the substantial improvement structure prior to October 1, 1983; and of such structure took place after No- (ii) The structure constituted an in- vember 16, 1991. surable building, having walls and a (h) For the purpose of this part, a pol- roof permanently in place no later than icy of flood insurance means a policy October 1, 1983. issued pursuant to the National Flood (c) For the purpose of this part, a Insurance Act of 1968, as amended. This structure located in an area newly includes a policy issued directly by the identified as being in the CBRS as of Federal Government as well as by a November 16, 1990, is ‘‘new construc- private sector insurance company tion’’ unless it meets the following cri- under the Write Your Own Program as teria: authorized by 44 CFR part 62. (1) A legally valid building permit or (i) For the purpose of this part, new equivalent documentation was ob- policy of flood insurance means a policy tained for the construction of such of flood insurance other than one structure prior to November 16, 1990; issued by an insurer (Write Your Own and insurer or the Federal Government as (2) The start of construction (see 44 the direct insurer) effective upon the CFR part 59) took place prior to No- expiration of a prior policy of flood in- vember 16, 1990. surance issued by the same insurer (d) For the purpose of this part, a without any lapse in coverage between structure located in an ‘‘otherwise pro- these two policies. tected area’’ is ‘‘new construction’’ un- (j) For the purpose of this part, new less it meets the following criteria: flood insurance coverage means a new or (1)(i) A legally valid building permit renewed policy of flood insurance. or equivalent documentation was ob- (k) For the purpose of this part, oth- tained for the construction of such erwise protected area means an undevel- structure prior to November 16, 1990; oped coastal barrier within the bound- and aries of an area established under Fed- (ii) The start of construction took eral, State, or local law, or held by a place prior to November 16, 1990; or qualified organization, primarily for (2)(i) A legally valid building permit wildlife refuge, sanctuary, rec- or equivalent documentation was ob- reational, or natural resource contained for the construction of such servation purposes and identified and structure prior to November 16, 1991; depicted on the maps referred to in sec- and tion 4(a) of the Coastal Barrier Re- (ii) The structure constituted an in- sources Act, as amended by the Coastal surable building, having walls and a Barrier Improvement Act of 1990, as an roof permanently in place, no later area that is: than November 16, 1991. (1) Not within the CBRS and

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(2) In an ‘‘otherwise protected area.’’ substantially improved since the date of the previous documentation. [48 FR 37039, Aug. 16, 1983, as amended at 49 (b) The documentation must be sub- FR 33879, Aug. 27, 1984; 57 FR 22661, May 29, 1992] mitted along with the application for the flood insurance policy. § 71.3 Denial of flood insurance. (c) For a structure located in an area identified as being in the CBRS both as (a) No new flood insurance coverage of October 18, 1982, and as of November may be provided on or after October 1, 16, 1990, where the start of construction 1983, for any new construction or sub- of the structure took place prior to Oc- stantial improvement of a structure lo- tober 18, 1982, the documentation shall cated in an area identified as being in consist of: the CBRS both as of October 18, 1982, (1) A legally valid building permit or and as of November 16, 1990. its equivalent for the construction of (b) No new flood insurance coverage the structure dated prior to October 18, may be provided on or after November 1982; 16, 1990, for any new construction or (i) If the community did not have a substantial improvement of a structure building permit system at the time the located in any area newly identified as structure was built, a written state- being in the CBRS as of November 16, ment to this effect signed by the re- 1990. sponsible community official will be (c) No new flood insurance coverage accepted in lieu of the building permit; may be provided after November 16, (ii) If the building permit was lost or 1991, for any new construction or sub- destroyed, a written statement to this stantial improvement of a structure effect signed by the responsible com- which is located in an ‘‘otherwise pro- munity official will be accepted in lieu tected area.’’ of the building permit. This statment (d) Notwithstanding paragraph (c) of must also include a certification that this section, new flood insurance cov- the official has inspected the structure erage may be provided for a structure and found no evidence that the struc- which is newly constructed or substan- ture was not in compliance with the tially improved in an ‘‘otherwise pro- building code at the time it was built; tected area’’ if the building is used in a and manner consistent with the purpose for (2) A written statement signed by the which the area is protected. community official responsible for building permits, attesting to the fact [57 FR 22662, May 29, 1992] that he or she knows of his/her own knowledge or from official community § 71.4 Documentation. records, that: (a) In order to obtain a new policy of (i) The start of construction took flood insurance for a structure which is place prior to October 18, 1982; and located in an area identified as being in (ii) The structure has not been sub- the CBRS as of November 16, 1990, or in stantially improved since September order to obtain a new policy of flood in- 30, 1983. surance after November 16, 1991, for a (d) For a structure located in an area structure located in an ‘‘otherwise pro- identified as being in the CBRS both as tected area,’’ the owner of the struc- of October 18, 1982, and as of November ture must submit the documentation 16, 1990, where the start of construction described in this section in order to of the structure took place on or after show that such structure is eligible to October 18, 1982, but the structure was receive flood insurance. However, if the completed (walls and roof permanently new policy of flood insurance is being in place) prior to October 1, 1983, the obtained from an insurer (Write Your documentation shall consist of: Own or the Federal Government as di- (1) A legally valid building permit or rect insurer) that has previously ob- its equivalent for the construction of tained the documentation described in the structure dated prior to October 1, this section, the property owner need 1983; only submit a signed written certifi- (i) If the community did not have a cation that the structure has not been building permit system at the time the

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structure was built, a written state- building code at the time it was built; ment to this effect signed by the re- and sponsible community official will be (2) A written statement signed by the accepted in lieu of the building permit; community official responsible for (ii) If the building permit was lost or building permits, attesting to the fact destroyed, a written statement to this that he or she knows of his or her own effect signed by the responsible com- knowledge or from official community munity official will be accepted in lieu records, that: of the building permit. This statement (i) The start of construction took must also include a certification that place prior to November 16, 1990; and the official has inspected the structure (ii) The structure has not been sub- and found no evidence that the struc- stantially improved since November 15, ture was not in compliance with the 1990. building code at the time it was built; (f) For a structure located in an area and identified as an ‘‘otherwise protected (2) A written statement signed by the area’’ where the start of construction community official responsible for of the structure took place prior to No- building permits, attesting to the fact vember 16, 1990, the documentation that he or she knows of his/her own shall consist of: knowledge or from official community (1) A legally valid building permit or records, that: its equivalent for the construction of (i) The structure constituted an in- the structure, dated prior to November surable building, having walls and a 16, 1990. roof permanently in place no later than (i) If the community did not have a October 1, 1983; and building permit system at the time the (ii) The structure has not been sub- structure was built, a written state- stantially improved since September ment to this effect signed by the re- 30, 1983; and sponsible community official will be (3) A community issued final certifi- accepted in lieu of the building permit; cate of occupancy or other use permit (ii) If the building permit was lost or or equivalent proof certifying the the destroyed, a written statement to this building was completed (walled and effect signed by the responsible com- roofed) by October 1, 1983. munity official will be accepted in lieu (e) For a structure located in an area of the building permit. This statement newly identified as being in the CBRS must also include a certification that as of November 16, 1990, where the start the official has inspected the structure of construction of the structure took and found no evidence that the struc- place prior to November 16, 1990, the documentation shall consist of: ture was not in compliance with the building code at the time it was built; (1) A legally valid building permit or and its equivalent for the construction of the structure, dated prior to November (2) A written statement signed by the 16, 1990. community official responsible for (i) If the community did not have a building permits, attesting to the fact building permit system at the time the that he or she knows of his or her own structure was built, a written state- knowledge or from official community ment to this effect signed by the re- records, that: sponsible community official will be (i) The start of construction took accepted in lieu of the building permit; place prior to November 16, 1990; and (ii) If the building permit was lost or (ii) The structure has not been sub- destroyed, a written statement to this stantially improved since November 16, effect signed by the responsible com- 1991. munity official will be accepted in lieu (g) For a structure located in an area of the building permit. This statement identified as an ‘‘otherwise protected must also include a certification that area’’ where the start of construction the official has inspected the structure of the structure took place after No- and found no evidence that the struc- vember 15, 1990, but construction was ture was not in compliance with the completed with the walls and a roof

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permanently in place no later than No- § 71.5 Violations. vember 16, 1991, the documentation (a) Any flood insurance policy which shall consist of: has been issued where the terms of this (1) A legally valid building permit or section have not been complied with or its equivalent for the construction of is otherwise inconsistent with the pro- the structure, dated prior to November 16, 1991. visions of this section, is void ab initio (i) If the community did not have a and without effect. building permit system at the time the (b) Any false statements or false rep- structure was built, a written state- resentations of any kind made in con- ment to this effect signed by the re- nection with the requirements of this sponsible community official will be part may be punishable by fine or im- accepted in lieu of the building permit; prisonment under 18 U.S. Code section (ii) If the building permit was lost or 1001. destroyed, a written statement to this effect signed by the responsible com- PART 72—PROCEDURES AND FEES munity official will be accepted in lieu FOR PROCESSING MAP CHANGES of the building permit. This statement must also include a certification that Sec. the official has inspected the structure 72.1 Purpose of part. and found no evidence that the struc- 72.2 Definitions. ture was not in compliance with the 72.3 Fee schedule. building code at the time it was built; 72.4 Submittal/payment procedures and and FEMA response. (2) A statement signed by the com- 72.5 Exemptions. munity official responsible for building 72.6 Unfavorable response. permits, attesting to the fact that he 72.7 Resubmittals. or she knows of his or her own knowl- AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- edge or from official community nization Plan No. 3 of 1978, 43 FR 41943, 3 records that: CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR (i) The structure constituted an in- 19367, 3 CFR, 1979 Comp., p. 376. surable building, having walls and a § 72.1 Purpose of part. roof permanently in place, no later than November 16, 1991; and This part provides administrative (ii) The structure has not been sub- and cost-recovery procedures for the stantially improved since November 16, engineering review and administrative 1991; and processing associated with FEMA’s re- (3) A community issued final certifi- sponse to requests for Conditional Let- cate of occupancy or other use permit ters of Map Amendment (CLOMAs), or equivalent proof certifying that the Conditional Letters of Map Revision building was completed (walled and (CLOMRs), Conditional Letters of Map roofed) by November 16, 1991. Revision Based on Fill (CLOMR–Fs), (h) For a structure located in an area Letters of Map Revision Based on Fill identified as an ‘‘otherwise protected (LOMR–Fs), Letters of Map Revision area’’ for which the documentation re- (LOMRs), and Physical Map Revisions quirements of neither paragraph (f) nor (PMRs). Such requests are based on paragraph (g) of this section have been proposed or actual manmade alter- met, the documentation shall consist ations within the floodplain, such as of a written statement from the gov- the placement of fill; modification of a ernmental body or qualified organiza- channel; construction or modification tion overseeing the ‘‘otherwise proof a bridge, culvert, levee, or similar tected area’’ certifying that the build- measure; or construction of single or ing is used in a manner consistent with multiple residential or commercial the purpose for which the area is pro- structures on single or multiple lots. tected. [62 FR 5736, Feb. 6, 1997] (Approved by the Office of Management and Budget under control number 3067–0120) § 72.2 Definitions. [48 FR 37039, Aug. 16, 1983, as amended at 57 Except as otherwise provided in this FR 22662, May 29, 1992] part, the definitions in 44 CFR part 59

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are applicable to this part. For the pur- tive base flood elevations, or the poses of this part, the products are de- SFHA. fined as follows: [62 FR 5737, Feb. 6, 1997] CLOMA. A CLOMA is FEMA’s comment on a proposed structure or group § 72.3 Fee schedule. of structures that would, upon con- (a) For requests for CLOMRs, struction, be located on existing nat- LOMRs, and PMRs based on structural ural ground above the base (1-percent- measures on alluvial fans, an initial fee annual-chance) flood elevation on a of $5,000, subject to the provisions of portion of a legally defined parcel of § 72.4, shall be paid to FEMA before land that is partially inundated by the FEMA begins its review of the request. base flood. The initial fee represents the minimum CLOMR. A CLOMR is FEMA’s com- cost for reviewing these requests and is ment on a proposed project that would, based on the prevailing private-sector upon construction, affect the hydro- labor rate. A revision to this initial logic or hydraulic characteristics of a fee, if necessary, will be published as a flooding source and thus result in the notice in the FEDERAL REGISTER. modification of the existing regulatory (b) For requests for CLOMRs, floodway, the effective base flood ele- LOMRs, and PMRs based on structural vations, or the Special Flood Hazard measures on alluvial fans, the total fee Area (SFHA). will be calculated based on the total CLOMR–F. A CLOMR–F is FEMA’s hours by FEMA to review and process comment on a proposed project that the request multiplied by an hourly would, upon construction, result in a rate based on the prevailing private- modification of the SFHA through the sector labor rate. The hourly rate is placement of fill outside the existing published as a notice in the FEDERAL regulatory floodway. REGISTER. A revision to the hourly LOMR. A LOMR is FEMA’s modifica- rate, if necessary, shall be published as tion to an effective Flood Insurance a notice in the FEDERAL REGISTER. Rate Map (FIRM), or Flood Boundary (c) For conditional and final map re- and Floodway Map (FBFM), or both. vision requests for the following cat- LOMRs are generally based on the im- egories, flat user fees, subject to the plementation of physical measures provisions of § 72.4, shall be paid to that affect the hydrologic or hydraulic FEMA before FEMA begins its review characteristics of a flooding source and of the request: thus result in the modification of the (1) Requests for CLOMAs, CLOMR– existing regulatory floodway, the effec- Fs, and LOMR–Fs for single structures tive base flood elevations, or the or single lots; SFHA. The LOMR officially revises the (2) Requests for CLOMAs for multiple FIRM or FBFM, and sometimes the structures or multiple lots; Flood Insurance Study (FIS) report, (3) Requests for CLOMR–Fs and and, when appropriate, includes a de- LOMR–Fs for multiple structures or scription of the modifications. The multiple lots; LOMR is generally accompanied by an (4) Requests LOMR–Fs for single annotated copy of the affected portions structures or single lots based on as- of the FIRM, FBFM, or FIS report. built information for projects for which LOMR–F. A LOMR–F is FEMA’s FEMA issued CLOMR–Fs previously; modification of the SFHA shown on the (5) Requests for LOMR–Fs for mul- FIRM based on the placement of fill tiple structures or multiple lots based outside the existing regulatory on as-built information for projects for floodway. which FEMA issued CLOMR–Fs pre- PMR. A PMR is FEMA’s physical re- viously; vision and republication of an effective (6) Requests for LOMRs and PMRs FIRM, FBFM, or FIS report. PMRs are based on projects involving bridges, generally based on physical measures culverts, or channels, or combinations that affect the hydrologic or hydraulic thereof; characteristics of a flooding source and (7) Requests for LOMRs and PMRs thus result in the modification of the based on projects involving levees, existing regulatory floodway, the effec- berms, or other structural measures;

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(8) Requests for LOMRs and PMRs (d) For all map revision requests, based on as-built information for FEMA shall bear the cost of reprinting projects for which FEMA issued and distributing the revised FIRM CLOMRs previously, except those based panel(s), FBFM panel(s), or combina- on structural measures on alluvial tion. fans; (e) The entity that applies to FEMA (9) Requests for LOMRs and PMRs through the local community for re- based solely on more detailed data; view is responsible for the cost of the (10) Requests for CLOMRs based on review. The local community incurs no projects involving new hydrologic in- financial obligation under the reim- formation, bridges, culverts, or chan- bursement procedures of this part when nels, or combinations thereof; and another party sends the application to (11) Requests for CLOMRs based on FEMA. projects involving levees, berms, or (f) Requesters shall submit payments other structural measures. by check or money order or by credit (d) If a request involves more than card. Checks or money orders, in U.S. one of the categories listed above, the funds, shall be made payable to the Na- highest applicable flat user fee must be tional Flood Insurance Program. submitted. (g) For CLOMA, CLOMR–F, LOMA, (e) The flat user fees for conditional and LOMR–F requests, FEMA shall: and final map amendments and map re- (1) Notify the requester and commu- visions are based on the actual costs nity within 30 days as to the adequacy for reviewing and processing the re- of the submittal, and quests. The fees for requests for (2) Provide to the requester and the LOMR–Fs, LOMRs, and PMRs also in- community, within 60 days of receipt of clude a fee of $35 to cover FEMA’s costs adequate information and fee, a deter- for physically revising affected FIRM mination letter or other written com- and FBFM panels to reflect the map ment in response to the request. changes. (h) For CLOMR, LOMR, and PMR re- (f) Revisions to the fees, if necessary, quests, FEMA shall: shall be published as a notice in the (1) Notify the requester and commu- FEDERAL REGISTER. nity within 60 days as to the adequacy of the submittal; and [62 FR 5737, Feb. 6, 1997] (2) Provide to the requester and the § 72.4 Submittal/payment procedures community, within 90 days of receipt of and FEMA response. adequate information and fee, a CLOMR, a LOMR, other written com- (a) The initial fee shall be submitted ment in response to the request, or pre- with a request for FEMA review and liminary copies of the revised FIRM processing of CLOMRs, LOMRs, and panels, FBFM panels, and/or affected PMRs based on structural measures on portions of the FIS report for review alluvial fans; the appropriate flat user and comment. fee shall be submitted with all other requests for FEMA review and proc- [62 FR 5737, Feb. 6, 1997] essing. (b) FEMA must receive initial or flat § 72.5 Exemptions. user fees before it will begin any re- Requesters are exempt from submit- view. The fee is non-refundable once ting review and processing fees for: FEMA begins its review. (a) Requests for map changes based (c) Following completion of FEMA’s on mapping or study analysis errors; review for any CLOMR, LOMR, or PMR (b) Requests for map changes based based on structural measures on allu- on the effects of natural changes with- vial fans, FEMA shall invoice the rein SFHAs; quester at the established hourly rate (c) Requests for a Letter of Map for any actual costs exceeding the ini- Amendment (LOMA); tial fee incurred for review and proc- (d) Requests for map changes based essing. FEMA shall not issue a deter- on federally sponsored flood-control mination letter or revised map panel(s) projects where 50 percent or more of until it receives the invoiced amount. the project’s costs are federally funded;

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(e) Requests for map changes based original submissions and subject to all on detailed hydrologic and hydraulic submittal/payment procedures de- studies conducted by Federal, State, or scribed in § 72.4. The procedure in § 72.4 local agencies to replace approximate also applies to a resubmitted request studies conducted by FEMA and shown (regardless of when submitted) if the on the effective FIRM; and project on which the request is based (f) Requests for map changes based has been altered significantly in design on flood hazard information meant to or scope other than as necessary to re- improve upon that shown on the flood spond to comments, concerns, or other map or within the flood study will be findings made by FEMA regarding the exempt from review and processing original submission. fees. Improvements to flood maps or (b) When LOMR, LOMR–F, or PMR studies that partially or wholly incor- requests are made after FEMA issues porate man-made modifications within CLOMRs or CLOMR–Fs, the procedures the special flood hazard area will not in § 72.4 and the appropriate fee apply, be exempt from review and processing as referenced in § 72.3(c). When the as- fees. built conditions differ from the pro- [64 FR 51462, Sept. 23, 1999] posed conditions on which FEMA issued the CLOMRs or CLOMR–Fs, the § 72.6 Unfavorable response. reduced fee for as-built requests will (a) Requests for CLOMAs, CLOMRs, not apply. or CLOMR–Fs may be denied or the de- [62 FR 5738, Feb. 6, 1997] terminations may contain specific comments, concerns, or conditions re- PART 73—IMPLEMENTATION OF garding proposed projects or designs and their impacts on flood hazards in a SECTION 1316 OF THE NATIONAL community. Requesters are not enti- FLOOD INSURANCE ACT OF 1968 tled to any refund of fees paid if the determinations contain such comments, Sec. concerns, or conditions, or if the re- 73.1 Purpose of part. quests are denied. Requesters are not 73.2 Definitions. entitled to any refund of fees paid if 73.3 Denial of flood insurance coverage. 73.4 Restoration of flood insurance cov- the requesters are unable to provide erage. the appropriate scientific or technical documentation or to obtain required AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- authorizations, permits, financing, nization Plan No. 3 of 1978; E.O. 12127. etc., for which requesters seek the SOURCE: 51 FR 30318, Aug. 25, 1986, unless CLOMAs, CLOMRs, or CLOMR–Fs. otherwise noted. (b) Requests for LOMRs, LOMR–Fs, or PMRs may be denied or the revi- § 73.1 Purpose of part. sions to the FIRM, FBFM, or both, This part implements section 1316 of may not be in the manner or to the ex- the National Flood Insurance Act of tent desired by the requesters. Re- 1968. questers are not entitled to any refund of fees paid if the revision requests are § 73.2 Definitions. denied or if the LOMRs, LOMR–Fs, or (a) Except as otherwise provided in PMRs do not revise the map specifi- this part, the definitions set forth in cally as requested. part 59 of this subchapter are applica- [62 FR 5738, Feb. 6, 1997] ble to this part. (b) For the purpose of this part a duly § 72.7 Resubmittals. constituted State or local zoning authority (a) Resubmittals of CLOMA, CLOMR, or other authorized public body means an CLOMR–F, LOMR, LOMR–F, or PMR official or body authorized under State requests more than 90 days after FEMA or local law to declare a structure to be notification that the requests were de- in violation of a law, regulation or or- nied or after FEMA ended its review dinance. because the requester provided insuffi- (c) For the purpose of this part, State cient information will be treated as or local laws, regulations or ordinances

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intended to discourage or restrict develop- (b) A valid rescission shall be sub- ment or occupancy of flood-prone areas mitted to the Administrator and shall are measures such as those defined as consist of: Flood plain management regulations in (1) The name of the property owner(s) § 59.1 of this subchapter. Such measures and an address or legal description of are referred to in this part as State or the property sufficient to identify the local flood plain management regula- property and to enable FEMA to iden- tions. tify the previous declaration; (2) A clear and unequivocal state- § 73.3 Denial of flood insurance cov- ment by an authorized public body re- erage. scinding the declaration and giving the (a) No new flood insurance shall be reason(s) for the rescission; provided for any property which the (3) A description of and supporting Administrator finds has been declared documentation for the measures taken by a duly constituted State or local in lieu of denial of insurance in order zoning authority or other authorized to bring the structure into compliance public body, to be in violation of State with the local flood plain management or local laws, regulations or ordinances regulations; and which are intended to discourage or (4) A clear statement that the public otherwise restrict land development or body rescinding the declaration has the occupancy in flood-prone areas. authority to do so and a citation to (b) New and renewal flood insurance that authority. shall be denied to a structure upon a finding by the Administrator of a valid PART 74 [RESERVED] declaration of a violation. (c) States and communities shall de- PART 75—EXEMPTION OF STATE- termine whether to submit a declara- OWNED PROPERTIES UNDER SELF- tion to the Administrator for the de- INSURANCE PLAN nial of insurance. (d) A valid declaration shall consist Subpart A—General of: (1) The name(s) of the property Sec. 75.1 Purpose of part. owner(s) and address or legal descrip- 75.2 Definitions. tion of the property sufficient to con- 75.3 Burden of proof. firm its identity and location; (2) A clear and unequivocal declara- Subpart B—Standards for Exemption tion that the property is in violation of 75.10 Applicability. a cited State or local law, regulation or 75.11 Standards. ordinance; 75.12 Application by a State for exemption. (3) A clear statement that the public 75.13 Review by the Director. body making the declaration has au- 75.14 States exempt under this part. thority to do so and a citation to that AUTHORITY: 42 U.S.C. 4001 et seq.; Reorga- authority; nization Plan No. 3 of 1978, 43 FR 41943, 3 (4) Evidence that the property owner CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, has been provided notice of the viola- 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. tion and the prospective denial of in- SOURCE: 41 FR 46991, Oct. 26, 1976, unless surance; and otherwise noted. Redesignated at 44 FR 31177, (5) A clear statement that the dec- May 31, 1979. laration is being submitted pursuant to section 1316 of the National Flood In- Subpart A—General surance Act of 1968, as amended. §75.1 Purpose of part. § 73.4 Restoration of flood insurance The purpose of this part is to estab- coverage. lish standards with respect to the Ad- (a) Insurance availability shall be re- ministrator’s determinations that a stored to a property upon a finding by State’s plan of self-insurance is ade- the Administrator of a valid rescission quate and satisfactory for the purposes of a declaration of a violation. of exempting such State, under the

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provisions of section 102(c) of the Act, regulation authorized pursuant to stat- from the requirement of purchasing ute. flood insurance coverage for State- (2) Specify that the hazards covered owned structures and their contents in by the self-insurance plan expressly in- areas identified by the Administrator clude the flood and flood-related haz- as A, AO, AH, A1–30, AE, AR, AR/A1–30, ards which are covered under the AR/AE, AR/AO, AR/AH, AR/A, A99, M, Standard Flood Insurance Policy. V, VO, V1–30, VE, and E Zones, in (3) Provide coverage to state-owned which the sale of insurance has been structures and their contents equal to made available, and to establish the that which would otherwise be avail- procedures by which a State may re- able under a Standard Flood Insurance quest exemption under section 102(c). Policy. [62 FR 55719, Oct. 27, 1997] (4) Consist of a self-insurance fund, or a commercial policy of insurance or re- § 75.2 Definitions. insurance, for which provision is made The definitions set forth in part 59 of in statute or regulation and that is this subchapter are applicable to this funded by periodic premiums or part. charges allocated for state-owned structures and their contents in areas § 75.3 Burden of proof. identified by the Administrator as A, In any application made by a State AO, AH, A1–30, AE, AR, AR/A1–30, AR/ to the Administrator for certification AE, AR/AO, AR/AH, AR/A, A99, M, V, of its self-insurance plan, the burden of VO, V1–30, VE, and E Zones. The person proof shall rest upon the State making or persons responsible for such self-in- application to establish that its policy surance fund shall report on its status of self-insurance is adequate and equals to the chief executive authority of the or exceeds the standards provided in State, or to the legislature, or both, this part. not less frequently than annually. The loss experience shall be shown for each Subpart B—Standards for calendar or fiscal year from inception Exemption to current date based upon loss and loss adjustment expense incurred dur- §75.10 Applicability. ing each separate calendar or fiscal A State shall be exempt from the re- year compared to the premiums or quirement to purchase flood insurance charges for each of the respective cal- in respect to State-owned structures endar or fiscal years. Such incurred and, where applicable, their contents losses shall be reported in aggregate by located or to be located in areas identi- cause of loss under a loss coding sys- fied by the Administrator as A, AO, tem adequate, as a minimum, to iden- AH, A1–30, AE, AR, AR/A1–30, AR/AE, tify and isolate loss caused by flood, AR/AO, AR/AH, AR/A, A99, M, V, VO, mudslide (i.e., mudflow) or flood-re- V1–30, VE, and E Zones, and in which lated erosion. The Administrator may, the sale of flood insurance has been subject to the requirements of para- made available under the National graph (a)(5) of this section, accept and Flood Insurance Act of 1968, as amend- approve in lieu of, and as the reason- ed, provided that the State has estab- able equivalent of the self-insurance lished a plan of self-insurance deter- fund, an enforceable commitment of mined by the Administrator to equal or funds by the State, the enforceability exceed the standards set forth in this of which shall be certified to by the subpart. State’s Attorney General, or other [62 FR 55719, Oct. 27, 1997] principal legal officer. Such funds, or enforceable commitment of funds in § 75.11 Standards. amounts not less than the limits of (a) In order to be exempt under this coverage that would be applicable part, the State’s self-insurance plan under Standard Flood Insurance Poli- shall, as a minimum: cies, shall be used by the State for the (1) Constitute a formal policy or plan repair or restoration of State-owned of self-insurance created by statute or structures and their contents damaged

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as a result of flood-related losses oc- § 75.12 Application by a State for ex- curring in areas identified by the Ad- emption. ministrator as A, AO, AH, A1–30, AE, Application for exemption made pur- AR, AR/A1–30, AR/AE, AR/AO, AR/AH, suant to this part shall be made by the AR/A, A99, M, V, VO, V1–30, VE, and E Governor or other duly authorized offi- Zones. cial of the State accompanied by suffi- (5) Provide for the maintaining and cient supporting documentation which updating by a designated State official certifies that the plan of self-insurance or agency not less frequently than an- upon which the application for exemp- nually of an inventory of all State- tion is based meets or exceeds the owned structures and their contents standards set forth in § 75.11. within A, AO, AH, A1–30, AE, AR, AR/ § 75.13 Review by the Director. A1–30, AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1–30, VE, and E zones. (a) The Administrator may return The inventory shall: the application for exemption upon (i) Include the location of individual finding it incomplete or upon finding structures; that additional information is required in order to make a determination as to (ii) Include an estimate of the cur- the adequacy of the self-insurance rent replacement costs of such struc- plan. tures and their contents, or of their (b) Upon determining that the current economic value; and State’s plan of self-insurance is inad- (iii) Include an estimate of the an- equate, the Administrator shall in ticipated annual loss due to flood dam- writing reject the application for ex- age. emption and shall state in what re- (6) Provide the flood loss experience spects the plan fails to comply with the for State-owned structures and their standards set forth in § 75.11 of this sub- contents based upon incurred losses for part. a period of not less than the 5 years im- (c) Upon determining that the State’s mediately preceding application for explan of self-insurance equals or exceeds emption, and certify that such histor- the standards set forth in §75.11 of this ical information shall be maintained subpart, the Administrator shall cer- and updated. tify that the State is exempt from the (7) Include, pursuant to § 60.12 of this requirement for the purchase of flood subchapter, a certified copy of the insurance for State-owned structures and their contents located or to be lo- flood plain management regulations cated in areas identified by the Admin- setting forth standards for State-owned istrator as A, AO, AH, A1–30, AE, AR, properties within A, AO, AH, A1–30, AR/A1–30, AR/AE, AR/AO, AR/AH, AR/ AE, AR, AR/A1–30, AR/AE, AR/AO, AR/ A, A99, M, V, VO, V1–30, VE, and E AH, AR/A, A99, M, V, VO, V1–30, VE, Zones. Such exemption, however, is in and E Zones. all cases provisional. The Adminis- (b) The Administrator shall deter- trator shall review the plan for contin- mine the adequacy of the insurance ued compliance with the criteria set provisions whether they be based on forth in this part and may request up- available funds, an enforceable com- dated documentation for the purpose of mitment of funds, commercial insur- such review. If the plan is found to be ance, or some combination thereof, but inadequate and is not corrected within has discretion to waive specific re- ninety days from the date that such in- quirements under this part. adequacies were identified, the Admin- istrator may revoke his certification. [41 FR 46991, Oct. 26, 1976. Redesignated at 44 (d) Documentation which cannot rea- FR 31177, May 31, 1979, as amended at 48 FR sonably be provided at the time of ap- 44544, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; plication for exemption shall be sub- 49 FR 5621, Feb. 14, 1984; 50 FR 36029, Sept. 4, 1985; 59 FR 53601, Oct. 25, 1994; 62 FR 55719, mitted within six months of the appli- Oct. 27, 1997] cation date. The Administrator may revoke his certification for a State’s

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failure to submit adequate documenta- authorized by Sections 1366 and 1367 of tion after the six month period. the National Flood Insurance Act of 1968, 42 U.S.C. 4104c and 4104d. [41 FR 46991, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, as amended at 48 FR (b) The purpose of FMA is to assist 44544, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; State and local governments in funding 49 FR 5621, Feb. 14, 1984; 50 FR 36029, Sept. 4, cost-effective actions that reduce or 1985; 59 FR 53601, Oct. 25, 1994; 62 FR 55719, eliminate the long-term risk of flood Oct. 27, 1997] damage to buildings, manufactured homes, and other insurable structures. § 75.14 States exempt under this part. The long-term goal of FMA is to reduce The following States have submitted or eliminate claims under the National applications and adequate supporting Flood Insurance Program (NFIP) documentation and have been deter- through mitigation activities. The pro- mined by the Administrator to be ex- gram provides cost-shared grants for empt from the requirement of flood in- three purposes: Planning Grants to surance on State-owned structures and States and communities to assess the their contents because they have in ef- flood risk and identify actions to re- fect adequate State plans of self-insur- duce that risk; Project Grants to exe- ance: Florida, Georgia, Iowa, Ken- cute measures to reduce flood losses; tucky, Maine, New Jersey, New York, and Technical Assistance Grants that North Carolina, Oregon, Pennsylvania, States may use to assist communities South Carolina, Tennessee, and to develop viable FMA applications and Vermont. implement FMA projects. FMA also [48 FR 44544, Sept. 29, 1983, as amended at 57 outlines a process for development and FR 19542, May 7, 1992] approval of Flood Mitigation Plans. § 78.2 Definitions. PARTS 76–77 [RESERVED] (a) Except as otherwise provided in this part, the definitions set forth in PART 78—FLOOD MITIGATION part 59 of this subchapter are applica- ASSISTANCE ble to this part. (b) Community means: Sec. (1) A political subdivision, including 78.1 Purpose. any Indian tribe or authorized tribal 78.2 Definitions. 78.3 Responsibilities. organization or Alaskan native village 78.4 Applicant eligibility. or authorized native organization, that 78.5 Flood Mitigation Plan development. has zoning and building code jurisdic- 78.6 Flood Mitigation Plan approval proc- tion over a particular area having spe- ess. cial flood hazards, and is participating 78.7 Grant application procedures. in the NFIP; or 78.8 Grant funding limitations. (2) A political subdivision of a State, 78.9 Planning grant approval process. 78.10 Project grant approval process. or other authority, that is designated 78.11 Minimum project eligibility criteria. to develop and administer a mitigation 78.12 Eligible types of projects. plan by political subdivisions, all of 78.13 Grant administration. which meet the requirements of para- 78.14 Alternative procedures. graph (b)(1) of this section. AUTHORITY: 42 U.S.C. 4001 et seq.; 42 U.S.C. 4104c, 4104d; Reorganization Plan No. 3 of § 78.3 Responsibilities. 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; (a) Federal. The Director will allocate E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, available funds to each FEMA Region. 1979 Comp., p. 376. The FEMA Regional Director will: SOURCE: 62 FR 13347, Mar. 20, 1997, unless (1) Allocate Technical Assistance and otherwise noted. Planning Grants to each State through the annual Cooperative Agreements; § 78.1 Purpose. (2) Approve Flood Mitigation Plans (a) The purpose of this part is to pre- in accordance with § 78.6; and scribe actions, procedures, and require- (3) Award all FMA project grants, ments for administration of the Flood after evaluating applications for min- Mitigation Assistance (FMA) program, imum eligibility criteria and ensuring

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compliance with applicable Federal § 78.5 Flood Mitigation Plan develop- laws. ment. (b) State. The State will serve as A Flood Mitigation Plan will articu- grantee through the State Point of late a comprehensive strategy for im- Contact (POC) designated by the Gov- plementing technically feasible flood ernor. The POC must have working mitigation activities for the area af- knowledge of NFIP goals and processes fected by the plan. At a minimum, and will ensure that FMA is coordi- plans will include the following ele- nated with other mitigation activities ments: at the State level. If a Governor choos- (a) Description of the planning proc- es not to identify a POC to coordinate ess and public involvement. Public in- the FMA, communities may follow al- volvement may include workshops, ternative procedures as described in public meetings, or public hearings. § 78.14. States will: (b) Description of the existing flood (1) Provide technical assistance to hazard and identification of the flood communities to assist them in devel- risk, including estimates of the number oping applications and implementing and type of structures at risk, repet- approved applications; itive loss properties, and the extent of (2) Award planning grants; flood depth and damage potential. (c) The applicant’s floodplain man- (3) Submit plans to the FEMA Re- agement goals for the area covered by gional Director for approval; the plan. (4) Evaluate project applications, se- (d) Identification and evaluation of lecting projects to forward to the cost-effective and technically feasible FEMA Regional Director for final ap- mitigation actions considered. proval; and (e) Presentation of the strategy for (5) Submit performance and financial reducing flood risks and continued reports to FEMA in compliance with 44 compliance with the NFIP, and proce- CFR 13.40 and 13.41. dures for ensuring implementation, re- (c) Community. The community will: viewing progress, and recommending (1) Complete and submit applications revisions to the plan. to the State POC for the Planning and (f) Documentation of formal plan Projects Grants; adoption by the legal entity submit- (2) Prepare and submit the Flood ting the plan (e.g., Governor, Mayor, Mitigation Plan; County Executive). (3) Implement all approved projects; § 78.6 Flood Mitigation Plan approval (4) Comply with FMA requirements, process. 44 CFR parts 13 and 14, the grant agreement, applicable Federal, State and The State POC will forward all Flood local laws and regulations (as applica- Mitigation Plans to the FEMA Re- ble); and gional Director for approval. The Re- gional Director will notify the State (5) Account for the appropriate use of POC of the approval or disapproval of grant funds to the State POC. the plan within 120 days after submis- § 78.4 Applicant eligibility. sion. If the Regional Director does not approve a mitigation plan, the Re- (a) The State is eligible to apply for gional Director will notify the State grants for Technical Assistance. POC of the reasons for non-approval (b) State agencies and communities and offer suggestions for improvement. are eligible to apply for Planning and Project Grants and to act as sub- § 78.7 Grant application procedures. grantee. Communities on probation or States will apply for Technical As- suspended under 44 CFR part 60 of the sistance and Planning Grants through NFIP are not eligible. To be eligible for the annual Cooperative Agreement be- Project Grants, an eligible applicant tween FEMA and the State. The State will develop, and have approved by the POC will be notified regarding their FEMA Regional Director, a Flood Miti- available funds for project grants each gation Plan in accordance with § 78.5. fiscal year. The State may forward

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project applications to FEMA for re- FEMA for final approval. FEMA will view at any time. provide funding on a project by project basis through a supplement to the an- § 78.8 Grant funding limitations. nual Cooperative Agreement. The (a) The Director will allocate the FEMA Regional Director will notify available funds for FMA each fiscal States regarding the program schedule year. Each State will receive a base at the beginning of each fiscal year. amount of $10,000 for Planning Grants and $100,000 for Project Grants, with § 78.11 Minimum project eligibility cri- the remaining funds distributed based teria. on the number of NFIP policies, repet- The identification of a project or ac- itive loss structures, and other such tivity in an approved Flood Mitigation criteria as the Director may determine Plan does not mean it meets FMA eli- in furtherance of the disaster resistant gibility criteria. Projects must: community concept. (a) Be cost-effective, not costing (b) A maximum of $1,500,000 may be more than the anticipated value of the allocated for Planning Grants nation- reduction in both direct damages and ally each fiscal year. A Planning Grant subsequent negative impacts to the will not be awarded to a State or com- area if future floods were to occur. munity more than once every 5 years, and an individual Planning Grant will Both costs and benefits are computed not exceed $150,000 to any State agency on a net present value basis. applicant, or $50,000 to any community (b) Be in conformance with 44 CFR applicant. The total Planning Grant part 9, Floodplain Management and made in any fiscal year to any State, Protection of Wetlands; Executive including all communities located in Order 12699, Seismic Safety of Federal the State, will not exceed $300,000. and Federally Assisted or Regulated (c) A maximum of ten percent of the New Building Construction; 44 CFR funds available for Project Grants will part 10, Environmental Considerations; be allocated to Technical Assistance and any applicable environmental laws grants each fiscal year. and regulations. (d) The total amount of FMA Project (c) Be technically feasible. Grant funds provided during any 5-year (d) Be in conformance with the min- period will not exceed $10,000,000 to any imum standards of the NFIP Flood- State or $3,300,000 to any community. plain Management Regulations at 44 The total amount of Project Grant CFR part 60. funds provided to any State, including (e) Be in conformance with the Flood all communities located in the State Mitigation Plan; the type of project will not exceed $20,000,000 during any 5- being proposed must be identified in year period. the plan. § 78.9 Planning grant approval proc- (f) Be located physically in a partici- ess. pating NFIP community that is not on probation or must benefit such commu- The State POC will evaluate and ap- nity directly by reducing future flood prove applications for Planning Grants. damages. Funds will be provided only for the flood portion of any mitigation plan, § 78.12 Eligible types of projects. and Planning Grants will not be awarded to develop new or improved flood- The following types of projects are plain maps. The performance period for eligible for funding through FMA, pro- each Planning Grant will not exceed 3 viding they meet all other eligibility years. criteria. (a) Acquisition of insured structures § 78.10 Project grant approval process. and underlying real property in fee The State POC will solicit applica- simple and easements restricting real tions from eligible applicants, review property to open space uses. projects for eligibility, and select ap- (b) Relocation of insured structures plications for funding. Those project from acquired or restricted real prop- applications will then be forwarded to erty to non hazard-prone sites.

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(c) Demolition and removal of in- (c) FEMA will recapture any funds sured structures on acquired or re- provided to a State or a community stricted real property. under FMA and deposit the amounts in (d) Elevation of insured residential the National Flood Mitigation Fund if structures in accordance with 44 CFR the applicant has not provided the ap- 60.3. propriate matching funds, the approved (e) Elevation or dry floodproofing of project has not been completed within insured non-residential structures in the timeframes specified in the grant accordance with 44 CFR 60.3. agreement, or the completed project (f) Other activities that bring an in- does not meet the criteria specified in sured structure into compliance with the regulations in this part. the floodplain management requirements at 44 CFR 60.3. § 78.14 Alternative procedures. (g) Minor physical flood mitigation For the purposes of this part, alter- projects that reduce localized flooding native procedures are available which problems and do not duplicate the flood allow the community to coordinate di- prevention activities of other Federal rectly with FEMA in implementing the agencies. program. These alternative procedures (h) Beach nourishment activities. are available in the following cir- § 78.13 Grant administration. cumstances. Native American tribes or authorized tribal organizations may (a) FEMA may contribute up to 75 submit plans and applications to the percent of the total eligible costs of State POC or directly to the FEMA Re- each grant. At least 25 percent of the gional Director. If a Governor chooses total eligible costs will be provided not to identify a POC to coordinate the from a nonFederal source. Of this FMA, communities may also submit amount, not more than one half will be plans and applications to the FEMA provided from in-kind contributions. Regional Director. Allowable costs will be governed by OMB Circular A–87 and 44 CFR part 13. (b) The grantee must submit per- PART 79 [RESERVED] formance and financial reports to FEMA and must ensure that all sub- FEDERAL CRIME INSURANCE PROGRAM grantees are aware of their responsibilities under 44 CFR parts 13 and 14. PARTS 80–149 [RESERVED]

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PART 150—PUBLIC SAFETY AWARDS unit or organization which has been TO PUBLIC SAFETY OFFICERS given a mission under the direction or operational control of a Civil Defense Sec. or Emergency Preparedness Director/ 150.1 Background and purpose. Coordinator in accordance with a Fed- 150.2 Definitions. eral, State or local emergency plan and 150.3 Nomination process. sanctioned by the government con- 150.4 Nomination and selection criteria. cerned. This also includes emergency 150.5 Joint Public Safety Awards Board. management officers. This includes 150.6 Design and procurement of awards. volunteers and paid employees for any 150.7 Selection process. governmental entity. 150.8 Presentation of awards. 150.9 Funding. Distinguished Public Safety Service 150.10 Date of submission of nominations. Award means the Secretary’s Award for Distinguished Public Safety Service, pre- AUTHORITY: Federal Fire Prevention and Control Act of 1974, sec. 15, 15 U.S.C. 2214; sented by either the Attorney General Reorg. Plan No. 3 of 1978, 3 CFR, 1978 Comp., or the Director of FEMA to public safe- p. 329, and E.O. 12127, dated Mar. 31, 1979, 3 ty officers for distinguished service in CFR, 1979 Comp., p. 376. the field of public safety.

SOURCE: 49 FR 39845, Oct. 11, 1984, unless FEMA means the Federal Emergency otherwise noted. Management Agency. Firefighter means a member, regard- § 150.1 Background and purpose. less of rank or duties, of any organiza- The regulations in this part are tion (including such Federal organiza- issued under the authority of the Fed- tions) in any State consisting of per- eral Fire Prevention and Control Act of sonnel, apparatus, and equipment 1974 (the Act), 15 U.S.C. 2201 et seq. The which has as its purpose protecting Act establishes two classes of honorary property and maintaining the safety awards for public safety officers and di- and welfare of the public from the dan- rects the issuance of the necessary gers of fire. This term includes volun- joint regulations by the Director of the teer or paid employees. The location of Federal Emergency Management Agen- any such organization may include, but cy (FEMA) and the Attorney General. is not limited to, a Federal installa- The functions of the Secretary of Com- tion, a State, city, town, borough, par- merce were transferred by Reorganiza- ish, county, fire district, rural fire dis- tion Plan No. 3 of 1978 to the Director, trict or other special district. FEMA. Since initial passage of the Act, Joint Board means the Joint Public civil defense functions which then were Safety Awards Board established by delegated to the Secretary of Defense the Director of the Federal Emergency have been delegated to the Director, Management Agency and the Attorney FEMA. Section 15 of the Act has been General to carry out the purposes of amended to delete the Secretary of De- the Federal Fire Prevention and Con- fense from participating in the grant- trol Act of 1974. ing of awards. See Public Law 98–241, 98 Law enforcement officer means a per- Stat. 95, 96 (1984). The Director, FEMA, son involved in the control or reduc- and the Attorney General are issuing tion of crime and juvenile delinquency this regulation to implement the statu- or enforcement of the criminal laws. tory provisions for FEMA and the De- This includes, but is not limited to, po- partment of Justice. lice, corrections, probation, parole, and court officers, and Federal civilian offi- § 150.2 Definitions. cers in such capacities. Civil defense officer (or member of a Nominating official means the head of recognized civil defense or emergency a Federal government department or preparedness organization) means any agency, or his delegatee(s), the gov- individual who is assigned to and is ernor or other head of a State, or the performing the assigned tasks of the chief executive or executives of any

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general governmental unit within any the requirements prescribed in this sec- State. tion and § 150.4 at the earliest prac- President’s Award means the Presi- ticable date after the performance of dent’s Award for Outstanding Public the act or acts for which the nomina- Safety Service, presented by the Presi- tion is made. Nominations for each dent of the United States to public year shall be made before November 15; safety officers for extraordinary valor any received thereafter will be consid- in the line of duty or for outstanding ered as having been made for the fol- contributions to public safety. lowing year. However, for the year 1983, Public safety officer means a person nominations may be made by February serving a public agency, with or with- 28, 1985. out compensation, as a firefighter, a (d) Nominations for the President’s civil defense officer (or member of a Award or the Distinguished Public recognized civil defense or emergency Safety Service Award should include preparedness organization), or a law the name of the candidate, his/her posi- enforcement officer, including a correction, title and address, and public agen- tions or court officer. cy served, the locale where the can- State means any State, the District of didate performs his/her duties, the Columbia, the Commonwealth of Puer- name, address and telephone number of to Rico, the Commonwealth of the the nominating official, a summary de- Northern Mariana Islands, the Virgin scribing the outstanding contribution, Islands, Guam, American Samoa, the distinguished service or extraordinary Trust Territory of the Pacific Islands valor, and the dates relating thereto. and any other territory or possession The description should be sufficiently of the United States. concise and specific to justify the request for recognition of the public safe- § 150.3 Nomination process. ty officer through the presentation of (a) The Nominating Officials nomi- either of the awards. Copies of any pub- nating Firefighters and Civil Defense lished factual accounts of the nomi- Officers shall submit their nominations nee’s accomplishment should also be for the President’s Award or Distin- attached when available. guished Public Safety Service Award to (e) An annual invitation shall be the Executive Secretary, Joint Public issued by the Joint Board for nomina- Safety Awards Board, National Emer- tions for the President’s Award and, on gency Training Center, Emmitsburg, behalf of the Attorney General and the MD 21727. Copies of all nominations Director of FEMA, for the Distin- shall also be forwarded, depending on guished Public Safety Service Award. the category of the nominee, as fol- The invitation shall be issued by letter lows: or by notice in apporpriate publica- (1) Firefighter: tions of interest to the public safety FEMA, Attention: Superintendent, National community. However, nominating offi- Fire Academy, Emmitsburg, MD 21727 cials need not wait for such invitation but may nominate at the most appro- (2) Civil defense officer (or member of a priate time in accordance with the recognized civil defense or emergency pre- other provisions of this part. Approved paredness organization): by the Office of Management and Budg- FEMA, Attention: Superintendent, Emer- et under Control No. 3067–0150. gency Management Institute, Emmitsburg, [49 FR 39845, Oct. 11, 1984, as amended at 50 MD 21727 FR 3350, Jan. 24, 1985] (b) The Nominating Officials nominating law enforcement, corrections or § 150.4 Nomination and selection cri- court officers shall submit their nomi- teria. nations for the President’s Award or (a) Nominations for the President’s Distinguished Public Safety Service Award of the Distinguished Public Awards to: Assistant Attorney General Safety Service Award shall be made on for Administration, U.S. Department of the basis of, and in conformity with, Justice, Washington, DC 20530. the following uniform criteria. (c) All nominations shall be sub- (1) President’s Award. Documentation mitted in writing in accordance with accompanying the nomination for this

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Award must indicate not only that the (c) A National Emergency Training nominee unquestionably meets the Center employee shall act as Executive standards established for the Distin- Secretary of the Joint Board. The Ex- guished Public Safety Service Award ecutive Secretary shall perform such (see paragraph (a)(2) of this section), functions as are appropriate to the but also deserves greater public rec- Board’s responsibilities, including the ognition because he/she has dem- receipt of all nominations and the com- onstrated unique qualities of courage, munication of nomination information, imagination or ability, which have re- for the purpose of receiving comments sulted in outstanding contributions to thereon, from members of the public the public safety. safety community pursuant to (2) Distinguished Public Safety Service § 150.5(e). The Executive Secretary shall Award. Nomination for this award shall be appointed by the Associate Director, clearly show that the public safety officer’s qualifying service or act is Training and Fire Programs of FEMA. marked by courage, imagination or (d) The Joint Board shall review the ability or has resulted in a significant nomimations for the President’s Award contribution to the public safety ac- and shall recommend to the Director, complished through an originality of FEMA, and the Attorney General by effort which far exceeds the expected February 1 of each year, those nomi- quality of performance of the normal nees determined by it to merit consid- duties assigned to the nominee. eration for the President’s Award to- (b) A nomination shall specify wheth- gether with reasons therefor. The Di- er it is being submitted for the Presi- rector and the Attorney General shall dent’s Award or the Distinguished Pub- then recommend to the President those lic Safety Award. nominees determined by them to merit the President’s Award, together with § 150.5 Joint Public Safety Awards the reasons therefor. Recommenda- Board. tions for 1983 shall be submitted on or (a) A Joint Public Safety Awards before March 29, 1985. Board (Joint Board) is hereby estab- (e) The Joint Board may request that lished to fulfill the responsibilities of persons representing a cross-section of the Director of FEMA and the Attor- the national public safety community ney General by administering the proc- comment upon nominations made to ess of nomination for the President’s the Board for the President’s Award. Award and by participating in the selection process with the Executive Of- Both the request for comments and the fice of the President. The Joint Board comments themselves shall be made in shall consist of ten representatives who writing. are Federal employees and are of ap- [49 FR 39845, Oct. 11, 1984, as amended at 50 propriate rank (at or equivalent to FR 3350, Jan. 24, 1985] grades GM–14 or above). Five persons shall be named by and represent the § 150.6 Design and procurement of Director of FEMA, and five persons awards. shall be named by and represent the (a) The Joint Board shall consult Attorney General. The representatives with the Department of the Treasury serving on the Joint Board shall select and the Executive Office of the Presi- one of their number to act as the chair- dent in regard to the design and pro- person. curement of the appropriate citations (b) Representatives on the Joint Board shall serve in addition to their and medal for the President’s Award in regular duties and without additional accordance with applicable laws and compensation. Consistent with the re- regulations. quirements of this part, the members (b) Insofar as practicable, the designs of the Joint Board shall establish the for Distinguised Public Safety Service procedures by which the selections for Awards of FEMA and the Department the President’s Award shall be made to of Justice shall be coordinate so as to assure the timely presentation of these avoid distinctly different recognition awards. of the various public safety officers.

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§ 150.7 Selection process. § 150.9 Funding. (a) President’s Award. Nominations (a) President’s Award. The costs infor the President’s Award shall be re- volved in designing and striking the viewed, and winners selected by the medal to be presented in conjunction President (or his designee) in accord- with the President’s Award shall be ance with the reqirements of § 150.3, the prorated among the agencies con- criteria in § 150.4(a)(1), and the proce- cerned. The cost of producing the dures of § 150.5. medal and printing the certificate shall (b) Distinguished Public Safety Service be borne by FEMA if the recipient is a Award. Upon receipt of nominations for firefighter or a civil defense officer. If this Award, the Director of FEMA or the award recipient is a law enforce- the Attorney General shall cause an ment officer, then such cost shall be evaluation and selection of the nomi- borne by the Department of Justice. nees to be made in accordance with the (b) Distinguished Public Safety Service requirements of § 150.3 and the criteria Award. All expenses in connection with prescribed in § 150.4(a)(2). In reviewing this Award shall be borne by the appro- nominations, the Attorney General or priate Agency. the Director of FEMA may request that persons representing the relevant § 150.10 Date of submission of nomina- segment of the national public safety tions. community comment upon the nomina- Nominations may only be submitted tion and accompanying documentation. for acts, services, or contributions oc- Both the request for comments and the curring within two years preceding the comments themselves shall be made in November 15 cut-off date described in writing. § 150.3(c) of this part. However, nomina- (c) Individuals nominated for the tions submitted prior to the February President’s Award who are considered 28, 1985 cut-off date may be made for not to meet the criteria for the Award acts, services or contributions occur- by the Joint Board or who are not rec- ring on or after October 29, 1972 (two ommended to or selected by the Presi- years before the effective date of the dent shall be automatically considered Act). by the appropriate authority for nomination for the Distinguished Public [50 FR 3350, Jan. 24, 1985] Safety Service Award. (d) Individuals nominated for the Dis- PART 151—REIMBURSEMENT FOR tinguished Public Safety Service COSTS OF FIREFIGHTING ON Award may be considered by the Joint FEDERAL PROPERTY Board for the President’s Award if the Director of FEMA or the Attorney Subpart A—Purpose, Scope, Definitions General determines that consideration for the President’s Award is merited. Sec. 151.01 Purpose. 151.02 Scope. § 150.8 Presentation of awards. 151.03 Definitions. (a) Presentation of the President’s Award shall be made at such time, Subpart B—Submission, Determination, place and circumstances as the Execu- Appeal tive Office of the President directs. 151.11 Submission of claims. There shall not be more twelve Presi- 151.12 Determination of amount authorized dent’s Awards given out during any for payment. calendar year. 151.13 Reconsideration of amount author- (b) Presentation of the Distinguished ized for payment. Public Safety Service Award shall be 151.14 Adjudication. made by the Attorney General or the Director of FEMA or a designee at such Subpart C—Administration, Penalties time, place and circumstances as the 151.21 [Reserved] Director of FEMA or the Attorney 151.22 Audits. General determines. There is no limit 151.23 Penalties. on the number of these awards made AUTHORITY: Secs. 11 and 21(b)(5), Federal during any calendar year. Fire Prevention and Control Act of 1974 (15

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U.S.C. 2210 and 2218(b)(5)); Reorganization shall be deducted from the costs Plan No. 3 of 1978 (3 CFR, 1978 Comp., p. 379) claimed, pursuant to § 151.12. and E.O. 12127, dated Mar. 31, 1979 (3 CFR, 1979 Comp., p. 376). § 151.03 Definitions. SOURCE: 49 FR 5929, Feb. 16, 1984, unless (a) The Act means the Federal Fire otherwise noted. Prevention and Control Act of 1974, 15 U.S.C. 2201 et seq. Subpart A—Purpose, Scope, (b) Additional firefighting costs over Definitions and above normal operating costs means reasonable and authorized (or ratified § 151.01 Purpose. by a responsible Federal official) costs ordinarily associated with the function Section 11 of the Federal Fire Pre- of firefighting as performed by a fire vention and Control Act of 1974, pro- service. Such costs would normally vides that ‘‘each fire service that en- arise out of response of personnel and gages in the fighting of a fire on prop- apparatus to the site of the fire, search erty which is under the jurisdiction of and rescue, exposure protection, fire the United States may file a claim containment, ventilation, salvage, ex- with the Director of the Federal Emer- tinguishment, overhaul, and prepara- gency Management Agency for the tion of the equipment for further use. amount of direct expenses and direct This would also include costs associ- losses incurred by such fire service as a ated with emergency medical services result of fighting such fire.’’ This part, to the extent normally rendered by a implements section 11 of the Act and fire service in connection with a fire. governs the submission, determination, Not included are administrative ex- and appeal of claims under section 11. penses, costs of employee benefits, insurance, disability, death, litigation or § 151.02 Scope. health care, and the costs associated Fire services, in any State, may file with processing claims under section 11 claims for reimbursement under sec- of the Act and this part. tion 11 and this part for the direct ex- (c) Director means the Director of the penses and losses which are additional Federal Emergency Management Agen- firefighting costs over and above nor- cy, or his/her designee. mal operating costs incurred while (d) Claimant means a fire service as fighting a fire on property which is defined in paragraph (g) of this section. under the jurisdiction of the United (e) Direct expenses and losses means States. Section 11 requires that certain expenses and losses which would not payments be deducted from those costs have been incurred had not the fire in and that the Treasury Department will question taken place. This includes sal- ordinarily pay the amount resulting aries for specially employed personnel, from the application of that formula. overtime pay, the cost of supplies ex- Where the United States has entered pended, and the depreciated value of into a contract (which is not a mutual equipment destroyed or damaged. It aid agreement, defined in § 151.03) for does not include such costs as the ordi- the provision of fire protection, and it nary wages of firefighters, overhead is the intent of the parties that reim- costs, or depreciation (if based on other bursement under section 11 is unavail- than hours of use during fires). Ex- able, this intent will normally govern. penses as defined herein would nor- Where a mutual aid agreement is in ef- mally be incurred after the first call or fect between the claimant and an agen- alarm and would normally cease upon cy of the United States for the prop- the first of the following: Return to erty upon which the fire occurred, re- station, report in-service and ready for imbursement will be available in other- further operations, or commence re- wise proper situations. However, any sponse to another incident. payments (including the value of serv- (f) Fire means any instance of de- ices) rendered under the agreement structive or uncontrolled burning, in- during the term of the agreement (or cluding scorch burns and explosions of the Federal fiscal year in which the combustible dusts or solids, flammable fire occurred, if no term is discernible) liquids, and gases. The definition does

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not include the following except where would not have been incurred absent they cause fire or occur as a con- the fire out of which the claim arises. sequence of fire: Lightning or elec- (k) Payments to the fire service or its trical discharge, explosion of steam parent jurisdiction, including taxes or boilers, hot water tanks, or other pres- payments in lieu of taxes, the United sure vessels, explosions of ammunition States has made for the support of fire or other detonating materials, over- services on the property in question heating, mechanical failures, or break- means any Federal monies, or the down of electrical equipment in power value of services, including those made transmission facilities, and accidents available through categorical or block involving ships, aircraft, or other vehi- grants, contracts, mutual aid agree- cles. Not included in this definition are ments, taxes, and payments in lieu of any costs associated with false alarms, taxes which the United States has paid regardless of cause. to the fire service or its parent juris- (g) Fire service means any organiza- diction for fire protection and fire- tion in any State consisting of fighting services. Such payments will personnnel, apparatus, and equipment be determined on the basis of the term which has as its purpose protecting of the arrangement, or if no such term property and maintaining the safety is discernible, on the basis of the Fed- and welfare of the public from the dan- eral fiscal year in which the fire oc- gers of fire, including a private firefighting brigade. The personnel of any curred. such organization may be paid employ- (l) Property which is under the jurisdic- ees or unpaid volunteers or any com- tion of the United States means real bination thereof. The location of any property and Federal improvements such organization and its responsi- thereon and appurtenances thereto in bility for extinguishment and suppres- which the United States holds legal fee sion of fires may include, but need not simple title. This excludes Federal be limited to, a State, city, town, bor- leasehold interests. This likewise ex- ough, parish, county, fire district, fire cludes Federal personal property on protection district, rural fire district, land in which the United States does or other special district. not hold fee simple title. (h) Mutual aid agreement means any (m) State means any State of the reciprocal agreement whether written United States of America, the District or oral between a Federal agency and of Columbia, the Commonwealth of the claimant fire service, or its parent Puerto Rico, the Virgin Islands, Guam, jurisdiction, for the purpose of pro- American Samoa, The Commonwealth viding fire protection for the property of the Northern Mariana Islands, the of the United States upon which the Trust Territory of the Pacific Islands, fire which gave rise to the claim oc- and any other territory or possession curred and for other property for which of the United States. the claimant normally provides fire protection. Such agreement must be primarily one of service rendered for Subpart B—Submission, service, or must be entered into under Determination, Appeal 42 U.S.C. 1856 through 1856d. Not in- § 151.11 Submission of claims. cluded are all other agreements and contracts, particularly those in which Any fire service in any State which the intent of the parties is that the believes it has a claim(s) cognizable United States pays for fire protection. under section 11 shall submit its (i) FEMA means the Federal Emer- claim(s) in writing within 90 days of gency Management Agency. the occurrence of the fire(s) for which a (j) Over and above normal operating ex- claim(s) is made. If the fire is of such penses means costs, losses and expenses duration that the claimant desires to which are not ordinarily and nec- submit a claim before its conclusion, it essarily associated with the mainte- may do so, but only for the eligible nance, administration, and day-to-day costs actually incurred to date. Addi- operations of a fire service and which tional claims may be filed for costs

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later incurred. Claims shall be sub- taxes and including all monies received mitted to the Director, FEMA, Wash- or receivable from the United States ington, DC, 20472. Each claim shall in- through any program or agreement include the following information: cluding categorical or block grants, (a) Name, address, jurisdiction and and contracts, by the claimant fire nature (volunteer, private, municipal, service or its parent jurisdiction for etc.) of claimant’s fire service organi- the support of fire services on the prop- zation; erty on which the fire occurred. If this (b) Name, title, address and tele- information is available when the phone number of individual authorized claim is submitted, it should accom- by the claimant fire service to make pany the claim. If it is not, the infor- this claim in its behalf and his/her cer- mation should be submitted as soon as tification as to the accuracy of the in- practicable, but no later than 15 days formation provided; after the end of the Federal fiscal year (c) Name and telephone number of in which the fire occurred. Federal employee familiar with the (Approved by Office of Management and facts of the event and the name and ad- Budget under control number 3067–0141) dress of the Federal agency having jurisdiction over the property on which § 151.12 Determination of amount au- the fire occurred; thorized for payment. (d) Proof of authority to fight the (a) The Director shall determine the fire (source of alarm, whether fire serv- amount to be paid on a claim (subject ice was requested by responsible Fed- to payment by the Department of the eral official or whether such an official Treasury). The amount to be paid is accepted the assistance when offered); the total of eligible expenses, costs and (e) Personnel and equipment com- losses under paragraph (a)(1) of this mitted to fighting of fire (type of section which exceeds the amount of equipment and number of items); and payments under paragraph (a)(2) of this an itemized list of direct expenses (e.g., section. The Director shall establish hours of equipment operation, fuel the reimbursable amount by deter- costs, consumables, overtime pay and mining: wages for any specially hired per- (1) The extent to which the fire serv- sonnel) and direct losses (e.g., damaged ice incurred additional firefighting or destroyed equipment, to include pur- costs, over and above its normal oper- chase cost, estimate of the cost of re- ating costs, in connection with the fire pairs, statement of depreciated value which is the subject of the claim, i.e., immediately preceding and subsequent the ‘‘amount of costs’’; and to the damage or destruction and the (2) What payments, if any, including extent of insurance coverage) actually taxes or payments in lieu of taxes, the incurred in fighting the fire. A state- fire service or its parent jurisdiction ment should be included explaining has received from the United States for why each such expense or loss is con- the support of fire services on the prop- sidered by the claimant not be a nor- erty on which the fire occurred. mal operating cost, or to be in excess The reimbursable amount is the of normal operating costs; amount, if any, by which the amount (f) Copy of fire report which includes of costs, determined under paragraph the location of the fire, a description of (a)(1) of this section exceeds the the property burned, the time of alarm, amount of payments determined under etc.; paragraph (a)(2) of this section. Where (g) Such other information or docu- more than one claim is filed the aggre- mentation as the Director considers gate reimbursable amount is the relevant to those considerations to be amount by which the total amount of made in determining the amount au- costs, determined under paragraph thorized for payment, as set forth in (a)(1) of this section exceed the amount § 151.12 of these regulations; of Federal payments (in the case of a (h) Source and amount of any pay- mutual aid agreement—its term or if ments received or to be received for the none is determinable, the Federal fis- fiscal year in which the fire occurred, cal year) determined under paragraph including taxes or payments in lieu of (a)(2) of this section.

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(b) The Director will first determine rector, FEMA, with respect to the the costs as contemplated in paragraph claim under § 151.12 (a), (b) and (c). (a)(1) of this section. The Director will (e) Upon receipt of written notifica- then notify the claimant as to that tion from the claimant of its intention amount. The claimant must indicate to accept the amount authorized as full within 30 days its acceptance or rejec- settlement of the claim, accompanied tion of that amount. by a properly executed document of re- (1) If the determination is accepted lease, the Director will forward the by the claimant, this will be the final claim, a copy of the Director’s deter- and conclusive determination of the mination and the claimant’s document amount of costs by the claimant in of release to the Secretary of the conjunction with the fire for which the Treasury for payment of the claim in claims are submitted. the amount authorized. (f) Subject to the discovery of addi- (2) If the claimant rejects this tional material evidence, the Director amount, it must notify the Director, may reconsider any determination in within 30 days, of its reasons for its re- this section, whether or not made as jection. Upon receipt of notification of his final determination. rejection, the Director shall reconsider his determination and notify the [49 FR 5929, Feb. 16, 1984, as amended at 49 claimant of the results of the reconsid- FR 38119, Sept. 27, 1984] eration. The amont determined on re- § 151.13 Reconsideration of amount au- consideration will constitute the costs thorized for payment. to be used by the Director in determining the reimbursable amount. (a) If the claimant elects to protest the amount authorized for payment, (c) Upon receipt of documentation after the applicable procedures of from the claimant on the amount of § 151.12 have been followed, it must payments the Federal Government has within 30 days of receipt of notification made for the support of fire services on of the amount authorized notify the the property in question, the Director Director in writing of its objections will, following such verification or in- and set forth the reasons why the Di- vestigation as the Director may deem rector should reconsider the deter- appropriate, calculate the full amount mination. The Director will upon no- to be reimbursed under the section 11 tice of protest and receipt of additional formula as set forth in § 151.12(a). This evidence reconsider the determination calculation of the reimbursable of the amount of Federal payments amount is based upon the costs deter- under § 151.12(a)(2) but not the determined pursuant to § 151.12(b) and the mination of the amount of costs under documentation of Federal payments § 151.12(a)(1). The Director shall cause a that the claimant submitted. reconsideration by the Secretary of the (d) The Director’s determination of Treasury of the amount actually avail- the reimbursable amount will be sent able and authorized for payment by the to the Secretary of the Treasury. The Treasury. The Director, upon receipt of Secretary of the Treasury shall, upon the Secretary of the Treasury’s recon- receipt of the claim and determination sidered determination, will notify the made under § 151.12 (a), (b), and (c), de- claimant in writing of the amount au- termine the amount authorized for thorized, upon reconsideration, for pay- payment, which shall be the amount ment in full settlement of the claim. actually available for payment from (b) If the claimant elects to accept any monies in the Treasury not other- the amount authorized, upon reconsid- wise appropriated but subject to reim- eration, for payment in full settlement bursement (from any appropriations of its claims, it must within 30 days (or which may be available or which may a longer period of time acceptable to be made available for the purpose) by the Director) of its receipt of that de- the Federal department or agency termination notify the Director of its under whose jurisdiction the fire oc- acceptance in writing accompanied by curred. This shall be a sum no greater, a properly executed document of re- although it may be less, that the reim- lease. Upon receipt of such notice and bursable amount determined by the Di- document of release, the Director will

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forward the claim, a copy of the Direc- PART 152—ASSISTANCE TO tor’s final determination, and the FIREFIGHTERS GRANT PROGRAM claimant’s document of release to the Secretary of the Treasury for payment Sec. of the claim in the amount of final au- 152.1 Purpose and eligible uses of grant thorization. funds. 152.2 Definitions. § 151.14 Adjudication. 152.3 Availability of funds. 152.4 Roles and responsibilities. If the claimant, after written notice 152.5 Review process and evaluation cri- by the Director of the amount author- teria. ized for payment in full settlement of 152.6 Application review and award process. the claim and after all applicable pro- 152.7 Grant payment, reporting and other cedures of §§ 151.12 and 151.13 have been requirements. followed elects to dispute the amount 152.8 Application submission and deadline. authorized, it may then initiate action 152.9 Technical or procedural error. in the United States Claims Court, AUTHORITY: 15 U.S.C. 2201 et seq.; Pub.L. which shall have jurisdiction to adju- 107–73, 115 Stat. 688. dicate the claim and enter judgment in SOURCE: 67 FR 9148, Feb. 27, 2002, unless accordance with section 11(d) of the otherwise noted. Act. § 152.1 Purpose and eligible uses of grant funds. Subpart C—Administration, (a) This competitive grant program Penalties will provide funding directly to fire departments of a State for the purpose of § 151.21 [Reserved] enhancing the department’s ability to § 151.22 Audits. protect the health and safety of the public, as well as that of firefighting At the discretion of the Director, all personnel, facing fire and fire-related claims submitted under section 11 of hazards. In order to achieve this stated the Act and all records of the claimant intent we invite fire departments to will be subject to audit by the Director apply for assistance in any one (1) of or his/her designee. In addition, the the four (4) program areas described in Comptroller General of the United paragraphs (a)(1) through (4) of this States or his/her designee shall have section. access to all books and records of all (1) Fire Operations and Firefighter claimants making claims under section Safety Program. Appropriate activities 11. under this program area include: Training, Wellness and Fitness, Fire- § 151.23 Penalties. fighting Equipment and Personal Pro- Claimant’s officials or others who tective Equipment. Applicants can provide information or documentation apply for as many related activities under this function as necessary. under this part are subject to, among (i) Training Activities: (A) Training other laws, the criminal penalties of firefighting personnel in fire-fighting, Title 18 of the United States Code, sec- emergency response, supervision and tions 287 and 1001, which punish the safety, arson prevention and detection, submission of false, fictitious or fraud- handling of hazardous materials, or ulent claims and the making of false, training firefighting personnel to pro- fictitious or fraudulent statements and vide training in any of these areas. Eli- which provide for a fine of not more gible uses of training funds include but than $10,000 or imprisonment for not are not limited to purchase of training more than five years, or both. For such curricula, training equipment and a violation, the person is likewise sub- props including trailers, training serv- ject to the civil penalties set out in 31 ices, attendance at formal training fo- U.S.C. 3729 and 3730. rums, etc. Tow vehicles or other means

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of transport may be eligible as a trans- defined herein (i.e., limited to minor portation expense if adequately justi- interior alterations costing less than fied in the proposal, but transportation $10,000). expenses will be limited to $6,000 per (iii) Firefighting Equipment Acquisi- year. Compensation to volunteer fire- tion: (A) Acquiring additional firefighters for wages lost as a result of at- fighting equipment, including equip- tending training under this program is ment needed directly for fire suppres- an eligible expense if justified in the sion or to enhance the safety or effec- grant proposal. Overtime expenses paid tiveness of firefighting or rescue ac- to career firefighters to attend train- tivities. Compressor systems, cascade ing, or overtime expenses paid to fire- systems, or similar SCBA refill sys- fighters to cover for their colleagues tems are eligible expenditures in this while their colleagues are in training, area as are individual communications is an eligible expense if justified in the and accountability systems. The cost grant proposal. Even though compensa- of shipping equipment purchased under tion is an eligible expense, proposals this program is also an eligible ex- that contain such compensation expense. Thermal imaging cameras are penses may be less favorable than simi- eligible but the number of cameras lar proposals without compensation ex- that can be purchased with grant funds penses due to the benefit/cost element will be limited based on the population in the evaluation process. served by the department applying for (B) Activities that are not eligible in assistance. Departments that serve this area include construction of facili- communities of less than 20,000 can ties such as classrooms, buildings, tow- purchase one thermal imaging camera ers, etc. Modifications to an existing with grant funds if awarded a grant; facility are allowable if the modifica- departments serving communities be- tions involve only minor renovation as tween 20,000 and 50,000 can purchase for defined herein (i.e., limited to minor two cameras with grant funds if award- interior alterations costing less than ed a grant; and, departments serving $10,000). communities of over 50,000 can pur- (ii) Wellness and Fitness Activities: (A) chase three cameras with grant funds if Establishing and/or equipping wellness awarded a grant. Portable radios and/or and fitness programs for firefighting mobile communications equipment (in- personnel, including the procurement cluding mobile repeaters) are eligible. of medical services to ensure that the (B) Integrated communications sys- firefighting personnel are physically tems (or parts thereof), such as com- able to carry out their duties (purchase puter-aided dispatch, towers, repeaters, of medical equipment is not eligible etc., are not eligible under this activ- under this activity). Expenses to carry ity. Vehicles, as defined herein, are not out wellness and fitness activities that eligible under this activity. include costs such as personnel (i.e., (iv) Personal Protective Equipment Ac- health-care consultants, trainers, and quisition: (A) Acquiring personal pro- nutritionists), physicals, equipment tective equipment required for fire- (including shipping), supplies, and fighting personnel as approved by the other related contract services that are Occupational Safety and Health Ad- directly associated with the implemen- ministration, and other personal pro- tation of the proposed activity are eli- tective equipment for firefighting per- gible. sonnel to enhance their operational (B) Transportation expenses and fit- safety. Eligible personal protective ness club memberships for the fire- equipment includes clothing such as fighters or their families would not be ‘‘Turnout Gear’’ or ‘‘Bunker Gear’’ (ineligible under the wellness and fitness cluding boots, pants, coats, gloves, program. Other activities that are not hoods, goggles, vests, and helmets), eligible in this area include construc- self-contained breathing apparatus, tion of facilities to house a fitness pro- spare cylinders, and personal alert gram such as exercise or fitness rooms, safety systems. showers, etc. Modifications to an exist- (B) The purchase of three-quarter ing facility are allowable if the modi- length rubber boots is an ineligible ex- fications involve only renovations as penditure under this activity. Uniforms

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(formal/parade or station/duty) or uni- (4) Firefighting Vehicles Program. Eli- form items (hats, badges, etc.) are also gible apparatus under this function in- not eligible expenditures under this ac- cludes, but is not limited to, pumpers, tivity. engines, brush trucks, tankers, rescue, (2) Fire Prevention Programs. (i) Appli- ambulances, quints, aerials, foam cants can apply for as many related ac- units, and boats. Applicants may apply tivities under this function as nec- for only one vehicle under this program essary. Appropriate activities in this per year. Eligible expenses under this program include: Public Education, program would include the cost of the Public Awareness, Enforcing Fire vehicle and associated equipment nec- Codes, Inspector Certification, Pur- essary to conform to applicable na- chase and Install Smoke Alarms, and tional standards. Due to their cost, Arson Prevention and Detection Ac- aerials and quints have a lower benefit tivities. Eligible expenses to carry out than pumpers, engines, tankers, and these activities would include costs brush trucks. New, used or refurbished such as fire education safety trailer, vehicles are eligible. Custom vehicles personnel, transportation, equipment, are eligible, but they may not be as fa- supplies, and contracted services which vorably evaluated as a lower costing are directly associated with the imple- commercial vehicle. An allowance for mentation of the proposed activity. transportation to inspect a vehicle Tow vehicles or other means of trans- under consideration or during a vehi- port may be eligible as a transpor- cle’s production would be eligible if in- tation expense if adequately justified cluded in the grant proposal. in the proposal, but transportation ex- (b) Other costs. (1) Administrative penses will be limited to $6,000 per costs are allowable under any of the year. program areas listed in paragraph (a)(1) (ii) Construction is not eligible under through (4) of this section in accord- this program. A safety village that is ance with OMB Circular A–87. (See 5 not transportable would be considered CFR 1510.3 for availability of OMB cir- construction, and therefore, not eligi- culars.) Applicants may apply for ad- ble. ministrative costs if the costs are di- (3) Emergency Medical Services Pro- rectly related to the implementation of gram. (i) Applicants can apply for as the program for which they are apply- many related activities under this ing. Applicants must list their costs function as necessary. Appropriate ac- under the ‘‘other’’ category in their tivities in this program are training budget and explain what the costs are (instructional costs (i.e., books, mate- for in their project narrative. Examples rials, equipment, supplies, and exam of eligible administrative costs would fees), certification/re-certification ex- be shipping, computers, office supplies, penses, and continuing education pro- etc. grams) and equipment (defibrillators, (2) Applicants that have an approved basic and advanced life support equip- indirect cost rate may charge indirect ment, universal precaution supplies costs to the grant if they submit the (i.e., medical PPE) mobile and portable documentation that supports the rate communication equipment, computers, to us. We will allow the rate to be ap- expendable supplies, and infectious dis- plied as long as it is consistent with its ease control and decontamination sys- established terms. For example, some tems). Tow vehicles or other means of indirect cost rates may not apply to transport may be eligible as a trans- capital procurements; in this case, in- portation expense if adequately justi- direct cost rates would not apply for a fied in the proposal, but transportation grant to purchase equipment or a vehi- expenses will be limited to $6,000 per cle. year. (3) Some applicants with large (ii) Not eligible in this program are awards may be required to undergo an vehicles such as ambulances, medica- audit in accordance with OMB Circular tions and integrated communication A–133, specifically, any recipient of systems (or parts thereof), such as Federal funding that spends in excess computer aided dispatch, towers, fixed of $300,000 of those funds in a year. The repeaters, etc. costs incurred for such an audit would

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be an expenditure that is eligible for thority (city, county, parish, fire dis- reimbursement if included in the budg- trict, township, town, or other non- et proposal. Federal governing body) to provide fire (4) The panelists will review the ap- suppression, fire prevention and rescue plications that make it into the com- services within a fixed geographical petitive range and judge each applica- area. tion on its own merits. The panelists (1) A fire department can apply for will consider all expenses budgeted, in- assistance for its emergency medical cluding administrative and indirect, as services unit provided the unit falls or- part of the cost-benefit determination. ganizationally under the auspices of the fire department. § 152.2 Definitions. (2) Fire departments that are Fed- Active firefighter is a member of a fire eral, or contracted by the Federal gov- department or organization in good ernment and whose sole responsibility standing that is qualified to respond to is suppression of fires on Federal in- and extinguish fires or perform other stallations, are not eligible for this fire department emergency services grant program. Fire departments or and has actively participated in such fire stations that are not independent activities during the past year. but are part of, or controlled by a larg- Career department is a fire suppression er fire department or agency are typi- agency or organization in which all ac- cally not eligible. Fire departments tive firefighters are assigned regular that are for-profit departments (i.e., do duty shifts and receive financial com- not have specific non-profit status or pensation for their services rendered on are not municipally based) are not eli- behalf of the department. gible to apply for assistance under this Combination department is a fire sup- program. Also not eligible for this pro- pression agency or organization in gram are ambulance services, rescue which at least one active firefighter re- squads, auxiliaries, dive teams, urban ceives financial compensation for his/ search and rescue teams, fire service her services rendered on behalf of the organizations or associations, and department and at least one active State/local agencies such as a forest firefighter does not receive financial service, fire marshal, hospitals, and compensation for his/her services ren- training offices. dered on behalf of the department other than life/health insurance, work- Firefighter see the definition of Active men’s compensation insurance, length firefighter in this section. of service awards, pay per-call or per- First-due response area is a geo- hour, or similar token compensation. graphical area in proximity to a fire or Construction is the creation of a new rescue facility and normally served by structure or any modification of the the personnel and apparatus from that footprint or profile of an existing facility in the event of a fire or other structure. Changes or renovations to emergency as the first responders. an existing structure that do not Formally recognized arrangement is an change the footprint or profile of the agreement between the fire department structure but exceed either $10,000 or 50 and a local jurisdiction such that the percent of the value of the structure, jurisdiction has publicly deemed that are also considered construction. the fire department has the first-re- Changes that are less than $10,000 and/ sponse responsibilities within a fixed or 50 percent of the value of the struc- geographical area of the jurisdiction. ture are considered renovations. Often this agreement is recognized or Direct delivery of training is training reported to the appropriate State enti- conducted within a training organiza- ty with cognizance over fire depart- tion’s own jurisdiction using the orga- ment such as registration with the nization’s own resources (trainers, fa- State Fire Marshal’s office or the cilities, equipment, etc.). agreement is specifically contained in Fire department or fire department of a the fire department’s or jurisdiction’s State is an agency or organization that charter. has a ‘‘formally recognized arrange- Integrated communication systems and ment’’ with a State, local or tribal au- devices are equipment or systems for

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dispatch centers or communication in- Volunteer Department is a fire sup- frastructure. Examples of these include pression agency or organization in 911 systems, computer-aided dispatch which no active firefighters are consid- systems, global positioning systems, ered full-time employees, and which no towers, fixed repeaters, etc. members receive financial compensa- New mission is a first-responder function for their services rendered on be- tion that a department has never deliv- half of the department other than life/ ered in the past or that was once deliv- health insurance, workers’ compensa- ered but has since been abandoned by tion insurance, length of service the department due to the lack of fund- awards, pay per-call or per-hour, or ing or community support. Examples similar token compensation. include technical search and rescue, emergency medical services, hazardous § 152.3 Availability of funds. materials response, etc. A new mission (a) Fire departments that have re- does not include services already pro- ceived funding under the Assistance to vided from existing facilities. Opening Firefighter Grant Program in previous additional stations to provide similar years are eligible to apply for funding services would be considered an expan- in the current year. No applicant can sion of existing services. receive more than $750,000 in Federal Population means permanent resi- grant funds under this program in any dents in the first-due response area or fiscal year. The awards made under the jurisdiction served by the applicant. It Assistance to Firefighter Grant Pro- does not include seasonal population or gram are for one year only. The period any population in area that the fire de- of performance will be detailed in the partment responds to under mutual/ award documents provided each grant- automatic aid agreements. ee. Prop is something that can be held up (b) The scoring of the applications in a classroom or moved from site to will determine the distribution of the site in order to facilitate or enhance funding among the eligible programs. the training experience. A training Notwithstanding anything in this part, tower (pre-fabricated or constructed) is no more than 25 percent of the grant not a prop. funds shall be used to assist recipients Renovation means changes or alter- to purchase firefighting vehicles and ations or modifications to an existing not less than 5 percent of all funds ap- structure that do not exceed either propriated for firefighter assistance $10,000 or 50 percent of the value of the shall be available for fire prevention structure and do not involve a change programs. in the footprint or profile of the struc- (c) We will not provide assistance ture. under this part for activities for which State means any of the fifty States, another Federal agency has more spe- the District of Columbia, Puerto Rico, cific or primary authority to provide the U.S. Virgin Islands, Guam, Amer- assistance for the same purpose. We ican Samoa, and the Commonwealth of may disallow or recoup amounts that the Northern Mariana Islands. fall within other Federal agency’s au- Supplies means any expendable prop- thority. erty that typically has a one-time use limit and an expectation of being re- § 152.4 Roles and responsibilities. placed within one year. Vehicle is a mechanized device used (a) Applicants must: for carrying passengers, goods, or (1) Complete the application and cer- equipment. Examples of vehicles in- tify to the accuracy of the application; clude, but are not limited to: pumpers, (2) Certify that they are an eligible brush trucks, tankers, tenders, attack applicant, i.e., a fire department, as de- pumpers, rescue (transport and non- fined in this rule; transport), ambulances, foam units, (3) Certify as to the characteristics of quints, aerials, ladders, towers, hazmat their community, i.e., urban, suburban, vehicles, squads, crash rescue (ARFF), or rural; boats, hovercraft, planes, and heli- (4) Certify to the size of the popu- copters. lation of the community served; and,

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(5) Certify to the type of department, of its strategic plan are to reduce i.e., volunteer/combination or career. losses of life and reduce economic (b) Recipients (Grantees) must agree losses due to fire and related emer- to: gencies. Specific target groups are chil- (1) Share in the costs of the projects dren under 14 years old, seniors over 65 funded under this grant program. Fire years old, and firefighters. departments in areas serving popu- (2) We will ensure that not more than lations over 50,000 must agree to match twenty-five percent (25%) of the appro- the Federal grant funds with an priated funding will be used to pur- amount of non-Federal funds equal to chase firefighting vehicles. 30 percent (30%) of the total project (3) We will ensure that not less than cost. Fire departments serving areas five percent (5%) of the appropriated with a population of 50,000 or less will funds are made available to national, have to match the Federal grant funds State, local, or community organiza- with an amount of non-Federal funds tions, including fire departments, for equal to 10 percent (10%) of the total the purpose of carrying out fire preven- project cost. All cost-share contribution programs. tions must be cash. No ‘‘in-kind’’ con- (4) We will ensure that fire depart- tributions will be considered for the ments with volunteer staff, or staff statutorily required cost-share. No comprised of a combination of career waivers of this requirement will be fire fighters and volunteers, receive a granted except for fire departments of proportion of the total grant funding Insular Areas as provided for in 48 that is not less than the proportion of U.S.C. 1469a. the United States population that (2) Maintain operating expenditures those firefighting departments protect. in the areas funded by this grant activ- (5) We will ensure that grants are ity at a level equal to or greater than made to fire departments located in the average of their operating expendi- urban, suburban, and rural commu- tures in the two years preceding the nities. year in which this assistance is re- (6) We will strive to ensure geo- ceived. graphic diversity of awards as stipu- (3) Retain grant files and supporting lated in §152.6. documentation for three years after the conclusion of the grant. § 152.5 Review process and evaluation (4) Report to FEMA on the progress criteria. made on the grant and financial status (a) We will use the narratives/supple- of the grant. mental information provided by the ap- (5) Make their grant files, books and plicants in their grant applications to records available if requested for an evaluate, on a competitive basis, the audit to ensure compliance with any merits and benefits of each request for requirement of the grant program. funding. In selecting applications for (6) Provide information to the U.S. award, we will evaluate each applica- Fire Administration (USFA) national tion for assistance independently based fire incident reporting system (NFIRS) on established eligibility criteria, the for the period covered by the assist- program priorities, the financial needs ance. If a grantee does not currently of the applicant, and an analysis of the participate in the incident reporting benefits that would result from the system and does not have the capacity grant award. Every application will be to report at the time of the award, that evaluated based on the answers to the grantee must agree to provide informa- activity-specific questions during our tion to the system for a twelve-month initial screening. The applications that period commencing as soon as they de- are determined to best address the As- velop the capacity to report. sistance to Firefighters Grant Pro- (c) FEMA activities: (1) We will ensure gram’s established priorities during that the funds are awarded based on this initial screening will be in the the priorities and expected benefits ar- ‘‘competitive range’’ and subject to a ticulated in the statute, this part 152, second level of review. and USFA’s strategic plan. USFA’s (b)(1) In order to be successful at this operational and performance objectives level of the evaluation, an applicant

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must complete the narrative section of activity and then an overall or sum- the application package. The narrative mary budget would have to be gen- should include a detailed description of erated. For those applicants applying the planned activities and uses for the on line, the summary budget will be grant funds including details of each automatically generated by the e-grant budget line item. For example, if per- system. sonnel costs are included in the budget, (e) Specific rating criteria for each of please provide a break down of what the eligible programs follow in para- those costs are for. The narrative graphs (e)(1) through (4) of this section. should explain why the grant funds are These rating criteria will provide an needed and why the department has understanding of the grant program’s not been able to obtain funding for the priorities and the expected cost effec- planned activities on its own. A discus- tiveness of any proposed projects. sion of financial need should include a (1) Fire Operations and Firefighter discussion of any Federal funding re- Safety Program—(i) Training Activities. ceived for similar activities. Finally, We believe that more benefit is derived the applicant’s narrative will detail the from the direct delivery of training benefits the department or community than from the purchase of training ma- will realize as a result of the grant terials, equipment or props. Therefore, award. applications focused on direct delivery (2) Applicants may seek assistance in of training will receive a higher com- formulating their cost-benefit state- petitive rating. We also believe that ment or any other justification re- funding of basic firefighting training to quired by the application by contacting an operational level (i.e., training in our Grant Program Technical Assist- ance Center at 866–274–0960 or by email basic firefighting duties or operating at [email protected]. We will fire apparatus) has greater cost-benefit also place information to assist you in than funding of officer training. Like- the development of a competitive grant wise, we feel there is a greater cost- application on the FEMA/USFA benefit to officer training than for websites. other specialized training. Train-the- (c) This second level of review will be trainer activities are rated high due to conducted using a panel of technical the obvious return on investment. We evaluation panelists that assess the ap- will also accord higher rating to pro- plication’s merits with respect to the grams achieving benefits from statu- clarity and detail provided in the nar- torily required training over non-man- rative about the project, the appli- datory or strictly voluntary training. cant’s financial need, and the project’s Finally, we will rate more highly those purported benefit to be derived from programs that benefit the highest per- the cost. The technical evaluation pan- centage of targeted personnel within a elists will independently score each ap- fire department. Training designated plication before them and then discuss for Rapid Intervention Teams will have the merits/shortcomings of the applica- a slightly higher competitive advan- tion in an effort to reconcile any major tage. discrepancies. A consensus on the score (ii) Wellness and Fitness Activities. We is not required. The highest scoring ap- believe that in order to have an effec- plications will then be considered for tive wellness/fitness program, fire de- award. We seek to maximize the bene- partments must offer both an entry fits derived from the funding by cred- physical examination and an immuni- iting applicants with the greatest fi- zation program. Accordingly, appli- nancial need and whose proposed ac- cants in this category must currently tivities provide the greatest benefit. offer both benefits, or must propose to (d) In addition to the project nar- initiate both a physical examination rative, the applicant must provide an and an immunization program with itemized budget detailing the use of these grant funds in order to receive the grant funds. If an applicant is seek- additional consideration for funding ing funds in more than one eligible ac- this activity. We believe the greatest tivity within a program, separate budg- benefit will be realized by supporting ets will have to be generated for each new wellness and fitness programs, and

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therefore, we will accord higher com- egory to fire departments in which a petitive ratings to those applicants large percentage of their active fire- lacking wellness/fitness programs over fighting staff do not have any personal those applicants that already possess a protective equipment and to depart- wellness/fitness program. We believe ments that wish to purchase enough that programs with annual physicals PPE to equip one hundred percent and general health screening provide (100%) of their active firefighting staff. high benefits and programs with inci- The goal is to provide all active fire- dent rehabilitation, formal fitness regi- fighters with a complete set of equipments, and/or injury prevention compo- ment, breathing apparatus as well as nents offer significant benefits. Fi- turnout gear. We will also give a higher nally, since participation is critical to competitive rating to departments that achieving any benefits from a wellness are purchasing the equipment for the or fitness program, we will give higher first time as opposed to departments competitive rating to departments replacing obsolete or substandard whose wellness and fitness programs equipment (e.g., equipment that does mandate participation as well as pro- not meet current National Fire Protec- grams that provide incentives for par- tion Association (NFPA) and Occupa- ticipation. tional Safety and Health Administra- (iii) Firefighting Equipment Acquisi- tion (OSHA) standards), or purchasing tion. We believe that this grant pro- equipment for a new mission. Depart- gram will achieve the greatest benefits ments that are replacing used gear if we provide funds to fire departments that is very old, will be afforded a high- purchasing basic firefighting equip- er competitive rating than a department. We will afford departments buy- ment whose gear is relatively new. We ing basic firefighting equipment for the will provide a higher competitive rat- first time (equipment never owned being to departments requesting inte- fore) a higher competitive rating than grated Personal Accountability Safety departments buying replacement System (PASS) devices than to those equipment or equipment that will be departments that are requesting non- used to expand the department’s capa- integrated PASS devices. We also be- bilities into new mission areas. We believe it is more cost beneficial to fund lieve there is more benefit realized to departments that have a high volume bring a department up to the applica- of responses per year before funding ble minimum standard (i.e., as required less active departments. Equipment by statute, regulation, or professional designated for Rapid Intervention firefighting guidance), rather than to Teams will have a slightly higher com- the department that is replacing equip- petitive advantage. ment or enhancing capabilities. Be- (2) Fire Prevention Program. We because of the obvious benefits, we will lieve that the public as a whole will re- also give higher competitive rating to ceive the greatest benefit by creating departments that are mainly pur- new fire prevention programs. chasing equipment designed to protect (i) Our priority is to target these the safety of the firefighters. Equip- funds to fire departments that do not ment designated for Rapid Intervention have an existing fire prevention pro- Teams will have a slightly higher com- gram as opposed to those departments petitive advantage. that already have such a program. (iv) Personal Protective Equipment Ac- Also, we believe the public will benefit quisition. One of the stated purposes of greatly from establishing fire preven- this grant program is to protect the tion programs that will continue be- health and safety of firefighters. In yond the grant year as opposed to lim- order to achieve this goal and maxi- ited efforts. Therefore, we will give a mize the benefit to the firefighting higher competitive rating to programs community, we believe that we must that will be self-sustaining after the fund those applicants needing to pro- grant period. vide personal protective equipment (ii) Because of the benefits to be at- (PPE) to a high percentage of their per- tained, we will give a higher competi- sonnel. Accordingly, we will give a tive rating to programs that target one high competitive rating in this cat- or more of USFA’s identified high-risk

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populations (i.e., children under four- than by providing funding to a depart- teen years of age, seniors over sixty- ment with numerous vehicles. There- five and firefighters), and programs fore, we will give a higher competitive whose impact is/will be periodically rating in the apparatus category to fire evaluated. departments that own few or no fire- (iii) We believe that public education fighting vehicles. We will also give programs, programs that develop and higher competitive rating to depart- enforce fire codes and standards, and ments that have not recently pur- arson prevention and detection pro- chased a new firefighting vehicle, and grams have a high benefit, therefore, departments that wish to replace an they will receive the highest competi- old, high-mileage vehicle or a vehicle tive rating. that has sustained a high number of re- (iv) We also believe programs that sponses. purchase and install residential and (ii) Because of the significant cost of public detection and suppression sys- certain types of apparatus and the lim- tems provide significant benefits. ited amount of funding available in (v) Programs that are limited to the this program, we do not believe that it purchase of public information mate- would be cost effective to fund vehicles rials and presentation aids and equip- with ladder or aerial apparatus. There- ment achieve the least benefit, therefore, we will lower the competitive rat- fore, these types of activities will re- ing of applications proposing such pur- ceive a lower competitive rating. chases. (3) Emergency Medical Services Pro- (iii) Vehicles that are for basic fire- gram. Our overall objective in this pro- fighting operations (i.e., pumpers, gram is to elevate all emergency med- tankers, and brush trucks) are consid- ical services to an intermediate life- ered to have higher benefits than vehi- support level (i.e., EMT–D or EMT–I). cles that have limited or specialized (i) We believe that enhancing or ex- uses. panding an existing service that cur- (iv) We believe that more benefit will rently meets basic life-support to an intermediate life-support system would accrue to a community that needs a realize the most benefit. We will give a new vehicle (i.e., the initial purchase of higher competitive rating to fire de- a new or used vehicle) than for commu- partments that are planning on acquir- nities that need to replace a vehicle ing an intermediate life-support sys- that does not conform to applicable tem than to those that wish to reach a standards. Replacing a vehicle has basic life-support level. more benefit than purchasing a vehicle (ii) We also believe that it is more to expand the operational capacity of a cost effective to expand an existing department into a new mission area. service than it would be to create a (v) While no competitive advantage new service. Therefore, we will give a has been assigned to the purchase of higher competitive rating for fire de- commercial vehicles versus custom ve- partments that are enhancing their ex- hicles, or used vehicles versus new ve- isting service over those that do not hicles in the preliminary evaluation of have an emergency medical service. applications, it has been our experience (iii) While we support CPR and first- that depending on the type and size of responder level training, we will afford department, the technical evaluation a lower priority to train firefighters in panelists often prefer low-cost vehicles basic emergency medical technology when evaluating the cost/benefit sec- (EMT–B) certification levels. We do not tion of the project narratives. Panel- believe that it is our mission to create ists will be provided with guidance emergency medical services in areas (such as the General Services Adminis- where the local authorities have not tration’s price schedules) for use in yet committed to providing such serv- their evaluation on the reasonableness ices. of vehicle costs. (4) Firefighting Vehicle Program. (i) We (vi) Finally, we believe that it would believe that more benefit will be real- be more beneficial to the nation if we ized by funding fire departments that gave these vehicle awards to as many own few or no firefighting apparatus fire departments as possible, therefore,

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we will allow each fire department to needs under FEMA regulations (44 CFR apply for only one vehicle per year. 13.21). (b) Generally, fire departments § 152.6 Application review and award should not use grant funds to pay for process. products and services contracted for, or (a) As stated in §152.5, we will evalu- purchased prior to the effective date of ate each application in the preliminary the grant. However, we will consider screening process to determine which requests for reimbursement for these applications best address the program’s on an exceptional basis. Expenses in- established priorities. The best applica- curred after the application deadline tions as determined in this preliminary but prior to award may be eligible for step will be deemed to be in the ‘‘com- reimbursement if the expenses were petitive range.’’ All applications in the competitive range will be subject to a justified, unavoidable, consistent with second level review by a technical eval- the scope of work, and specifically ap- uation panel. Using the evaluation cri- proved by us. teria delineated in §152.5, the panelists (c) The recipients of funding under will score each application they evalu- this program must report to us on how ate. The assigned score will reflect the the grant funding was used and the degree to which the applicant: clearly benefits that resulted from the grant. relates their proposed project; dem- This will be accomplished via submis- onstrates financial need; and, details a sion of a final report. Details regarding high benefit to cost value of the pro- the reporting requirements will be proposed activities. vided in the Articles of Agreement pro- (b) Our award decisions will be based vided to each grantee. Additionally, on the stated priorities of the grant fire departments that receive funding program, the demonstrated need of the under this program must agree to pro- applicant, and the benefits to be de- vide information to the national fire rived from the proposed projects. We incident reporting system (NFIRS) for will make awards on a competitive the period covered by the assistance. If basis, i.e., we will fund the highest a grantee does not currently partici- scored applications before considering pate in the incident reporting system lower scored applications. and does not have the capacity to re- (c) In order to fulfill our obligations port at the time of the award, that under the law, we may also make fund- grantee must agree to provide informa- ing decisions using rank order as the preliminary basis then based on the tion to the system for a twelve-month type of fire department (paid, volun- period commencing as soon as they de- teer, or combination fire departments), velop the capacity to report. the size and character of the community it serves (urban, suburban, or § 152.8 Application submission and deadline. rural), and the geographic location of the fire department. In these instances For each year that this program is where we are making decisions based authorized after fiscal year 2002, we on geographic location, we will use will announce the grants availability States as the basic geographic unit. via Notice of Funds Availability. That notice will contain all pertinent infor- § 152.7 Grant payment, reporting and mation concerning the eligible funding other requirements. activities, priority funding levels (as (a) Grantees will have twelve months appropriate), application period, to incur obligations to fulfill their re- timelines, and deadlines. sponsibilities under this grant program. The performance period of each § 152.9 Technical or procedural error. grant will be detailed in the Articles of (a) We will review our decision with Agreement that we provide each grantee. Grantees may request funds from us respect to a particular application only as reimbursement for expenditures where the applicant alleges that we made under the grant program or they have made a material technical or pro- may request funds for immediate cash cedural error and can substantiate

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such allegation. Requests for reconsid- findings of an independent panel of ex- eration based upon technical or proce- perts, we will not entertain requests dural error should be directed to: Di- for reconsideration based upon the rector, Grants Program Office, U.S. merits of an original application. Simi- Fire Administration, FEMA, 500 C larly, we will not consider new infor- Street, SW., room 304, Washington, DC mation provided after the submission 20472. of the original application. In the case (b) We must receive a request for re- of new information, we encourage ap- consideration under paragraph (a) of plicants to incorporate said informa- this section within 60 days of the date tion into their applications for future of the notice of our decision. grant cycles. (c) As grants are awarded on a competitive basis, in accordance with the PARTS 153–199 [RESERVED]

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PART 200 [RESERVED] Hazard mitigation means any sustained action taken to reduce or eliminate the long-term risk to human life PART 201—MITIGATION PLANNING and property from hazards. Hazard Mitigation Grant Program Sec. means the program authorized under 201.1 Purpose. section 404 of the Stafford Act, 42 U.S.C 201.2 Definitions. 5170c and implemented at 44 CFR Part 201.3 Responsibilities. 206, Subpart N, which authorizes fund- 201.4 Standard State Mitigation Plans. ing for certain mitigation measures 201.5 Enhanced State Mitigation Plans. 201.6 Local Mitigation Plans. identified through the evaluation of natural hazards conducted under sec- AUTHORITY: Robert T. Stafford Disaster tion 322 of the Stafford Act 42 U.S.C Relief and Emergency Assistance Act, 42 5165. U.S.C. 5121–5206; Reorganization Plan No. 3 of Indian tribal government means any 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Federally recognized governing body of E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 an Indian or Alaska Native tribe, band, Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 nation, pueblo, village, or community CFR, 1989 Comp., p. 214. that the Secretary of Interior acknowledges to exist as an Indian tribe under SOURCE: 67 FR 8848, Feb. 26, 2002, unless the Federally Recognized Tribe List otherwise noted. Act of 1994, 25 U.S.C. 479a. This does § 201.1 Purpose. not include Alaska Native corporations, the ownership of which is vested (a) The purpose of this part is to pro- in private individuals. vide information on the polices and Local government is any county, mu- procedures for mitigation planning as nicipality, city, town, township, public required by the provisions of section authority, school district, special dis- 322 of the Stafford Act, 42 U.S.C. 5165. trict, intrastate district, council of (b) The purpose of mitigation plan- governments (regardless of whether the ning is for State, local, and Indian trib- council of governments is incorporated al governments to identify the natural as a nonprofit corporation under State hazards that impact them, to identify law), regional or interstate government actions and activities to reduce any entity, or agency or instrumentality of losses from those hazards, and to estab- a local government; any Indian tribe or lish a coordinated process to imple- authorized tribal organization, or Alas- ment the plan, taking advantage of a ka Native village or organization; and wide range of resources. any rural community, unincorporated town or village, or other public entity. § 201.2 Definitions. Managing State means a State to Grantee means the government to which FEMA has delegated the author- which a grant is awarded, which is ac- ity to administer and manage the countable for the use of the funds pro- HMGP under the criteria established vided. The grantee is the entire legal by FEMA pursuant to 42 U.S.C. entity even if only a particular compo- 5170c(c). FEMA may also delegate au- nent of the entity is designated in the thority to tribal governments to ad- grant award document. Generally, the minister and manage the HMGP as a State is the grantee. However, after a Managing State. declaration, an Indian tribal govern- Regional Director is a director of a re- ment may choose to be a grantee, or gional office of FEMA, or his/her des- may act as a subgrantee under the ignated representative. State. An Indian tribal government Small and impoverished communities acting as grantee will assume the re- means a community of 3,000 or fewer sponsibilities of a ‘‘state’’, as described individuals that is identified by the in this part, for the purposes of admin- State as a rural community, and is not istering the grant. a remote area within the corporate

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boundaries of a larger city; is economi- (4) Review and approve all local miti- cally disadvantaged, by having an aver- gation plans, unless that authority has age per capita annual income of resi- been delegated to the State in accord- dents not exceeding 80 percent of na- ance with § 201.6(d); tional, per capita income, based on best (5) Conduct reviews, at least once available data; the local unemploy- every three years, of State mitigation ment rate exceeds by one percentage activities, plans, and programs to en- point or more, the most recently re- sure that mitigation commitments are ported, average yearly national unem- fulfilled, and when necessary, take ac- ployment rate; and any other factors tion, including recovery of funds or de- identified in the State Plan in which nial of future funds, if mitigation com- the community is located. mitments are not fulfilled. The Stafford Act refers to the Robert (c) State. The key responsibilities of T. Stafford Disaster Relief and Emer- the State are to coordinate all State gency Assistance Act, Public Law 93– and local activities relating to hazard 288, as amended (42 U.S.C. 5121–5206). evaluation and mitigation and to: State is any State of the United (1) Prepare and submit to FEMA a States, the District of Columbia, Puer- Standard State Mitigation Plan fol- to Rico, the Virgin Islands, Guam, lowing the criteria established in § 201.4 American Samoa, and the Common- as a condition of receiving Stafford Act wealth of the Northern Mariana Is- assistance (except emergency assist- lands. ance). State Hazard Mitigation Officer is the (2) In order to be considered for the 20 official representative of State govern- percent HMGP funding, prepare and ment who is the primary point of con- submit an Enhanced State Mitigation tact with FEMA, other Federal agen- Plan in accordance with § 201.5, which cies, and local governments in mitiga- must be reviewed and updated, if nection planning and implementation of essary, every three years from the date mitigation programs and activities re- of the approval of the previous plan. quired under the Stafford Act. (3) At a minimum, review and, if nec- Subgrantee means the government or essary, update the Standard State other legal entity to which a subgrant Mitigation Plan by November 1, 2004 is awarded and which is accountable to and every three years from the date of the grantee for the use of the funds the approval of the previous plan in provided. Subgrantees can be a State order to continue program eligibility. agency, local government, private non- (4) Make available the use of up to profit organizations, or Indian tribal the 7 percent of HMGP funding for government. Indian tribal governments planning in accordance with § 206.434. acting as a subgrantee are accountable (5) Provide technical assistance and to the State grantee. training to local governments to assist them in applying for HMGP planning § 201.3 Responsibilities. grants, and in developing local mitigation plans. (a) General. This section identifies (6) For Managing States that have the key responsibilities of FEMA, been approved under the criteria estab- States, and local/tribal governments in lished by FEMA pursuant to 42 U.S.C. carrying out section 322 of the Stafford 5170c(c), review and approve local miti- Act, 42 U.S.C. 5165. gation plans in accordance with (b) FEMA. The key responsibilities of § 201.6(d). the Regional Director are to: (d) Local governments. The key re- (1) Oversee all FEMA related pre- and sponsibilities of local governments are post-disaster hazard mitigation pro- to: grams and activities; (1) Prepare and adopt a jurisdiction- (2) Provide technical assistance and wide natural hazard mitigation plan as training to State, local, and Indian a condition of receiving project grant tribal governments regarding the miti- funds under the HMGP, in accordance gation planning process; with § 201.6. (3) Review and approve all Standard (2) At a minimum, review and, if nec- and Enhanced State Mitigation Plans; essary, update the local mitigation

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plan every five years from date of plan (1) Description of the planning process approval to continue program eligi- used to develop the plan, including how bility. it was prepared, who was involved in (e) Indian tribal governments. Indian the process, and how other agencies tribal governments will be given the participated. option of applying directly to us for (2) Risk assessments that provide the Hazard Mitigation Grant Program factual basis for activities proposed in funding, or they may choose to apply the strategy portion of the mitigation through the State. If they apply di- plan. Statewide risk assessments must rectly to us, they will assume the re- characterize and analyze natural haz- sponsibilities of the State, or grantee, ards and risks to provide a statewide and if they apply through the State, overview. This overview will allow the they will assume the responsibilities of State to compare potential losses the local government, or subgrantee. throughout the State and to determine [67 FR 8848, Feb. 26, 2002, as amended at 67 their priorities for implementing miti- FR 61515, Oct. 1, 2002] gation measures under the strategy, and to prioritize jurisdictions for re- § 201.4 Standard State Mitigation ceiving technical and financial support Plans. in developing more detailed local risk (a) Plan requirement. By November 1, and vulnerability assessments. The 2004, States must have an approved risk assessment shall include the fol- Standard State Mitigation plan meet- lowing: ing the requirements of this section in (i) An overview of the type and loca- order to receive assistance under the tion of all natural hazards that can af- Stafford Act, although assistance au- fect the State, including information thorized under disasters declared prior on previous occurrences of hazard to November 1, 2004 will continue to be events, as well as the probability of fu- made available. Until that date, exist- ture hazard events, using maps where ing, FEMA approved State Mitigation appropriate; Plans will be accepted. In any case, (ii) An overview and analysis of the emergency assistance provided under 42 State’s vulnerability to the hazards de- U.S.C 5170a, 5170b, 5173, 5174, 5177, 5179, scribed in this paragraph (c)(2), based 5180, 5182, 5183, 5184, 5192 will not be af- on estimates provided in local risk as- fected. The mitigation plan is the dem- sessments as well as the State risk as- onstration of the State’s commitment sessment. The State shall describe vul- to reduce risks from natural hazards nerability in terms of the jurisdictions and serves as a guide for State decision most threatened by the identified haz- makers as they commit resources to ards, and most vulnerable to damage reducing the effects of natural hazards. and loss associated with hazard events. States may choose to include the re- State owned critical or operated facili- quirements of the HMGP Administra- ties located in the identified hazard tive Plan in their mitigation plan, but areas shall also be addressed; must comply with the updates, amend- (iii) An overview and analysis of po- ments or revisions requirement listed tential losses to the identified vulner- under 44 CFR 206.437. able structures, based on estimates (b) Planning process. An effective provided in local risk assessments as planning process is essential in devel- well as the State risk assessment. The oping and maintaining a good plan. State shall estimate the potential dol- The mitigation planning process should lar losses to State owned or operated include coordination with other State buildings, infrastructure, and critical agencies, appropriate Federal agencies, facilities located in the identified haz- interested groups, and be integrated to ard areas. the extent possible with other ongoing (3) A Mitigation Strategy that provides State planning efforts as well as other the State’s blueprint for reducing the FEMA mitigation programs and initia- losses identified in the risk assessment. tives. This section shall include: (c) Plan content. To be effective the (i) A description of State goals to plan must include the following ele- guide the selection of activities to ments: mitigate and reduce potential losses.

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(ii) A discussion of the State’s pre- (ii) A system for monitoring imple- and post-disaster hazard management mentation of mitigation measures and policies, programs, and capabilities to project closeouts. mitigate the hazards in the area, in- (iii) A system for reviewing progress cluding: an evaluation of State laws, on achieving goals as well as activities regulations, policies, and programs re- and projects identified in the Mitiga- lated to hazard mitigation as well as to tion Strategy. development in hazard-prone areas; a (6) A Plan Adoption Process. The plan discussion of State funding capabilities must be formally adopted by the State for hazard mitigation projects; and a prior to submittal to us for final review general description and analysis of the and approval. effectiveness of local mitigation poli- (7) Assurances. The plan must include cies, programs, and capabilities. assurances that the State will comply (iii) An identification, evaluation, with all applicable Federal statutes and prioritization of cost-effective, en- and regulations in effect with respect vironmentally sound, and technically to the periods for which it receives feasible mitigation actions and activi- grant funding, in compliance with 44 ties the State is considering and an ex- CFR 13.11(c). The State will amend its planation of how each activity contrib- plan whenever necessary to reflect utes to the overall mitigation strategy. changes in State or Federal laws and This section should be linked to local statutes as required in 44 CFR 13.11(d). plans, where specific local actions and (d) Review and updates. Plan must be projects are identified. reviewed and revised to reflect changes (iv) Identification of current and po- in development, progress in statewide tential sources of Federal, State, local, mitigation efforts, and changes in pri- or private funding to implement miti- orities and resubmitted for approval to gation activities. the appropriate Regional Director (4) A section on the Coordination of every three years. The Regional review Local Mitigation Planning that includes will be completed within 45 days after the following: receipt from the State, whenever pos- (i) A description of the State process sible. We also encourage a State to re- to support, through funding and tech- view its plan in the post-disaster time- nical assistance, the development of frame to reflect changing priorities, local mitigation plans. but it is not required. (ii) A description of the State process [67 FR 8848, Feb. 26, 2002, as amended at 67 and timeframe by which the local plans FR 61515, Oct. 1, 2002] will be reviewed, coordinated, and linked to the State Mitigation Plan. § 201.5 Enhanced State Mitigation (iii) Criteria for prioritizing commu- Plans. nities and local jurisdictions that (a) A State with a FEMA approved would receive planning and project Enhanced State Mitigation Plan at the grants under available funding pro- time of a disaster declaration is eligi- grams, which should include consider- ble to receive increased funds under the ation for communities with the highest HMGP, based on twenty percent of the risks, repetitive loss properties, and total estimated eligible Stafford Act most intense development pressures. disaster assistance. The Enhanced Further, that for non-planning grants, State Mitigation Plan must dem- a principal criterion for prioritizing onstrate that a State has developed a grants shall be the extent to which comprehensive mitigation program, benefits are maximized according to a that the State effectively uses avail- cost benefit review of proposed projects able mitigation funding, and that it is and their associated costs. capable of managing the increased (5) A Plan Maintenance Process that funding. In order for the State to be el- includes: igible for the 20 percent HMGP funding, (i) An established method and sched- FEMA must have approved the plan ule for monitoring, evaluating, and up- within three years prior to the disaster dating the plan. declaration.

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(b) Enhanced State Mitigation Plans (4) Demonstration that the State is must include all elements of the Stand- committed to a comprehensive state ard State Mitigation Plan identified in mitigation program, which might in- § 201.4, as well as document the fol- clude any of the following: lowing: (i) A commitment to support local (1) Demonstration that the plan is in- mitigation planning by providing tegrated to the extent practicable with workshops and training, State plan- other State and/or regional planning ning grants, or coordinated capability initiatives (comprehensive, growth development of local officials, includ- management, economic development, ing Emergency Management and capital improvement, land develop- Floodplain Management certifications. ment, and/or emergency management (ii) A statewide program of hazard plans) and FEMA mitigation programs mitigation through the development of and initiatives that provide guidance legislative initiatives, mitigation to State and regional agencies. councils, formation of public/private (2) Documentation of the State’s partnerships, and/or other executive project implementation capability, actions that promote hazard mitiga- identifying and demonstrating the tion. ability to implement the plan, includ- (iii) The State provides a portion of ing: the non-Federal match for HMGP and/ (i) Established eligibility criteria for or other mitigation projects. multi-hazard mitigation measures. (iv) To the extent allowed by State (ii) A system to determine the cost law, the State requires or encourages effectiveness of mitigation measures, local governments to use a current consistent with OMB Circular A–94, version of a nationally applicable Guidelines and Discount Rates for Ben- model building code or standard that efit-Cost Analysis of Federal Programs, addresses natural hazards as a basis for and to rank the measures according to design and construction of State spon- the State’s eligibility criteria. sored mitigation projects. (iii) Demonstration that the State (v) A comprehensive, multi-year plan has the capability to effectively man- to mitigate the risks posed to existing age the HMGP as well as other mitiga- buildings that have been identified as tion grant programs, including a record necessary for post-disaster response of the following: and recovery operations. (A) Meeting HMGP and other mitiga- (vi) A comprehensive description of tion grant application timeframes and how the State integrates mitigation submitting complete, technically fea- into its post-disaster recovery oper- sible, and eligible project applications ations. with appropriate supporting docu- (c) Review and updates. (1) A State mentation; must review and revise its plan to re- (B) Preparing and submitting accu- flect changes in development, progress rate environmental reviews and ben- in statewide mitigation efforts, and efit-cost analyses; changes in priorities, and resubmit it (C) Submitting complete and accu- for approval to the appropriate Re- rate quarterly progress and financial gional Director every three years. The reports on time; and Regional review will be completed (D) Completing HMGP and other within 45 days after receipt from the mitigation grant projects within estab- State, whenever possible. lished performance periods, including (2) In order for a State to be eligible financial reconciliation. for the 20 percent HMGP funding, the (iv) A system and strategy by which Enhanced State Mitigation plan must the State will conduct an assessment be approved by FEMA within the three of the completed mitigation actions years prior to the current major dis- and include a record of the effective- aster declaration. ness (actual cost avoidance) of each mitigation action. § 201.6 Local Mitigation Plans. (3) Demonstration that the State ef- The local mitigation plan is the rep- fectively uses existing mitigation pro- resentation of the jurisdiction’s com- grams to achieve its mitigation goals. mitment to reduce risks from natural

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hazards, serving as a guide for decision (2) An opportunity for neighboring makers as they commit resources to communities, local and regional agen- reducing the effects of natural hazards. cies involved in hazard mitigation ac- Local plans will also serve as the basis tivities, and agencies that have the au- for the State to provide technical as- thority to regulate development, as sistance and to prioritize project fund- well as businesses, academia and other ing. private and non-profit interests to be (a) Plan requirements. (1) For disasters involved in the planning process; and declared after November 1, 2004, a local (3) Review and incorporation, if ap- government must have a mitigation propriate, of existing plans, studies, re- plan approved pursuant to this section ports, and technical information. in order to receive HMGP project (c) Plan content. The plan shall in- grants. Until November 1, 2004, local clude the following: mitigation plans may be developed (1) Documentation of the planning concurrent with the implementation of process used to develop the plan, includ- the HMGP project grant. ing how it was prepared, who was in- (2) By November 1, 2003, local govern- volved in the process, and how the pub- ments must have a mitigation plan ap- lic was involved. proved pursuant to this section in (2) A risk assessment that provides the order to receive a project grant factual basis for activities proposed in through the Pre-Disaster Mitigation the strategy to reduce losses from iden- (PDM) program, authorized under § 203 tified hazards. Local risk assessments of the Robert T. Stafford Disaster Re- lief and Emergency Assistance Act, 42 must provide sufficient information to U.S.C. 5133. PDM planning grants will enable the jurisdiction to identify and continue to be made available to all prioritize appropriate mitigation ac- local governments after this time to tions to reduce losses from identified enable them to meet the requirements hazards. The risk assessment shall in- of this section. clude: (3) Regional Directors may grant an (i) A description of the type, loca- exception to the plan requirement in tion, and extent of all natural hazards extraordinary circumstances, such as that can affect the jurisdiction. The in a small and impoverished commu- plan shall include information on pre- nity, when justification is provided. In vious occurrences of hazard events and these cases, a plan will be completed on the probability of future hazard within 12 months of the award of the events. project grant. If a plan is not provided (ii) A description of the jurisdiction’s within this timeframe, the project vulnerability to the hazards described grant will be terminated, and any costs in paragraph (c)(2)(i) of this section. incurred after notice of grant’s termi- This description shall include an over- nation will not be reimbursed by all summary of each hazard and its im- FEMA. pact on the community. The plan (4) Multi-jurisdictional plans (e.g. wa- should describe vulnerability in terms tershed plans) may be accepted, as ap- of: propriate, as long as each jurisdiction (A) The types and numbers of exist- has participated in the process and has ing and future buildings, infrastruc- officially adopted the plan. State-wide ture, and critical facilities located in plans will not be accepted as multi-ju- the identified hazard areas; risdictional plans. (B) An estimate of the potential dol- (b) Planning process. An open public lar losses to vulnerable structures involvement process is essential to the identified in paragraph (c)(2)(i)(A) of development of an effective plan. In this section and a description of the order to develop a more comprehensive methodology used to prepare the esti- approach to reducing the effects of nat- mate; ural disasters, the planning process (C) Providing a general description of shall include: land uses and development trends with- (1) An opportunity for the public to in the community so that mitigation comment on the plan during the draft- options can be considered in future ing stage and prior to plan approval; land use decisions.

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(iii) For multi-jurisdictional plans, plans, each jurisdiction requesting ap- the risk assessment section must as- proval of the plan must document that sess each jurisdiction’s risks where it has been formally adopted. they vary from the risks facing the en- (d) Plan review. (1) Plans must be sub- tire planning area. mitted to the State Hazard Mitigation (3) A mitigation strategy that provides Officer for initial review and coordina- the jurisdiction’s blueprint for reduction. The State will then send the plan ing the potential losses identified in to the appropriate FEMA Regional Of- the risk assessment, based on existing fice for formal review and approval. authorities, policies, programs and re- (2) The Regional review will be com- sources, and its ability to expand on pleted within 45 days after receipt from and improve these existing tools. This the State, whenever possible. section shall include: (3) Plans must be reviewed, revised if (i) A description of mitigation goals appropriate, and resubmitted for ap- to reduce or avoid long-term proval within five years in order to vulnerabilities to the identified haz- continue to be eligible for HMGP ards. project grant funding. (ii) A section that identifies and ana- (4) Managing States that have been lyzes a comprehensive range of specific approved under the criteria established mitigation actions and projects being by FEMA pursuant to 42 U.S.C. 5170c(c) considered to reduce the effects of each will be delegated approval authority hazard, with particular emphasis on for local mitigation plans, and the renew and existing buildings and infra- view will be based on the criteria in structure. this part. Managing States will review (iii) An action plan describing how the plans within 45 days of receipt of the actions identified in paragraph the plans, whenever possible, and pro- (c)(2)(ii) of this section will be vide a copy of the approved plans to prioritized, implemented, and adminis- the Regional Office. tered by the local jurisdiction. Prioritization shall include a special [67 FR 8848, Feb. 26, 2002, as amended at 67 emphasis on the extent to which bene- FR 61515, Oct. 1, 2002] fits are maximized according to a cost benefit review of the proposed projects PARTS 202–203 [RESERVED] and their associated costs. (iv) For multi-jurisdictional plans, there must be identifiable action items PART 204—FIRE MANAGEMENT specific to the jurisdiction requesting ASSISTANCE GRANT PROGRAM FEMA approval or credit of the plan. (4) A plan maintenance process that in- Subpart A—General cludes: Sec. (i) A section describing the method 204.1 Purpose. and schedule of monitoring, evalu- 204.2 Scope. ating, and updating the mitigation 204.3 Definitions used throughout this part. plan within a five-year cycle. 204.4–204.20 [Reserved] (ii) A process by which local governments incorporate the requirements of Subpart B—Declaration Process the mitigation plan into other planning mechanisms such as comprehen- 204.21 Fire management assistance declara- sive or capital improvement plans, tion criteria. when appropriate. 204.22 Submitting a request for a fire man- (iii) Discussion on how the commu- agement assistance declaration. nity will continue public participation 204.23 Processing a request for a fire management assistance declaration. in the plan maintenance process. 204.24 Determination on request for a fire (5) Documentation that the plan has management assistance declaration. been formally adopted by the gov- 204.25 FEMA-State agreement for fire man- erning body of the jurisdiction request- agement assistance grant program. ing approval of the plan (e.g., City 204.26 Appeal of fire management assistance Council, County Commissioner, Tribal declaration denial. Council). For multi-jurisdictional 204.27–204.40 [Reserved]

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Subpart C—Eligibility § 204.3 Definitions used throughout this part. 204.41 Applicant eligibility. 204.42 Eligible costs. Applicant. A State or Indian tribal 204.43 Ineligible costs. government submitting an application 204.44–204.50 [Reserved] to us for a fire management assistance grant, or a State, local, or Indian tribal Subpart D—Application Procedures government submitting an application to the Grantee for a subgrant under an 204.51 Application and approval procedures approved fire management assistance for a fire management assistance grant. grant. 204.52 Application and approval procedures Associate Director. The Associate Di- for a subgrant under a fire management assistance grant. rector or Assistant Director, as appli- 204.53 Certifying costs and payments. cable, of the Readiness, Response and 204.54 Appeals. Recovery Directorate of FEMA, or his/ 204.55–204.60 [Reserved] her designated representative. Declared fire. An uncontrolled fire or Subpart E—Grant Administration fire complex, threatening such destruction as would constitute a major dis- 204.61 Cost share. aster, which the Associate Director has 204.62 Duplication and recovery of assist- approved in response to a State’s re- ance. 204.63 Allowable costs. quest for a fire management assistance 204.64 Reporting and audit requirements. declaration and in accordance with the criteria listed in § 204.21. AUTHORITY: Robert T. Stafford Disaster Demobilization. The process and pro- Relief and Emergency Assistance Act, 42 cedures for deactivating, disassem- U.S.C. 5121–5206; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; bling, and transporting back to their E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. point of origin all resources that had 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 been provided to respond to and sup- Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 port a declared fire. CFR, 1989 Comp., p. 214. FEMA Form 90–91. See Project Work- sheet. SOURCE: 66 FR 57347, Nov. 14, 2001, unless otherwise noted. Fire complex. Two or more individual fires located in the same general area, which are assigned to a single Incident Subpart A—General Commander. § 204.1 Purpose. Governor’s Authorized Representative (GAR). The person empowered by the This part provides information on Governor to execute, on behalf of the the procedures for the declaration and State, all necessary documents for fire grants management processes for the management assistance, including the Fire Management Assistance Grant request for a fire management assist- Program in accordance with the provi- ance declaration. sions of section 420 of the Stafford Act. Grant. An award of financial assist- This part also details applicant eligi- ance, including cooperative agree- bility and the eligibility of costs to be ments, by FEMA to an eligible Grant- considered under the program. We ee. The grant award will be based on (FEMA) will actively work with State the projected amount of total eligible and Tribal emergency managers and costs for which a State submits an ap- foresters on the efficient delivery of plication and that FEMA approves re- fire management assistance as directed lated to a declared fire. by this part. Grantee. The Grantee is the government to which a grant is awarded § 204.2 Scope. which is accountable for the use of the This part is intended for those indi- funds provided. The Grantee is the en- viduals responsible for requesting dec- tire legal entity even if only a par- larations and administering grants ticular component of the entity is des- under the Fire Management Assistance ignated in the grant award document. Grant Program, as well as those apply- Generally, the State, as designated in ing for assistance under the program. the FEMA-State Agreement for the

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Fire Management Assistance Grant ganizations. For further information, Program, is the Grantee. However, see subparts D, E, and F of part 206. after a declaration, an Indian tribal Local government. A local government government may choose to be a Grant- is any county, municipality, city, ee, or it may act as a subgrantee under town, township, public authority, the State. An Indian tribal government school district, special district, intra- acting as Grantee will assume the restate district, council of governments sponsibilities of a ‘‘state’’, as described (regardless of whether the council of in this Part, for the purpose of admin- governments is incorporated as a non- istering the grant. profit corporation under State law), re- Hazard mitigation plan. A plan to de- gional or interstate government entity, velop actions the State, local, or tribal or agency or instrumentality of a local government will take to reduce the government; any Indian tribal govern- risk to people and property from all ment or authorized tribal organization, hazards. The intent of hazard mitiga- or Alaska Native village or organization planning under the Fire Manage- tion; and any rural community, unin- ment Assistance Grant Program is to corporated town or village, or other identify wildfire hazards and cost-effec- public entity, for which an application tive mitigation alternatives that for assistance is made by a State or po- produce long-term benefits. We address litical subdivision of a State. mitigation of fire hazards as part of the Mitigation, management, and control. State’s comprehensive Hazard Mitiga- Those activities undertaken, generally tion Plan, described in 44 CFR part 206, during the incident period of a declared subpart M. fire, to minimize immediate adverse ef- Incident commander. The ranking offi- fects and to manage and control the cial responsible for overseeing the fire. Eligible activities may include as- management of fire operations, plan- sociated emergency work and pre-posi- ning, logistics, and finances of the field tioning directly related to the declared response. fire. Incident period. The time interval Mobilization. The process and proce- during which the declared fire occurs. dures used for activating, assembling, The Regional Director, in consultation and transporting all resources that the with the Governor’s Authorized Rep- Grantee requested to respond to sup- resentative and the Principal Advisor, port a declared fire. will establish the incident period. Gen- Performance period. The time interval erally, costs must be incurred during designated in block 13 on the Applica- the incident period to be considered el- tion for Federal Assistance (Standard igible. Form 424) for the Grantee and all sub- Indian tribal government. An Indian grantees to submit eligible costs and tribal government is any Federally rec- have those costs processed, obligated, ognized governing body of an Indian or and closed out by FEMA. Alaska Native tribe, band, nation, Pre-positioning. Moving existing fire pueblo, village, or community that the prevention or suppression resources Secretary of Interior acknowledges to from an area of lower fire danger to exist as an Indian tribe under the Fed- one of higher fire danger in anticipa- erally Recognized Tribe List Act of tion of an increase in fire activity like- 1994, 25 U.S.C. 479a. This does not in- ly to constitute the threat of a major clude Alaska Native corporations, the disaster. ownership of which is vested in private Principal advisor. An individual ap- individuals. pointed by the Forest Service, United Individual assistance. Supplementary States Department of Agriculture, or Federal assistance provided under the Bureau of Land Management, Depart- Stafford Act to individuals and fami- ment of the Interior, who is responsible lies adversely affected by a major dis- for providing FEMA with a technical aster or an emergency. Such assistance assessment of the fire or fire complex may be provided directly by the Fed- for which a State is requesting a fire eral Government or through State or management assistance declaration. local governments or disaster relief or- The Principal Advisor also frequently

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participates with FEMA on other complex based on consideration of the wildland fire initiatives. following specific criteria: Project worksheet. FEMA Form 90–91, (1) Threat to lives and improved which identifies actual costs incurred property, including threats to critical by eligible applicants as a result of the facilities/infrastructure, and critical eligible firefighting activities. watershed areas; Public assistance. Supplementary Fed- (2) Availability of State and local eral assistance provided under the firefighting resources; Stafford Act to State and local govern- (3) High fire danger conditions, as in- ments or certain private, nonprofit or- dicated by nationally accepted indices ganizations for eligible emergency such as the National Fire Danger Rat- measures and repair, restoration, and ings System; replacement of damaged facilities. For (4) Potential major economic impact. further information, see Subparts G and H of Part 206. § 204.22 Submitting a request for a fire Regional Director. A director of a re- management assistance declaration. gional office of FEMA, or his/her des- The Governor of a State, or the Gov- ignated representative. ernor’s Authorized Representative Request for Federal Assistance. See (GAR), may submit a request for a fire Standard Form (SF) 424. management assistance declaration. Standard Form (SF) 424. The SF 424 is The request must be submitted while the Request for Federal Assistance. the fire is burning uncontrolled and This is the form the State submits to threatens such destruction as would apply for a grant under a fire manage- constitute a major disaster. The re- ment assistance declaration. quest must be submitted to the Re- Subgrant. An award of financial as- gional Director and should address the sistance under a grant by a Grantee to relevant criteria listed in § 204.21, with an eligible subgrantee. supporting documentation that con- Subgrantee. An applicant that is tains factual data and professional es- awarded a subgrant and is accountable timates on the fire or fire complex. To to the Grantee for the use of grant ensure that we can process a State’s re- funding provided. quest for a fire management assistance Threat of a major disaster. The poten- declaration as expeditiously as pos- tial impact of the fire or fire complex sible, the State should transmit the re- is of a severity and magnitude that quest by telephone, promptly followed would result in a presidential major by written documentation (FEMA disaster declaration for the Public As- Form 90–58). sistance Program, the Individual As- sistance Program, or both. § 204.23 Processing a request for a fire Uncontrolled fire. Any fire not safely management assistance declaration. confined to predetermined control lines (a) In processing a State’s request for as established by firefighting re- a fire management assistance declara- sources. tion, the Regional Director, in coordi- We, our, us mean FEMA. nation with the Principal Advisor, will verify the information submitted in §§ 204.4–204.20 [Reserved] the State’s request. (b) The Regional Director will then Subpart B—Declaration Process forward the State’s request to the As- sociate Director for determination § 204.21 Fire management assistance along with the Principal Advisor’s As- declaration criteria. sessment and the Regional Summary. (a) Determinations. We will approve (1) Principal Advisor’s assessment. The declarations for fire management as- Principal Advisor, at the request of the sistance when the Associate Director Regional Director, is responsible for determines that a fire or fire complex providing us with a technical assess- threatens such destruction as would ment of the fire or fire complex for constitute a major disaster. which the State is requesting a fire (b) Evaluation criteria. We will evalu- management assistance declaration. ate the threat posed by a fire or fire The Principal Advisor may consult

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with State agencies, usually emer- (b) The Agreement states the under- gency management or forestry, as well standings, commitments, and condi- as the Incident Commander, in order to tions under which we will provide Fed- provide us with an accurate assess- eral assistance, including the cost ment. share provision and articles of agree- (2) Regional summary and recommenda- ment necessary for the administration tion. Upon obtaining all necessary in- of grants approved under fire manage- formation on the fire or fire complex ment assistance declarations. The from the State and the Principal Advi- Agreement must also identify the sor, the Regional Director will provide State legislative authority for fire- the Associate Director with a summary fighting, as well as the State’s compli- and recommendation to accompany the ance with the laws, regulations, and State’s request. The summary and rec- other provisions applicable to the Fire ommendation should include a discussion of the threat of a major disaster. Management Assistance Grant Pro- gram. § 204.24 Determination on request for (c) For each subsequently declared a fire management assistance dec- fire within the calendar year, the par- laration. ties must add a properly executed The Associate Director will review amendment, which defines the incident all information submitted in the period and contains the official dec- State’s request along with the Prin- laration number. Other amendments cipal Advisor’s assessment and Re- modifying the standing Agreement gional summary and render a deter- may be added throughout the year to mination. The determination will be reflect changes in the program or sig- based on the conditions of the fire or natory parties. fire complex existing at the time of the State’s request. When possible, the As- § 204.26 Appeal of fire management associate Director will evaluate the resistance declaration denial. quest and make a determination within (a) Submitting an appeal. When we several hours. Once the Associate Di- deny a State’s request for a fire man- rector makes a determination, the As- sociate Director will promptly notify agement assistance declaration, the the Regional Director. The Regional Governor or GAR may appeal the deci- Director will then inform the State of sion in writing within 30 days after the the determination. date of the letter denying the request. The State should submit this one-time § 204.25 FEMA–State agreement for request for reconsideration in writing, fire management assistance grant with appropriate additional informa- program. tion, to the Associate Director through (a) After a State’s request for a fire the Regional Director. The Associate management assistance declaration Director will notify the State of his/her has been approved, the Governor and determination on the appeal, in writ- Regional Director will enter into a ing, within 90 days of receipt of the ap- standing FEMA–State Agreement (the peal or the receipt of additional re- Agreement) for the declared fire and quested information. for future declared fires in that cal- (b) Requesting a time-extension. The endar year. The State must have a Associate Director may extend the 30- signed and up-to-date FEMA–State day period provided that the Governor Agreement before receiving Federal or the GAR submits a written request funding for fire management assistance grants. FEMA will provide no funding for such an extension within the 30-day absent a signed and up-to-date Agree- period. The Associate Director will ment. An Indian tribal government evaluate the need for an extension serving as Grantee, must sign a FEMA– based on the reasons cited in the re- Tribal Agreement, modeled upon the quest and either approve or deny the FEMA–State Agreement. request for an extension.

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§§ 204.27–204.40 [Reserved] equipment used in eligible firefighting activities to the extent any of these Subpart C—Eligibility costs are not included in applicable equipment rates. § 204.41 Applicant eligibility. (4) Use of U.S. Government-owned (a) The following entities are eligible equipment based on reasonable costs as to apply through a State Grantee for a billed by the Federal agency and paid subgrant under an approved fire man- by the State. (Only direct costs for use agement assistance grant: of Federal Excess Personal Property (1) State agencies; (FEPP) vehicles and equipment on loan (2) Local governments; and to State Forestry and local cooperators (3) Indian tribal governments. may be eligible.) (b) Entities that are not eligible to (5) Repair of equipment damaged in apply for a subgrant as identified in firefighting activities to the extent not (a), such as privately owned entities covered by reasonable insurance. We and volunteer firefighting organiza- will use the lowest applicable equip- tions, may be reimbursed through a ment rates, or other rates that we de- contract or compact with an eligible termine, to calculate the eligible cost applicant for eligible costs associated of repairs. with the fire or fire complex. (6) Replacement of equipment lost or (c) Eligibility is contingent upon a destroyed in firefighting activities, to finding that the Incident Commander the extent not covered by reasonable or comparable State official requested insurance, will be replaced with com- the applying entity’s resources. parable equipment. (d) The activities performed must be (c) Labor costs. Eligible costs include: the legal responsibility of the applying (1) Overtime for permanent or reas- entity, required as the result of the designed State and local employees. clared fire, and located within the des- (2) Regular time and overtime for ignated area. temporary and contract employees hired to perform fire-related activities. § 204.42 Eligible costs. (d) Travel and per diem costs. Eligible (a) General. (1) All eligible work and costs include: related costs must be associated with (1) Travel and per diem of employees the incident period of a declared fire. who are providing services directly as- (2) Before obligating Federal funds sociated with eligible fire-related ac- the Regional Director must review and tivities may be eligible. approve the initial grant application, (2) Provision of field camps and along with Project Worksheets sub- meals when made available in place of mitted with the application and any per diem; subsequent amendments to the applica- (e) Pre-positioning costs. (1) The actual tion. costs of pre-positioning Federal, out- (3) Grantees will award Federal funds of-State (including compact), and to subgrantees under State law and international resources for a limited procedure and complying with 44 CFR period may be eligible when those re- part 13. sources are used in response to a de- (b) Equipment and supplies. Eligible clared fire. costs include: (2) The Regional Director must ap- (1) Personal comfort and safety items prove all pre-positioning costs. normally provided by the State under (i) Upon approval of a State’s request field conditions for firefighter health for a fire management assistance dec- and safety, including: laration by the Associate Director, the (2) Firefighting supplies, tools, mate- State should immediately notify the rials, expended or lost, to the extent Regional Director of its intention to not covered by reasonable insurance, seek funding for pre-positioning re- will be replaced with comparable sources. items. (ii) The State must document the (3) Operation and maintenance costs number of pre-positioned resources to of publicly owned, contracted, rented, be funded and their respective loca- or volunteer firefighting department tions throughout the State, estimate

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the cost of the pre-positioned resources close of the incident period for the de- that were used on the declared fire and clared fire. the amount of time the resources were (h) Mobilization and demobilization. pre-positioned, and provide a detailed Costs for mobilization to, and demobi- explanation of the need to fund the pre- lization from, a declared fire may be el- positioned resources . igible for reimbursement. Demobiliza- (iii) The State will base the detailed tion may be claimed at a delayed date explanation on recognized scientific in- if deployment involved one or more de- dicators, that include, but are not lim- clared fires. If resources are being used ited to, drought indices, short-term on more than one declared fire, mobili- weather forecasts, the current number zation and demobilization costs must of fires burning in the State, and the be claimed against the first declared availability of in-State firefighting re- fire. sources. The State may also include (i) Fires on co-mingled Federal/State other quantitative indicators with lands. Reasonable costs for the mitiga- which to measure the increased risk of tion, management, and control of a de- the threat of a major disaster. clared fire burning on co-mingled Fed- (iv) Based on the information con- eral and State land may be eligible in tained in the State’s notification, the cases where the State has a responsi- Regional Director will determine the bility for suppression activities under number of days of pre-positioning to be an agreement to perform such action approved for Federal funding, up to a on a non-reimbursable basis. (This pro- maximum of 21 days before the fire vision is an exception to normal FEMA declaration. policy under the Stafford Act and is in- (3) Upon rendering his/her determina- tended to accommodate only those rare tion on pre-positioning costs, the Re- instances that involve State fire- gional Director will notify the Asso- fighting on a Stafford Act section 420 ciate Director of his/her determination. fire incident involving co-mingled Fed- (f) Emergency work. We may authorize eral/State and privately-owned forest the use of section 403 of the Stafford or grassland.) Act, Essential Assistance, under an approved fire management assistance § 204.43 Ineligible costs. grant when directly related to the mitigation, management, and control Costs not directly associated with of the declared fire. Essential assist- the incident period are ineligible. Ineli- ance activities that may be eligible in- gible costs include the following: clude, but are not limited to, police (a) Costs incurred in the mitigation, barricading and traffic control, ex- management, and control of undeclared traordinary emergency operations cen- fires; ter expenses, evacuations and shel- (b) Costs related to planning, pre-sup- tering, search and rescue, arson inves- pression (i.e., cutting fire-breaks with- tigation teams, public information, and out the presence of an imminent the limited removal of trees that pose threat, training, road widening, and a threat to the general public. other similar activities), and recovery (g) Temporary repair of damage caused (i.e., land rehabilitation activities, by firefighting activities. Temporary re- such as seeding, planting operations, pair of damage caused by eligible fire- and erosion control, or the salvage of fighting activities listed in this sub- timber and other materials, and res- part involves short-term actions to re- toration of facilities damaged by fire); pair damage directly caused by the (c) Costs for the straight or regular firefighting effort or activities. This time salaries and benefits of a sub- includes minimal repairs to bulldozer grantee’s permanently employed or re- lines, camps, and staging areas to ad- assigned personnel; dress safety concerns; as well as mini- (d) Costs for mitigation, manage- mal repairs to facilities damaged by ment, and control of a declared fire on the firefighting activities such as co-mingled Federal land when such fences, buildings, bridges, roads, etc. costs are reimbursable to the State by All temporary repair work must be a Federal agency under another statute completed within thirty days of the (See 44 CFR part 51);

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(e) Fires fought on Federal land are (3) The cumulative fire cost threshold generally the responsibility of the Fed- for a State is the greater of the fol- eral Agency that owns or manages the lowing: land. Costs incurred while fighting (i) $500,000; or fires on federally owned land are not (ii) Three times the five percent × eligible under the Fire Management $1.07 × the State population as de- Assistance Grant Program except as scribed in § 204.51(b)(2)(ii). noted in § 204.42(i). (4) States must document the total eligible costs for a declared fire on §§ 204.44–204.50 [Reserved] Project Worksheets, which they must submit with the grant application. Subpart D—Application (5) We will not consider the costs of Procedures pre-positioning resources for the purposes of determining whether the grant § 204.51 Application and approval pro- application meets the fire cost thresh- cedures for a fire management assistance grant. old. (6) When the State’s total eligible (a) Preparing and submitting an appli- costs associated with the fire manage- (1) After the approval of a fire cation. ment assistance declaration meet or management assistance declaration, exceed the fire cost threshold eligible the State may submit an application costs will be cost shared in accordance package for a grant to the Regional Di- with § 204.61. rector. The application package must include the SF 424 (Request for Federal (c) Approval of the State’s grant appli- Assistance) and FEMA Form 20–16a cation. The Regional Director has 45 (Summary of Assurances—Non-con- days from receipt the State’s grant ap- struction Programs), as well as sup- plication or an amendment to the porting documentation for the budget. State’s grant application, including at- (2) The State should submit its grant tached supporting Project Work- application within 9 months of the dec- sheet(s), to review and approve or deny laration. Upon receipt of the written the grant application or amendment; request from the State, the Regional or to notify the Grantee of a delay in Director may grant an extension for up processing funding. to 3 months. The State’s request must (d) Obligation of the grant. Before we include a justification for the exten- approve the State’s grant application, sion. the State must have an up-to-date (b) Fire cost threshold. (1) We will ap- State Administrative Plan and a Haz- prove the initial grant award to the ard Mitigation Plan that has been re- State when we determine that the viewed and approved by the Regional State’s application demonstrates ei- Director. Once these plans are ap- ther of the following: proved by the Regional Director, the (i) Total eligible costs for the de- State’s grant application may be ap- clared fire meet or exceed the indi- proved and we may begin to obligate vidual fire cost threshold; or the Federal share of funding for sub- (ii) Total costs of all declared and grants to the Grantee. non-declared fires for which a State (1) State administrative plan. has assumed responsibility in a given (i) The State must develop an Admin- calendar year meet the cumulative fire istrative Plan (or have a current Ad- cost threshold. ministrative Plan on file with FEMA) (2) The individual fire cost threshold that describes the procedures for the for a State is the greater of the fol- administration of the Fire Manage- lowing: ment Assistance Grant Program. The (i) $100,000; or Plan will include, at a minimum, the (ii) Five percent × $1.07 × the State items listed below: population, adjusted annually for infla- (A) The designation of the State tion using the Consumer Price Index agency or agencies which will have re- for All Urban Consumers published an- sponsibility for program administra- nually by the Department of Labor. tion.

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(B) The identification of staffing ance to the Grantee in accordance with functions for the Fire Management As- State procedures and within timelines sistance Program, the sources of staff set by the Grantee, but no longer than to fill these functions, and the manage- 30 days after the close of the incident ment and oversight responsibilities of period. each. (2) The Grantee will review and for- (C) The procedures for: ward the Request to the Regional Di- (1) Notifying potential applicants of rector for final review and determina- the availability of the program; tion. The Grantee may also forward a (2) Assisting FEMA in determining recommendation for approval of the applicant eligibility; Request to the Regional Director when (3) Submitting and reviewing appropriate. subgrant applications; (3) The Regional Director will ap- (4) Processing payment for subgrants; prove or deny the request based on the (5) Submitting, reviewing, and ac- eligibility requirements outlined in cepting subgrant performance and fi- § 204.41. nancial reports; (4) The Regional Director will notify (6) Monitoring, close-out, and audit the Grantee of his/her determination; and reconciliation of subgrants; the Grantee will inform the applicant. (7) Recovering funds for disallowed (b) Preparing a Project Worksheet. (1) costs; Once the Regional Director approves (8) Processing appeal requests and re- an applicant’s Request for Fire Man- quests for time extensions; and agement Assistance, the Regional Di- (9) Providing technical assistance to rector’s staff may begin to work with applicants and subgrant recipients, in- the Grantee and local staff to prepare cluding briefings for potential appli- Project Worksheets (FEMA Form 90– cants and materials on the application 91). procedures, program eligibility guid- (2) The Regional Director may re- ance and program deadlines. quest the Principal Advisor to assist in (ii) The Grantee may request the Re- the preparation of Project Worksheets. gional Director to provide technical as- (3) The State will be the primary con- sistance in the preparation of the State tact for transactions with and on be- Administrative Plan. half of the applicant. (2) Hazard Mitigation Plan. As a re- (c) Submitting a Project Worksheet. (1) quirement of receiving funding under a Applicants should submit all Project fire management assistance grant a Worksheets through the Grantee for State or tribal organization, acting as approval and transmittal to the Re- Grantee, must: gional Director as amendments to the (i) Develop a Hazard Mitigation Plan State’s application. in accordance with 44 CFR part 206, (2) The Grantee will determine the subpart M, that addresses wildfire risks deadline for an applicant to submit and mitigation measures; or completed Project Worksheets, but the (ii) Incorporate wildfire mitigation deadline must be no later than six into the existing Hazard Mitigation months from close of the incident pe- Plan developed and approved under 44 riod. CFR part 206, subpart M that also ad- (3) At the request of the Grantee, the dresses wildfire risk and contains a Regional Director may grant an exten- wildfire mitigation strategy and re- sion of up to three months. The Grant- lated mitigation initiatives. ee must include a justification in its request for an extension. § 204.52 Application and approval pro- (4) Project Worksheets will not be ac- cedures for a subgrant under a fire cepted after the deadline and extension management assistance grant. specified in paragraphs (c)(2) and (c)(3) (a) Request for Fire Management Assist- of this section has expired. ance. (1) State, local, and tribal govern- (5) $1,000 Project Worksheet minimum. ments interested in applying for sub- When the costs reported are less than grants under an approved fire manage- $1,000, that work is not eligible and we ment assistance grant must submit a will not approve that Project Work- Request for Fire Management Assist- sheet.

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§ 204.53 Certifying costs and pay- (2) The grantee will review and for- ments. ward appeals from an applicant or sub- (a) By submitting applicants’ Project grantee, with a written recommenda- Worksheets to us, the Grantee is certi- tion, to the Regional Director within 60 fying that all costs reported on appli- days of receipt. cant Project Worksheets were incurred (3) Within 90 days following receipt of for work that was performed in compli- an appeal, the Regional Director (for ance with FEMA laws, regulations, pol- first appeals) or Associate Director (for icy and guidance applicable to the Fire second appeals) will notify the grantee Management Assistance Grant Pro- in writing of the disposition of the ap- gram, as well as with the terms and peal or of the need for additional infor- conditions outlined for the administra- mation. A request by the Regional Di- tion of the grant in the FEMA-State rector or Associate Director for addi- Agreement for the Fire Management tional information will include a date Assistance Grant Program. by which the information must be pro- (b) Advancement/Reimbursement for vided. Within 90 days following the re- State grant costs will be processed as ceipt of the requested additional infor- follows: mation or following expiration of the (1) Through the U.S. Department of period for providing the information, Health and Human Services the Regional Director or Associate Di- SMARTLINK system; and rector will notify the grantee in writ- (2) In compliance with 44 CFR 13.21 ing of the disposition of the appeal. If and U. S. Treasury 31 CFR part 205, the decision is to grant the appeal, the Cash Management Improvement Act. Regional Director will take appropriate implementing action. § 204.54 Appeals. (d) Technical advice. In appeals in- An eligible applicant, subgrantee, or volving highly technical issues, the Re- grantee may appeal any determination gional Director or Associate Director we make related to an application for may, at his or her discretion, submit the provision of Federal assistance ac- the appeal to an independent scientific cording to the procedures below. or technical person or group having ex- (a) Format and content. The applicant pertise in the subject matter of the ap- or subgrantee will make the appeal in peal for advice or recommendation. writing through the grantee to the Re- The period for this technical review gional Director. The grantee will re- may be in addition to other allotted view and evaluate all subgrantee ap- time periods. Within 90 days of receipt peals before submission to the Regional of the report, the Regional Director or Director. The grantee may make grant- Associate Director will notify the ee-related appeals to the Regional Di- grantee in writing of the disposition of rector. The appeal will contain docu- the appeal. mented justification supporting the ap- (e) The decision of the Associate Di- pellant’s position, specifying the mone- rector at the second appeal level will tary figure in dispute and the provi- be the final administrative decision of sions in Federal law, regulation, or pol- FEMA. icy with which the appellant believes the initial action was inconsistent. §§ 204.55–204.60 [Reserved] (b) Levels of appeal. (1) The Regional Director will consider first appeals for fire management assistance grant-re- Subpart E—Grant Administration lated decisions under subparts A § 204.61 Cost share. through E of this part. (2) The Associate Director will con- (a) All fire management assistance sider appeals of the Regional Director’s grants are subject to a cost share. The decision on any first appeal under para- Federal cost share for fire management graph (b)(1) of this section. assistance grants is seventy-five per- (c) Time limits. (1) Appellants must cent (75%). file appeals within 60 days after receipt (b) As stated in § 204.25, the cost share of a notice of the action that is being provision will be outlined in the terms appealed. and conditions of the FEMA-State

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Agreement for the Fire Management part shall be liable to the United Assistance Grant Program. States to the extent that we incur costs attributable to the intentional § 204.62 Duplication and recovery of act or omission that caused the condi- assistance. tion. We may provide assistance under (a) Duplication of benefits. We provide this part, but it will be conditioned on supplementary assistance under the an agreement by the applicant to co- Stafford Act, which generally may not operate with us in efforts to recover duplicate benefits received by or avail- the cost of the assistance from the lia- able to the applicant from insurance, ble party. A person shall not be liable other assistance programs, legal under this section as a result of actions awards, or any other source to address the person takes or omits in the course the same purpose. An applicant must of rendering care or assistance in re- notify us of all benefits that it receives sponse to the fire. or anticipates from other sources for the same purpose, and must seek all § 204.63 Allowable costs. such benefits available to them. We 44 CFR 13.22 establishes general poli- will reduce the grant by the amounts cies for determining allowable costs. available for the same purpose from (a) We will reimburse direct costs for another source. We may provide assist- the administration of a fire manage- ance under this Part when other bene- ment assistance grant under 44 CFR fits are available to an applicant, but part 13. the applicant will be liable to us for (b) We will reimburse indirect costs any duplicative amounts that it re- for the administration of a fire man- ceives or has available to it from other agement assistance grant in compli- sources, and must repay us for such ance with the Grantee’s approved indi- amounts. rect cost rate under OMB Circular A– (b) Duplication of programs. We will 87. not provide assistance under this part for activities for which another Federal § 204.64 Reporting and audit require- agency has more specific or primary ments authority to provide assistance for the (a) Reporting. Within 90-days of the same purpose. We may disallow or re- Performance Period expiration date, coup amounts that fall within another the State will submit a final Financial Federal agency’s authority. We may Status Report (FEMA Form 20–10), provide assistance under this part, but which reports all costs incurred within the applicant must agree to seek as- the incident period and all administra- sistance from the appropriate Federal tive costs incurred within the perform- agency and to repay us for amounts ance period; and that are within another Agency’s au- (b) Audit. (1) Audits will be per- thority. formed, for both the Grantee and the (c) Negligence. We will provide no as- subgrantees, under 44 CFR 13.26. sistance to an applicant for costs at- (2) FEMA may elect to conduct a pro- tributable to applicant’s own neg- gram-specific Federal audit on the Fire ligence. If the applicant suspects neg- Management Assistance Grant or a ligence by a third party for causing a subgrant. condition for which we made assistance available under this Part, the applicant PART 205 [RESERVED] is responsible for taking all reasonable steps to recover all costs attributable PART 206—FEDERAL DISASTER AS- to the negligence of the third party. We generally consider such amounts to be SISTANCE FOR DISASTERS DE- duplicated benefits available to the CLARED ON OR AFTER NOVEM- Grantee or subgrantee, and will treat BER 23, 1988 them consistent with (a) of this section. Subpart A—General (d) Intentional acts. Any person who Sec. intentionally causes a condition for 206.1 Purpose. which assistance is provided under this 206.2 Definitions.

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206.3 Policy. Subpart D—Federal Assistance to 206.4 State emergency plans. Individuals and Households 206.5 Assistance by other Federal agencies. 206.6 Donation or loan of Federal equipment 206.101 Temporary housing assistance for and supplies. emergencies and major disasters declared on or before October 14, 2002. 206.7 Implementation of assistance from 206.102–206.109 [Reserved] other Federal agencies. 206.110 Federal assistance to individuals and 206.8 Reimbursement of other Federal agen- households. cies. 206.111 Definitions. 206.9 Nonliability. 206.112 Registration period. 206.10 Use of local firms and individuals. 206.113 Eligibility factors. 206.11 Nondiscrimination in disaster assist- 206.114 Criteria for continued assistance. ance. 206.115 Appeals. 206.12 Use and coordination of relief organi- 206.116 Recovery of funds. zations. 206.117 Housing assistance. 206.118 Disposal of housing units. 206.13 Standards and reviews. 206.119 Financial assistance to address 206.14 Criminal and civil penalties. other needs. 206.15 Recovery of assistance. 206.120 State administration of other needs 206.16 Audit and investigations. assistance. 206.17 Effective date. 206.121–206.130 [Reserved] 206.18–206.30 [Reserved] Subpart E—Individual and Family Grant Subpart B—The Declaration Process Programs

206.31 Purpose. 206.131 Individual and Family Grant Pro- 206.32 Definitions. gram for major disasters declared on or 206.33 Preliminary damage assessment. before October 14, 2002. 206.132–206.140 [Reserved] 206.34 Request for utilization of Department of Defense (DOD) resources. Subpart F—Other Individual Assistance 206.35 Requests for emergency declarations. 206.36 Requests for major disaster declara- 206.141 Disaster unemployment assistance. tions. 206.142–206.150 [Reserved] 206.37 Processing requests for declarations 206.151 Food commodities. of a major disaster or emergency. 206.152–206.160 [Reserved] 206.38 Presidential determination. 206.161 Relocation assistance. 206.162–206.163 [Reserved] 206.39 Notification. 206.164 Disaster legal services. 206.40 Designation of affected areas and eli- 206.165–206.170 [Reserved] gible assistance. 206.171 Crisis counseling assistance and 206.41 Appointment of disaster officials. training. 206.42 Responsibilities of coordinating offi- 206.172–206.180 [Reserved] cers. 206.181 Use of gifts and bequests for disaster 206.43 Emergency support teams. assistance purposes. 206.44 FEMA-State Agreements. 206.182–206.190 [Reserved] 206.45 Loans of non-Federal share. 206.191 Duplication of benefits. 206.46 Appeals. 206.192–206.199 [Reserved] 206.47 Cost-share adjustments. Subpart G—Public Assistance Project 206.48 Factors considered when evaluating a Administration Governor’s request for major disaster declaration. 206.200 General. 206.49–206.60 [Reserved] 206.201 Definitions used in this subpart. 206.202 Application procedures. Subpart C—Emergency Assistance 206.203 Federal grant assistance. 206.204 Project performance. 206.61 Purpose. 206.205 Payment of claims. 206.62 Available assistance. 206.206 Appeals. 206.63 Provision of assistance. 206.207 Administrative and audit require- 206.64 Coordination of assistance. ments. 206.65 Cost sharing. 206.208 Direct Federal assistance. 206.209–206.219 [Reserved] 206.66 Limitation on expenditures. 206.67 Requirement when limitation is ex- Subpart H—Public Assistance Eligibility ceeded. 206.68–206.100 [Reserved] 206.220 General.

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206.221 Definitions. 206.431 Definitions. 206.222 Applicant eligibility. 206.432 Federal grant assistance. 206.223 General work eligibility. 206.433 State responsibilities. 206.224 Debris removal. 206.434 Eligibility. 206.225 Emergency work. 206.435 Project identification and selection 206.226 Restoration of damaged facilities. criteria. 206.227 Snow assistance. 206.436 Application procedures. 206.228 Allowable costs. 206.229–206.249 [Reserved] 206.437 State administrative plan. 206.438 Project management. Subpart I—Public Assistance Insurance 206.439 Allowable costs. Requirements 206.440 Appeals. 206.250 General. AUTHORITY: Robert T. Stafford Disaster 206.251 Definitions. Relief and Emergency Assistance Act, 42 206.252 Insurance requirements for facilities U.S.C. 5121–5206; Reorganization Plan No. 3 of damaged by flood. 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; 206.253 Insurance requirements for facilities E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. damaged by disasters other than flood. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 206.254–206.339 [Reserved] Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p. 214.

Subpart J—Coastal Barrier Resources Act SOURCE: 54 FR 11615, Mar. 21, 1989, unless otherwise noted. 206.340 Purpose of subpart. 206.341 Policy. 206.342 Definitions. Subpart A—General 206.343 Scope. 206.344 Limitations on Federal expenditures. SOURCE: 55 FR 2288, Jan. 23, 1990, unless 206.345 Exceptions. otherwise noted. 206.346 Applicability to disaster assistance. 206.347 Requirements. § 206.1 Purpose. 206.348 Consultation. (a) Purpose. The purpose of this sub- 206.349 Consistency determinations. 206.350–206.359 [Reserved] part is to prescribe the policies and procedures to be followed in imple- Subpart K—Community Disaster Loans menting those sections of Public Law 93–288, as amended, delegated to the Di- 206.360 Purpose. rector, Federal Emergency Manage- 206.361 Loan program. ment Agency (FEMA). The rules in this 206.362 Responsibilities. 206.363 Eligibility criteria. subpart apply to major disasters and 206.364 Loan application. emergencies declared by the President 206.365 Loan administration. on or after November 23, 1988, the date 206.366 Loan cancellation. of enactment of the Robert T. Stafford 206.367 Loan repayment. Disaster Relief and Emergency Assist- 206.368–206.389 [Reserved] ance Act, 42 U.S.C. 5121 et seq. (b) Prior regulations. Prior regulations Subpart L—Fire Suppression Assistance relating to major disasters and emer- 206.390 General. gencies declared by the President be- 206.391 FEMA-State Agreement. fore November 23, 1988 were published 206.392 Request for assistance. in 44 CFR part 205 (see 44 CFR part 205 206.393 Providing assistance. as contained in the CFR edition revised 206.394 Cost eligibility. as of October 1, 1994). 206.395 Grant administration. 206.396–206.399 [Reserved] [59 FR 53363, Oct. 24, 1994]

Subpart M—Minimum Standards § 206.2 Definitions. 206.400 General. (a) General. The following definitions 206.401 Local standards. have general applicability throughout 206.402 Compliance. this part: (1) The Stafford Act: The Robert T. Subpart N—Hazard Mitigation Grant Stafford Disaster Relief and Emer- Program gency Assistance Act, Public Law 93– 206.430 General. 288, as amended.

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(2) Applicant: Individuals, families, clude the American National Red States and local governments, or pri- Cross. vate nonprofit organizations who apply (11) Federal Coordinating Officer for assistance as a result of a declara- (FCO): The person appointed by the Di- tion of a major disaster or emergency. rector, or in his absence, the Deputy (3) Associate Director or Executive Asso- Director, or alternatively the Asso- ciate Director: ciate Director, to coordinate Federal (i) Unless otherwise specified in sub- assistance in an emergency or a major parts A through K of this part, the As- disaster. sociate Director or Assistant Director (12) Governor: The chief executive of of the Readiness, Response and Recov- any State or the Acting Governor. ery Directorate, or his/her designated (13) Governor’s Authorized Representa- representative. tive (GAR): The person empowered by (ii) Unless otherwise specified in sub- the Governor to execute, on behalf of parts M and N of this part, the Asso- the State, all necessary documents for ciate Director or Executive Associate disaster assistance. Director of the Mitigation Directorate, (14) Hazard mitigation: Any cost effec- or his/her designated representative. tive measure which will reduce the po- (4) Concurrent, multiple major disasters: tential for damage to a facility from a In considering a request for an ad- disaster event. vance, the term concurrent multiple major disasters means major disasters (15) Individual assistance: Supple- which occur within a 12-month period mentary Federal assistance provided immediately preceding the major dis- under the Stafford Act to individuals aster for which an advance of the non- and families adversely affected by a Federal share is requested pursuant to major disaster or an emergency. Such section 319 of the Stafford Act. assistance may be provided directly by (5) Contractor: Any individual, part- the Federal Government or through nership, corporation, agency, or other State or local governments or disaster entity (other than an organization en- relief organizations. For further infor- gaged in the business of insurance) per- mation, see subparts D, E, and F of forming work by contract for the Fed- these regulations. eral Government or a State or local (16) Local government: Any county, agency. city, village, town, district, or other (6) Designated area: Any emergency or political subdivision of any State; any major disaster-affected portion of a Indian tribe or authorized tribal orga- State which has been determined eligi- nization; any Alaska Native village or ble for Federal assistance. organization; and includes any rural (7) Director: The Director, FEMA. community, unincorporated town or (8) Disaster Recovery Manager (DRM): village, or other public entity for The person appointed to exercise the which an application for assistance is authority of a Regional Director for a made by a State or political subdivi- particular emergency or major dis- sion thereof. aster. (17) Major disaster: Any natural catas- (9) Emergency: Any occasion or in- trophe (including any hurricane, tor- stance for which, in the determination nado, storm, high water, winddriven of the President, Federal assistance is water, tidal wave, tsunami, earth- needed to supplement State and local quake, volcanic eruption, landslide, efforts and capabilities to save lives mudslide, snowstorm, or drought), or, and to protect property and public regardless of cause, any fire, flood, or health and safety, or to lessen or avert explosion, in any part of the United the threat of a catastrophe in any part States, which in the determination of of the United States. the President causes damage of suffi- (10) Federal agency: Any department, cient severity and magnitude to war- independent establishment, Govern- rant major disaster assistance under ment corporation, or other agency of this Act to supplement the efforts and the executive branch of the Federal available resources of States, local Government, including the United governments, and disaster relief orga- States Postal Service, but shall not in- nizations in alleviating the damage,

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loss, hardship, or suffering caused ford Act means that State plan which thereby. is designated specifically for State- (18) Mission assignment: Work order level response to emergencies or major issued to a Federal agency by the Re- disasters and which sets forth actions gional Director, Associate Director, or to be taken by the State and local gov- Director, directing completion by that ernments, including those for imple- agency of a specified task and citing menting Federal disaster assistance. funding, other managerial controls, (25) Temporary housing: Temporary and guidance. accommodations provided by the Fed- (19) Private nonprofit organization: eral Government to individuals or fam- Any nongovernmental agency or entity ilies whose homes are made unlivable that currently has: by an emergency or a major disaster. (i) An effective ruling letter from the (26) United States: The 50 States, the U.S. Internal Revenue Service granting District of Columbia, Puerto Rico, the tax exemption under section 501 (c), (d), Virgin Islands, Guam, American or (e) of the Internal Revenue Code of Samoa, the Trust Territory of the Pa- 1954; or cific Islands, and the Northern Mariana (ii) Satisfactory evidence from the Islands. State that the organization or entity is (27) Voluntary organization: Any char- a nonprofit one organized or doing tered or otherwise duly recognized tax- business under State law. exempt local, State, or national orga- (20) Public Assistance: Supplementary nization or group which has provided Federal assistance provided under the or may provide needed services to the Stafford Act to State and local govern- States, local governments, or individ- ments or certain private, nonprofit or- uals in coping with an emergency or a ganizations other than assistance for major disaster. the direct benefit of individuals and (b) Additional definitions. Definitions families. For further information, see which apply to individual subparts are subparts G and H of this part. Fire found in those subparts. Management Assistance Grants under section 420 of the Stafford Act are also [54 FR 11615, Mar. 21, 1989, as amended at 63 considered Public Assistance. See sub- FR 17110, Apr. 8, 1998; 66 FR 57352, 57353, Nov. part K of this part and part 204 of this 14, 2001] chapter. § 206.3 Policy. (21) Regional Director: A director of a regional office of FEMA, or his/her des- It is the policy of FEMA to provide ignated representative. As used in an orderly and continuing means of as- these regulations, Regional Director sistance by the Federal Government to also means the Disaster Recovery Man- State and local governments in car- ager who has been appointed to exer- rying out their responsibilities to al- cise the authority of the Regional Di- leviate the suffering and damage that rector for a particular emergency or result from major disasters and emer- major disaster. gencies by: (22) State: Any State of the United (a) Providing Federal assistance pro- States, the District of Columbia, Puer- grams for public and private losses and to Rico, the Virgin Islands, Guam, needs sustained in disasters; American Samoa, the Trust Territory (b) Encouraging the development of of the Pacific Islands, the Common- comprehensive disaster preparedness wealth of the Northern Mariana Is- and assistance plans, programs, capa- lands, the Federated States of Micro- bilities, and organizations by the nesia, or the Republic of the Marshall States and local governments; Islands. (c) Achieving greater coordination (23) State Coordinating Officer (SCO): and responsiveness of disaster pre- The person appointed by the Governor paredness and relief programs; to act in cooperation with the Federal (d) Encouraging individuals, States, Coordinating Officer to administer dis- and local governments to obtain insur- aster recovery efforts. ance coverage and thereby reduce their (24) State emergency plan: As used in dependence on governmental assist- section 401 or section 501 of the Staf- ance; and

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(e) Encouraging hazard mitigation the extension of credit, for use or dis- measures, such as development of land- tribution by such governments in ac- use and construction regulations, cordance with the purposes of this Act; floodplain management, protection of (2) Distributing medicine, food, and wetlands, and environmental planning, other consumable supplies; or to reduce losses from disasters. (3) Performing work or services to provide emergency assistance author- § 206.4 State emergency plans. ized in the Stafford Act. The State shall set forth in its emer- (d) Disaster assistance by other Fed- gency plan all responsibilities and ac- eral agencies is subject to the coordi- tions specified in the Stafford Act and nation of the FCO. Federal agencies these regulations that are required of shall provide any reports or informa- the State and its political subdivisions tion about disaster assistance rendered to prepare for and respond to major under the provisions of these regula- disasters and emergencies and to facili- tions or authorities independent of the tate the delivery of Federal disaster as- Stafford Act, that the FCO or Regional sistance. Although not mandatory, Director considers necessary and re- prior to the adoption of the final plan, quests from the agencies. the State is encouraged to circulate (e) Assistance furnished by any Fed- the plan to local governments for re- eral agency under paragraphs (a), (b), view and comment. or (c) of this section is subject to the [55 FR 2288, Jan. 23, 1990, 55 FR 5458, Feb. 15, criteria provided by the Associate Di- 1990] rector under these regulations. (f) Assistance under paragraphs (a), § 206.5 Assistance by other Federal (b), or (c) of this section, when directed agencies. by the Associate Director or Regional (a) In any declared major disaster, Director, does not apply to nor shall it the Associate Director or the Regional affect the authority of any Federal Director may direct any Federal agen- agency to provide disaster assistance cy to utilize its authorities and the re- independent of the Stafford Act. sources granted to it under Federal law (g) In carrying out the purposes of (including personnel, equipment, sup- the Stafford Act, any Federal agency plies, facilities, and managerial, tech- may accept and utilize, with the con- nical, and advisory services) to support sent of the State or local government, State and local assistance efforts. the services, personnel, materials, and (b) In any declared emergency, the facilities of any State or local govern- Associate Director or the Regional Di- ment, agency, office, or employee. rector may direct any Federal agency Such utilization shall not make such to utilize its authorities and the re- services, materials, or facilities Fed- sources granted to it under Federal law eral in nature nor make the State or (including personnel, equipment, sup- local government or agency an arm or plies, facilities, and managerial, tech- agent of the Federal Government. nical, and advisory services) to support (h) Any Federal agency charged with emergency efforts by State and local the administration of a Federal assist- governments to save lives; protect ance program may, if so requested by property, public health and safety; and the applicant State or local authori- lessen or avert the threat of a catas- ties, modify or waive, for a major dis- trophe. aster, such administrative conditions (c) In any declared major disaster or for assistance as would otherwise pre- emergency, the Associate Director or vent the giving of assistance under the Regional Director may direct any such programs if the inability to meet Federal agency to provide emergency such conditions is a result of the major assistance necessary to save lives and disaster. to protect property, public health, and safety by: § 206.6 Donation or loan of Federal (1) Utilizing, lending, or donating to equipment and supplies. State and local governments Federal (a) In any major disaster or emer- equipment, supplies, facilities, per- gency, the Associate Director or the sonnel, and other resources, other than Regional Director may direct Federal

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agencies to donate or loan their equip- disaster or emergency area designated ment and supplies to State and local by the Regional Director. governments for use and distribution (3) Travel and per diem of Federal by them for the purposes of the Staf- military personnel assigned solely to ford Act. the performance of services directed by (b) A donation or loan may include the Associate Director or the Regional equipment and supplies determined Director in the major disaster or emer- under applicable laws and regulations gency area designated by the Regional to be surplus to the needs and respon- Director. sibilities of the Federal Government. (4) Cost of work, services, and mate- The State shall certify that the surplus rials procured under contract for the property is usable and necessary for purposes of providing assistance di- current disaster purposes in order to rected by the Associate Director or the receive a donation or loan. Such a do- Regional Director. nation or loan is made in accordance (5) Cost of materials, equipment, and with procedures prescribed by the Gen- supplies (including transportation, re- eral Services Administration. pair, and maintenance) from regular § 206.7 Implementation of assistance stocks used in providing directed as- from other Federal agencies. sistance. (6) All costs incurred which are paid All directives, known as mission as- from trust, revolving, or other funds, signments, to other Federal agencies and whose reimbursement is required shall be in writing, or shall be confirmed in writing if made orally, and by law. shall identify the specific task to be (7) Other costs submitted by an agen- performed and the requirements or cri- cy with written justification or other- teria to be followed. If the Federal wise agreed to in writing by the Asso- agency is to be reimbursed, the letter ciate Director or the Regional Director will also contain a dollar amount and the agency. which is not to be exceeded in accom- (d) Procedures for reimbursement. Fed- plishing the task without prior ap- eral agencies performing work under a proval of the issuing official. mission assignment will submit requests for reimbursement, as follows: § 206.8 Reimbursement of other Fed- (1) Federal agencies may submit re- eral agencies. quests for reimbursement of amounts (a) Assistance furnished under § 206.5 greater than $1,000 at any time. Re- (a) or (b) of this subpart may be pro- quests for lesser amounts may be sub- vided with or without compensation as mitted only quarterly. An agency shall considered appropriate by the Asso- submit a final accounting of expendi- ciate Director or Regional Director. tures after completion of the agency’s (b) The Associate Director or the Re- work under each directive for assist- gional Director may not approve reim- ance. The time limit and method for bursement of costs incurred while per- submission of reimbursement requests forming work pursuant to disaster as- will be stipulated in the mission assistance authorities independent of the signment letter. Stafford Act. (2) An agency shall document its re- (c) Expenditures eligible for reimburse- quest for reimbursement with specific ment. The Associate Director or the Re- details on personnel services, travel, gional Director may approve reim- and all other expenses by object class bursement of the following costs which as specified in OMB Circular A–12 and are incurred in providing requested as- by any other subobject class used in sistance. the agency’s accounting system. Where (1) Overtime, travel, and per diem of contracts constitute a significant por- permanent Federal agency personnel. tion of the billings, the agency shall (2) Wages, travel, and per diem of provide a listing of individual con- temporary Federal agency personnel tracts and their associated costs. assigned solely to performance of serv- (3) Reimbursement requests shall cite ices directed by the Associate Director the specific mission assignment under or the Regional Director in the major which the work was performed, and the

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major disaster or emergency identifica- with 44 CFR part 7, Nondiscrimination tion number. Requests for reimburse- in Federally-Assisted Programs. ment of costs incurred under more (b) All personnel carrying out Fed- than one mission assignment may not eral major disaster or emergency as- be combined for billing purposes. sistance functions, including the dis- (4) Unless otherwise agreed, an agen- tribution of supplies, the processing of cy shall direct all requests for reim- the applications, and other relief and bursement to the Regional Director of assistance activities, shall perform the region in which the costs were in- their work in an equitable and impar- curred. tial manner, without discrimination on (5) A Federal agency requesting reim- the grounds of race, color, religion, na- bursement shall retain all financial tionality, sex, age, or economic status. records, supporting documents, statis- (c) As a condition of participation in tical records, and other records perti- the distribution of assistance or sup- nent to the provision of services or use plies under the Stafford Act, or of re- of resources by that agency. These ma- ceiving assistance under the Stafford terials shall be accessible to duly au- Act, government bodies and other orga- thorized representatives of FEMA and nizations shall provide a written assur- the U.S. Comptroller General, for the ance of their intent to comply with purpose of making audits, excerpts, regulations relating to nondiscrimina- and transcripts, for a period of 3 years tion. starting from the date of submission of (d) The agency shall make available the final billing. to employees, applicants, participants, beneficiaries, and other interested par- § 206.9 Nonliability. ties such information regarding the The Federal Government shall not be provisions of this regulation and its ap- liable for any claim based upon the ex- plicability to the programs or activi- ercise or performance of, or the failure ties conducted by the agency, and to exercise or perform a discretionary make such information available to function or duty on the part of a Fed- them in such manner as the head of the eral agency or an employee of the Fed- agency finds necessary to apprise such eral Government in carrying out the persons of the protections against dis- provisions of the Stafford Act. crimination assured them by the Act and this regulation. § 206.10 Use of local firms and individuals. § 206.12 Use and coordination of relief In the expenditure of Federal funds organizations. for debris removal, distribution of sup- (a) In providing relief and assistance plies, reconstruction, and other major under the Stafford Act, the FCO or Re- disaster or emergency assistance ac- gional Director may utilize, with their tivities which may be carried out by consent, the personnel and facilities of contract or agreement with private or- the American National Red Cross, the ganizations, firms, or individuals, pref- Salvation Army, the Mennonite Dis- erence shall be given, to the extent fea- aster Service, and other voluntary or- sible and practicable, to those organi- ganizations in the distribution of medi- zations, firms, and individuals residing cine, food, supplies, or other items, and or doing business primarily in the area in the restoration, rehabilitation, or affected by such major disaster or reconstruction of community services emergency. This shall not be consid- and essential facilities, whenever the ered to restrict the use of Department FCO or Regional Director finds that of Defense resources in the provision of such utilization is necessary. major disaster assistance under the (b) The Associate Director is author- Stafford Act. ized to enter into agreements with the American Red Cross, The Salvation § 206.11 Nondiscrimination in disaster Army, the Mennonite Disaster Service, assistance. and other voluntary organizations en- (a) Federal financial assistance to gaged in providing relief during and the States or their political subdivi- after a major disaster or emergency. sions is conditioned on full compliance Any agreement shall include provisions

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assuring that use of Federal facilities, action may be brought in an appro- supplies, and services will be in compli- priate United States district court. ance with § 206.11, Nondiscrimination in (c) Referral to Attorney General. The Disaster Assistance, and § 206.191, Du- Associate Director shall expeditously plication of Benefits, of these regula- refer to the Attorney General for ap- tions and such other regulations as the propriate action any evidence devel- Associate Director may issue. The FCO oped in the performance of functions may coordinate the disaster relief ac- under this Act that may warrant con- tivities of the voluntary organizations sideration for criminal prosecution. which agree to operate under his/her (d) Civil penalty. Any individual who direction. knowingly violates any order or regu- (c) Nothing contained in this section lation issued under this Act shall be shall be construed to limit or in any subject to a civil penalty of not more way affect the responsibilities of the than $5,000 for each violation. American National Red Cross as stated in Public Law 58–4. § 206.15 Recovery of assistance. § 206.13 Standards and reviews. (a) Party liable. Any person who in- (a) The Associate Director shall es- tentionally causes a condition for tablish program standards and assess which Federal assistance is provided the efficiency and effectiveness of pro- under this Act or under any other Fed- grams administered under the Stafford eral law as a result of a declaration of Act by conducting annual reviews of a major disaster or emergency under the activities of Federal agencies and this Act shall be liable to the United State and local governments involved States for the reasonable costs in- in major disaster or emergency re- curred by the United States in respond- sponse efforts. ing to such disaster or emergency to (b) In carrying out this provision, the the extent that such costs are attrib- Associate Director or Regional Direc- utable to the intentional act or omis- tor may direct Federal agencies to sub- sion of such person which caused such mit reports relating to their disaster condition. Such action shall be brought assistance activities. The Associate Di- in an appropriate United States Dis- rector or the Regional Director may re- trict Court. quest similar reports from the States (b) Rendering of care. A person shall relating to these activities on the part not be liable under this section for of State and local governments. Addi- costs incurred by the United States as tionally, the Associate Director or Re- a result of actions taken or omitted by gional Director may conduct inde- such person in the course of rendering pendent investigations, studies, and care or assistance in response to a evaluations as necessary to complete major disaster or emergency. the reviews. § 206.16 Audit and investigations. [55 FR 2288, Jan. 23, 1990; 55 FR 5458, Feb. 15, 1990] (a) Subject to the provisions of chapter 75 of title 31, United States Code, § 206.14 Criminal and civil penalties. and 44 CFR part 14, relating to require- (a) Misuse of funds. Any person who ments for single audits, the Associate knowingly misapplies the proceeds of a Director or Regional Director shall loan or other cash benefit obtained conduct audits and investigations as under this Act shall be fined an necessary to assure compliance with amount equal to one and one-half the Stafford Act, and in connection times the misapplied amount of the therewith may question such persons proceeds or cash benefit. as may be necessary to carry out such (b) Civil enforcement. Whenever it ap- audits and investigations. pears that any person has violated or is (b) For purposes of audits and inves- about to violate any provision of this tigations under this section, FEMA or Act, including any civil penalty im- State auditors, the Governor’s Author- posed under this Act, the Attorney ized Representative, the Regional Di- General may bring a civil action for rector, the Associate Director, and the such relief as may be appropriate. Such Comptroller General of the United

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States, or their duly authorized rep- which causes damage or hardship that resentatives, may inspect any books, may result in a Presidential declara- documents, papers, and records of any tion of a major disaster or an emer- person relating to any activity under- gency. taken or funded under the Stafford (f) Incident period: The time interval Act. during which the disaster-causing incident occurs. No Federal assistance § 206.17 Effective date. under the Act shall be approved unless These regulations are effective for all the damage or hardship to be alleviated major disasters or emergencies de- resulted from the disaster-causing inci- clared on or after November 23, 1988. dent which took place during the incident period or was in anticipation of §§ 206.18–206.30 [Reserved] that incident. The incident period will be established by FEMA in the FEMA- Subpart B—The Declaration State Agreement and published in the Process FEDERAL REGISTER.

SOURCE: 55 FR 2292, Jan. 23, 1990, unless § 206.33 Preliminary damage assess- otherwise noted. ment. The preliminary damage assessment § 206.31 Purpose. (PDA) process is a mechanism used to The purpose of this subpart is to de- determine the impact and magnitude scribe the process leading to a Presi- of damage and the resulting unmet dential declaration of a major disaster needs of individuals, businesses, the or an emergency and the actions trig- public sector, and the community as a gered by such a declaration. whole. Informtion collected is used by § 206.32 Definitions. the State as a basis for the Governor’s request, and by FEMA to document the All definitions in the Stafford Act recommendation made to the President and in § 206.2 apply. In addition, the fol- in response to the Governor’s request. lowing definitions apply: It is in the best interest of all parties (a) Appeal: A request for reconsider- to combine State and Federal per- ation of a determination on any action sonnel resources by performing a joint related to Federal assistance under the PDA prior to the initiation of a Gov- Stafford Act and these regulations. ernor’s request, as follows. Specific procedures for appeals are contained in the relevant subparts of these (a) Preassessment by the State. When regulations. an incident occurs, or is imminent, (b) Commitment: A certification by the which the State official responsible for Governor that the State and local gov- disaster operations determines may be ernments will expend a reasonable beyond the State and local government amount of funds to alleviate the effects capabilities to respond, the State will of the major disaster or emergency, for request the Regional Director to per- which no Federal reimbursement will form a joint FEMA-State preliminary be requested. damage assessment. It is not antici- (c) Disaster Application Center: A cen- pated that all occurrences will result ter established in a centralized loca- in the requirement for assistance; tion within the disaster area for indi- therefore, the State will be expected to viduals, families, or businesses to apply verify their initial information, in for disaster aid. some manner, before requesting this (d) FEMA-State Agreement: A formal support. legal document stating the under- (b) Damage assessment teams. Damage standings, commitments, and binding assessment teams will be composed of conditions for assistance applicable as at least one representative of the Fed- the result of the major disaster or eral Government and one representa- emergency declared by the President. tive of the State. A local government (e) Incident: Any condition which representative, familiar with the ex- meets the definition of major disaster tent and location of damage in his/her or emergency as set forth in § 206.2 community, should also be included, if

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possible. Other State and Federal agen- dicating why the request for assistance cies, and voluntary relief organizations could not be made during the initial 48 may also be asked to participate, as hours. The request shall include: needed. It is the State’s responsibility (1) Information describing the types to coordinate State and local partici- and amount of DOD emergency assist- pation in the PDA and to ensure that ance being requested; the participants receive timely notifi- (2) Confirmation that the Governor cation concerning the schedule. A has taken appropriate action under FEMA official will brief team members State law and directed the execution of on damage criteria, the kind of infor- the State emergency plan; mation to be collected for the par- (3) A finding that the situation is of ticular incident, and reporting require- such severity and magnitude that ef- ments. fective response is beyond the capabili- (c) Review of findings. At the close of ties of the State and affected local gov- the PDA, FEMA will consult with ernments and that Federal assistance State officials to discuss findings and is necessary for the preservation of life reconcile any differences. and property; (d) Exceptions. The requirement for a (4) A certification by the Governor joint PDA may be waived for those in- that the State and local government cidents of unusual severity and mag- will reimburse FEMA for the non-Fed- nitude that do not require field damage eral share of the cost of such work; and assessments to determine the need for (5) An agreement: supplemental Federal assistance under (i) To provide all lands, easements the Act, or in such other instances de- and rights-of-way necessary to accom- termined by the Regional Director plish the approved work without cost upon consultation with the State. It to the United States; may be necessary, however, to conduct (ii) To hold and save the United an assessment to determine unmet States free from damages due to the re- needs for managerial response pur- quested work, and to indemnify the poses. Federal government against any claims arising from such work; and § 206.34 Request for utilization of De- (iii) To assist DOD in all support and partment of Defense (DOD) re- local jurisdictional matters. sources. (c) Processing the request. Upon re- (a) General. During the immediate ceipt of the request, the Regional Di- aftermath of an incident which may ul- rector shall gather adequate informa- timately qualify for a Presidential dec- tion to support a recommendation and laration of a major disaster or emer- forward it to the Associate Director. If gency, when threats to life and prop- the Associate Director determines that erty are present which cannot be effec- such work is essential to save lives and tively dealt with by the State or local protect property, he/she will issue a governments, the Associate Director mission assignment to DOD author- may direct DOD to utilize DOD per- izing direct Federal assistance to the sonnel and equipment for removal of extent deemed appropriate. debris and wreckage and temporary (d) Implementation of assistance. The restoration of essential public facilities performance of emergency work may and services. not exceed a period of 10 days from the (b) Request process. The Governor of a date of the mission assignment. State, or the Acting Governor in his/ (e) Limits. Generally, no work shall be her absence, may request such DOD as- approved under this section which falls sistance. The Governor should submit within the statutory authority of DOD the request to the Associate Director or another Federal agency. However, through the appropriate Regional Di- where there are significant unmet rector to ensure prompt acknowledg- needs of sufficient severity and mag- ment and processing. The request must nitude, not addressed by other assist- be submitted within 48 hours of the oc- ance, which could appropriately be ad- currence of the incident. Requests dressed under this section of the Staf- made after that time may still be con- ford Act, the involvement of other Fed- sidered if information is submitted in- eral agencies would not preclude the

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authorization of DOD assistance by the (b) The basis for the Governor’s re- Associate Director. quest must be the finding that the situ- (f) Federal share. The Federal share of ation: assistance under this section shall be (1) Is of such severity and magnitude not less than 75 percent of the cost of that effective response is beyond the eligible work. capability of the State and the affected (g) Project management. DOD shall en- local government(s); and sure that the work is completed in ac- (2) Requires supplementary Federal cordance with the approved scope of emergency assistance to save lives and work, costs, and time limitations in to protect property, public health and the mission assignment. DOD shall also safety, or to lessen or avert the threat of a disaster. keep the Regional Director and the (c) In addition to the above findings, State advised of work progress and the complete request shall include: other project developments. It is the (1) Confirmation that the Governor responsibility of DOD to ensure compli- has taken appropriate action under ance with applicable Federal, State State law and directed the execution of and local legal requirements. A final the State emergency plan; report will be submitted to the Re- (2) Information describing the State gional Director upon termination of all and local efforts and resources which direct Federal assistance work. Final have been or will be used to alleviate reports shall be signed by a representa- the emergency; tive of DOD and the State. Once the (3) Information describing other Fed- final eligible cost is determined, DOD eral agency efforts and resources which will request reimbursement from have been or will be used in responding FEMA and FEMA will submit a bill to to this incident; and the State for the non-Federal share of (4) Identification of the type and ex- the mission assignment. tent of additional Federal aid required. (h) Reimbursement of DOD. Reim- (d) Modified declaration for Federal bursement will be made in accordance emergencies. The requirement for a Gov- with § 206.8 of these regulations. ernor’s request under paragraph (a) of this section can be waived when an § 206.35 Requests for emergency dec- emergency exists for which the pri- larations. mary responsibility rests in the Fed- (a) When an incident occurs or eral government because the emer- threatens to occur in a State, which gency involves a subject area for would not qualify under the definition which, under the Constitution or laws of a major disaster, the Governor of a of the United States, the Federal government exercises exclusive or pre- State, or the Acting Governor in his/ eminent responsibility and authority. her absence, may request that the Any party may bring the existence of President declare an emergency. The such a situation to the attention of the Governor should submit the request to FEMA Regional Director. Any rec- the President through the appropriate ommendation for a Presidential dec- Regional Director to ensure prompt ac- laration of emergency in the absence of knowledgment and processing. The re- a Governor’s request must be initiated quest must be submitted within 5 days by the Regional Director or trans- after the need for assistance under title mitted through the Regional Director V becomes apparent, but no longer by another Federal agency. In deter- than 30 days after the occurrence of the mining that such an emergency exists, incident, in order to be considered. The the Associate Director or Regional Di- period may be extended by the Asso- rector shall consult the Governor of ciate Director provided that a written the affected State, if practicable. request for such extension is made by (e) Other authorities. It is not in- the Governor, or Acting Governor, dur- tended for an emergency declaration to ing the 30-day period immediately fol- preempt other Federal agency authori- lowing the incident. The extension re- ties and/or established plans and request must stipulate the reason for the sponse mechanisms in place prior to delay. the enactment of the Stafford Act.

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§ 206.36 Requests for major disaster damage assessments are not necessary declarations. to determine the requirement for sup- (a) When a catastrophe occurs in a plemental Federal assistance, the Gov- State, the Governor of a State, or the ernor or Acting Governor may send an Acting Governor in his/her absence, abbreviated written request through may request a major disaster declara- the Regional Director for a declaration tion. The Governor should submit the of a major disaster. This may be trans- request to the President through the mitted in the most expeditious manner appropriate Regional Director to en- available. In the event the FEMA Re- sure prompt acknowledgment and proc- gional Office is severely impacted by essing. The request must be submitted the catastrophe, the request may be within 30 days of the occurrence of the addressed to the Director of FEMA. incident in order to be considered. The The request must indicate a finding in 30-day period may be extended by the accordance with § 206.36(b), and must Associate Director, provided that a include as a minimum the information written request for an extension is sub- requested by § 206.36 (c)(1), (c)(3), and mitted by the Governor, or Acting Gov- (c)(5). Upon receipt of the request, ernor, during this 30-day period. The FEMA shall expedite the processing of extension request will stipulate rea- reports and recommendations to the sons for the delay. President. Notification to the Governor (b) The basis for the request shall be of the Presidential declaration shall be a finding that: in accordance with 44 CFR 206.39. The (1) The situation is of such severity Associate Director shall assure that and magnitude that effective response documentation of the declaration is is beyond the capabilities of the State later assembled to comply fully with and affected local governments; and these regulations. (2) Federal assistance under the Act is necessary to supplement the efforts § 206.37 Processing requests for dec- and available resources of the State, larations of a major disaster or emergency. local governments, disaster relief organizations, and compensation by insur- (a) Acknowledgment. The Regional Di- ance for disaster-related losses. rector shall provide written acknowl- (c) In addition to the above findings, edgment of the Governor’s request. the complete request shall include: (b) Regional summary. Based on infor- (1) Confirmation that the Governor mation obtained by FEMA/State pre- has taken appropriate action under liminary damage assessments of the af- State law and directed the execution of fected area(s) and consultations with the State emergency plan; appropriate State and Federal officials (2) An estimate of the amount and se- and other interested parties, the Re- verity of damages and losses stating gional Director shall promptly prepare the impact of the disaster on the public a summary of the PDA findings. The and private sector; data will be analyzed and submitted (3) Information describing the nature with a recommendation to the Asso- and amount of State and local re- ciate Director. The Regional Analysis sources which have been or will be shall include a discussion of State and committed to alleviate the results of local resources and capabilities, and the disaster; other assistance available to meet the (4) Preliminary estimates of the major disaster or emergency-related types and amount of supplementary needs. Federal disaster assistance needed (c) FEMA recommendation. Based on under the Stafford Act; and all available information, the Director (5) Certification by the Governor that shall formulate a recommendation State and local government obligations which shall be forwarded to the Presi- and expenditures for the current dis- dent with the Governor’s request. aster will comply with all applicable (1) Major disaster recommendation. The cost sharing requirements of the Staf- recommendation will be based on a ford Act. finding that the situation is or is not of (d) For those catastrophes of unusual such severity and magnitude as to be severity and magnitude when field beyond the capabilities of the State

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and its local governments. It will also would not preclude a declaration of an contain a determination of whether or emergency under the Act. not supplemental Federal assistance under the Stafford Act is necessary and § 206.38 Presidential determination. appropriate. In developing a rec- (a) The Governor’s request for a ommendation, FEMA will consider major disaster declaration may result such factors as the amount and type of in either a Presidential declaration of damages; the impact of damages on af- a major disaster or an emergency, or fected individuals, the State, and local denial of the Governor’s request. governments; the available resources (b) The Governor’s request for an of the State and local governments, emergency declaration may result only and other disaster relief organizations; in a Presidential declaration of an the extent and type of insurance in ef- emergency, or denial of the Governor’s fect to cover losses; assistance avail- request. able from other Federal programs and [55 FR 2292, Jan. 23, 1990; 55 FR 5458, Feb. 15, other sources; imminent threats to 1990] public health and safety; recent disaster history in the State; hazard miti- § 206.39 Notification. gation measures taken by the State or (a) The Governor will be promptly local governments, especially imple- notified by the Director or his/her des- mentation of measures required as a ignee of a declaration by the President result of previous major disaster dec- that an emergency or a major disaster larations; and other factors pertinent exists. FEMA also will notify other to a given incident. Federal agencies and other interested (2) Emergency recommendation. The parties. recommendation will be based on a re- (b) The Governor will be promptly port which will indicate whether or not notified by the Director or his/her des- Federal emergency assistance under ignee of a determination that the Gov- section 502 of the Stafford Act is nec- ernor’s request does not justify the use essary to supplement State and local of the authorities of the Stafford Act. efforts to save lives, protect property (c) Following a major disaster or and public health and safety, or to less- emergency declaration, the Regional en or avert the threat of a catastrophe. Director or Associate Director will Only after it has been determined that promptly notify the Governor of the all other resources and authorities designations of assistance and areas el- available to meet the crisis are inad- igible for such assistance. equate, and that assistance provided in section 502 of the Stafford Act would be § 206.40 Designation of affected areas appropriate, will FEMA recommend an and eligible assistance. emergency declaration to the Presi- (a) Eligible assistance. The Associate dent. Director has been delegated authority (d) Modified Federal emergency rec- to determine and designate the types of ommendation. The recommendation will assistance to be made available. The be based on a report which will indi- initial designations will usually be an- cate that an emergency does or does nounced in the declaration. Determina- not exist for which assistance under tions by the Associate Director of the section 502 of the Stafford Act would be types and extent of FEMA disaster as- appropriate. An emergency declaration sistance to be provided are based upon will not be recommended in situations findings whether the damage involved where the authority to respond or co- and its effects are of such severity and ordinate is within the jurisdiction of magnitude as to be beyond the re- one or more Federal agencies without a sponse capabilities of the State, the af- Presidential declaration. However, fected local governments, and other po- where there are significant unmet tential recipients of supplementary needs of sufficient severity and mag- Federal assistance. The Associate Di- nitude, not addressed by other assist- rector may authorize all, or only par- ance, which could appropriately be ad- ticular types of, supplementary Fed- dressed under the Stafford Act, the in- eral assistance requested by the Gov- volvement of other Federal agencies ernor.

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(b) Areas eligible to receive assistance. tion, applicable laws, regulations, and The Associate Director also has been the FEMA-State Agreement. delegated authority to designate the (b) Disaster Recovery Manager. The disaster-affected areas eligible for sup- Regional Director shall designate a plementary Federal assistance under DRM to exercise all the authority of the Stafford Act. These designations the Regional Director in a major dis- shall be published in the FEDERAL REG- aster or an emergency. ISTER. A disaster-affected area des- (c) State Coordinating Officer. Upon a ignated by the Associate Director in- declaration of a major disaster or of an cludes all local government jurisdic- emergency, the Governor of the af- tions within its boundaries. The Asso- fected State shall designate an SCO ciate Director may, based upon damage who shall coordinate State and local assessments in any given area, des- disaster assistance efforts with those of ignate all or only some of the areas re- the Federal Government. quested by the Governor for supple- (d) Governor’s Authorized Representa- mentary Federal assistance. tive. In the FEMA-State Agreement, (c) Requests for additional designations the Governor shall designate the GAR, after a declaration. After a declaration who shall administer Federal disaster by the President, the Governor, or the assistance programs on behalf of the GAR, may request that additional State and local governments and other areas or types of supplementary Fed- grant or loan recipients. The GAR is eral assistance be authorized by the responsible for the State compliance Associate Director. Such requests shall with the FEMA-State Agreement. be accompanied by appropriate verified assessments and commitments by § 206.42 Responsibilities of coordi- State and local governments to dem- nating officers. onstrate that the requested designations are justified and that the unmet (a) Following a declaration of a needs are beyond State and local capa- major disaster or an emergency, the bilities without supplementary Federal FCO shall: assistance. Additional assistance or (1) Make an initial appraisal of the areas added to the declaration will be types of assistance most urgently need- published in the FEDERAL REGISTER. ed; (d) Time limits to request. In order to (2) In coordination with the SCO, es- be considered, all supplemental re- tablish field offices and Disaster Appli- quests under paragraph (c) of this sec- cation Centers as necessary to coordi- tion must be submitted within 30 days nate and monitor assistance programs, from the termination date of the inci- disseminate information, accept appli- dent, or 30 days after the declaration, cations, and counsel individuals, fami- whichever is later. The 30-day period lies and businesses concerning avail- may be extended by the Associate Di- able assistance; rector provided that a written request (3) Coordinate the administration of is made by the appropriate State offi- relief, including activities of State and cial during this 30-day period. The re- local governments, activities of Fed- quest must include justification of the eral agencies, and those of the Amer- State’s inability to meet the deadline. ican Red Cross, the Salvation Army, the Mennonite Disaster Service, and § 206.41 Appointment of disaster offi- other voluntary relief organizations cials. which agree to operate under the FCO’s (a) Federal Coordinating Officer. Upon advice and direction; a declaration of a major disaster or of (4) Undertake appropriate action to an emergency by the President, the Di- make certain that all of the Federal rector, or in his absence, the Deputy agencies are carrying out their appro- Director, or alternately, the Associate priate disaster assistance roles under Director shall appoint an FCO who their own legislative authorities and shall initiate action immediately to as- operational policies; and sure that Federal assistance is pro- (5) Take other action, consistent vided in accordance with the declara- with the provisions of the Stafford Act,

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as necessary to assist citizens and pub- as this Agreement for the Presidential lic officials in promptly obtaining as- declaration has been signed, except sistance to which they are entitled. where it is deemed necessary by the (b) The SCO coordinates State and Regional Director to begin the process local disaster assistance efforts with of providing essential emergency serv- those of the Federal Government work- ices or housing assistance under the In- ing closely with the FCO. The SCO is dividuals and Households Program. the principal point of contact regard- (b) Terms and conditions. This Agree- ing coordination of State and local dis- ment describes the incident and the in- aster relief activities, and implementa- cident period for which assistance will tion of the State emergency plan. The be made available, the type and extent functions, responsibilities, and authori- of the Federal assistance to be made ties of the SCO are set forth in the available, and contains the commit- State emergency plan. It is the respon- ment of the State and local govern- sibility of the SCO to ensure that all ment(s) with respect to the amount of affected local jurisdictions are in- funds to be expended in alleviating formed of the declaration, the types of damage and suffering caused by the assistance authorized, and the areas el- major disaster or emergency. The igible to receive such assistance. Agreement also contains such other terms and conditions consistent with § 206.43 Emergency support teams. the declaration and the provisions of The Federal Coordinating Officer applicable laws, Executive Order and may activate emergency support regulations. teams, composed of Federal program (c) Provisions for modification. In the and support personnel, to be deployed event that the conditions stipulated in into an area affected by a major dis- the original Agreement are changed or aster or emergency. These emergency modified, such changes will be re- support teams assist the FCO in car- flected in properly executed amend- rying out his/her responsibilities under ments to the Agreement, which may be the Stafford Act and these regulations. signed by the GAR and the Regional Any Federal agency can be directed to Director or his/her designee for the detail personnel within the agency’s specified major disaster or emergency. administrative jurisdiction to tem- Amendments most often occur to close porary duty with the FCO. Each detail or amend the incident period, to add shall be without loss of seniority, pay, forms of assistance not originally au- or other employee status. thorized, or to designate additional areas eligible for assistance. § 206.44 FEMA-State Agreements. (d) In a modified declaration for a (a) General. Upon the declaration of a Federal emergency, a FEMA-State major disaster or an emergency, the Agreement may or may not be required Governor, acting for the State, and the based on the type of assistance being FEMA Regional Director or his/her des- provided. ignee, acting for the Federal Govern- ment, shall execute a FEMA-State [55 FR 2292, Jan. 23, 1990, as amended at 67 Agreement. The FEMA-State Agree- FR 61460, Sept. 30, 2002] ment states the understandings, commitments, and conditions for assist- § 206.45 Loans of non-Federal share. ance under which FEMA disaster as- (a) Conditions for making loans. At the sistance shall be provided. This Agree- request of the Governor, the Associate ment imposes binding obligations on Director may lend or advance to a FEMA, States, their local govern- State, either for its own use or for the ments, and private nonprofit organiza- use of public or private nonprofit appli- tions within the States in the form of cants for disaster assistance under the conditions for assistance which are le- Stafford Act, the portion of assistance gally enforceable. No FEMA funding for which the State or other eligible will be authorized or provided to any disaster assistance applicant is respon- grantees or other recipients, nor will sible under the cost-sharing provisions direct Federal assistance be authorized of the Stafford Act in any case in by mission assignment, until such time which:

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(1) The State or other eligible dis- tion or for any emergency declaration aster assistance applicant is unable to is denied, the Governor may appeal the assume their financial responsibility decision. An appeal must be made with- under such cost sharing provisions: in 30 days after the date of the letter (i) As a result of concurrent, multiple denying the request. This one-time re- major disasters in a jurisdiction, or quest for reconsideration, along with (ii) After incurring extraordinary appropriate additional information, is costs as a result of a particular dis- submitted to the President through the aster; appropriate Regional Director. The (2) The damages caused by such dis- processing of this request is similar to asters or disaster are so overwhelming the initial request. and severe that it is not possible for (b) Denial of types of assistance or the State or other eligible disaster as- areas. In those instances when the type sistance applicant to immediately as- of assistance or certain areas requested sume their financial responsibility by the Governor are not designated or under the Act; and authorized, the Governor, or the GAR, (3) The State and the other eligible may appeal the decision. An appeal disaster applicants are not delinquent must be submitted in writing within 30 in payment of any debts to FEMA in- days of the date of the letter denying curred as a result of Presidentially de- the request. This one-time request for clared major disasters or emergencies. reconsideration, along with justifica- (b) Repayment of loans. Any loan tion and/or additional information, is made to a State under paragraph (a) of sent to the Associate Director through this section must be repaid to the the appropriate Regional Director. United States. The Governor must in- (c) Denial of advance of non-Federal clude a repayment schedule as part of share. In those instances where the the request for advance. Governor’s request for an advance is (1) The State shall repay the loan denied, the Governor may appeal the (the principal disbursed plus interest) decision. An appeal must be submitted in accordance with the repayment in writing within 30 days of the date of schedule approved by the Associate Di- the letter denying the request. This rector. one-time request for reconsideration, (2) If the State fails to make pay- along with justification and/or addi- ments in accordance with the approved tional information, is sent to the Asso- repayment schedule, FEMA will offset ciate Director through the appropriate delinquent amounts against the cur- Regional Director. rent, prior, or any subsequent disas- (d) Extension of time to appeal. The 30- ters, or monies due the State under day period referred to in paragraphs other FEMA programs, in accordance (a), (b), or (c) of this section may be ex- with the established Claims Collection tended by the Associate Director pro- procedures. vided that a written request for such (c) Interest. Loans or advances under an extension, citing reasons for the paragraph (a) of this section shall bear delay, is made during this 30-day pe- interest at a rate determined by the riod, and if the Associate Director Secretary of the Treasury, taking into agrees that there is a legitimate basis consideration the current market for extension of the 30-day period. Only yields on outstanding marketable obli- the Governor may request a time ex- gations of the United States with re- tension for appeals covered in para- maining periods to maturity com- graphs (a) and (c) of this section. The parable to the reimbursement period of Governor, or the GAR if one has been the loan or advance. Simple interest named, may submit the time extension will be computed from the date of the request for appeals covered in para- disbursement of each drawdown of the graph (b) of this section. loan/advance by the State based on 365 days/year. § 206.47 Cost-share adjustments. (a) We pay seventy-five percent (75%) § 206.46 Appeals. of the eligible cost of permanent re- (a) Denial of declaration request. When storative work under section 406 of the a request for a major disaster declara- Stafford Act and for emergency work

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under section 403 and section 407 of the ate the need for assistance under the Stafford Act, unless the Federal share Public Assistance Program. is increased under this section. (1) Estimated cost of the assistance. We (b) We recommend an increase in the evaluate the estimated cost of Federal Federal cost share from seventy-five and nonfederal public assistance percent (75%) to not more than ninety against the statewide population to percent (90%) of the eligible cost of give some measure of the per capita permanent work under section 406 and impact within the State. We use a fig- of emergency work under section 403 ure of $1 per capita as an indicator that and section 407 whenever a disaster is the disaster is of such size that it so extraordinary that actual Federal might warrant Federal assistance, and obligations under the Stafford Act, ex- adjust this figure annually based on cluding FEMA administrative cost, meet or exceed a qualifying threshold the Consumer Price Index for all Urban of: Consumers. We are establishing a min- (1) Beginning in 1999 and effective for imum threshold of $1 million in public disasters declared on or after May 21, assistance damages per disaster in the 1999, $75 per capita of State population; belief that we can reasonably expect (2) Effective for disasters declared even the lowest population States to after January 1, 2000, and through De- cover this level of public assistance cember 31, 2000, $85 per capita of State damage. population; (2) Localized impacts. We evaluate the (3) Effective for disasters declared impact of the disaster at the county after January 1, 2001, $100 per capita of and local government level, as well as State population; and, impacts at the American Indian and (4) Effective for disasters declared Alaskan Native Tribal Government lev- after January 1, 2002 and for later els, because at times there are extraor- years, $100 per capita of State popu- dinary concentrations of damages that lation, adjusted annually for inflation might warrant Federal assistance even using the Consumer Price Index for All if the statewide per capita is not met. Urban Consumers published annually This is particularly true where critical by the Department of Labor. facilities are involved or where local- (c) When we determine whether to ized per capita impacts might be ex- recommend a cost-share adjustment we tremely high. For example, we have at consider the impact of major disaster times seen localized damages in the declarations in the State during the tens or even hundreds of dollars per preceding twelve-month period. capita though the statewide per capita (d) If warranted by the needs of the impact was low. disaster, we recommend up to one hundred percent (100%) Federal funding for (3) Insurance coverage in force. We emergency work under section 403 and consider the amount of insurance cov- section 407, including direct Federal as- erage that is in force or should have sistance, for a limited period in the ini- been in force as required by law and tial days of the disaster irrespective of regulation at the time of the disaster, the per capita impact. and reduce the amount of anticipated assistance by that amount. [64 FR 19498, Apr. 21, 1999] (4) Hazard mitigation. To recognize § 206.48 Factors considered when eval- and encourage mitigation, we consider uating a Governor’s request for a the extent to which State and local major disaster declaration. government measures contributed to When we review a Governor’s request the reduction of disaster damages for for major disaster assistance under the the disaster under consideration. For Stafford Act, these are the primary example, if a State can demonstrate in factors in making a recommendation its disaster request that a Statewide to the President whether assistance is building code or other mitigation warranted. We consider other relevant measures are likely to have reduced information as well. the damages from a particular disaster, (a) Public Assistance Program. We we consider that in the evaluation of evaluate the following factors to evalu- the request. This could be especially

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significant in those disasters where, be- (i) Large numbers of injuries and cause of mitigation, the estimated pub- deaths; lic assistance damages fell below the (ii) Large scale disruption of normal per capita indicator. community functions and services; and (5) Recent multiple disasters. We look (iii) Emergency needs such as ex- at the disaster history within the last tended or widespread loss of power or twelve-month period to evaluate better water. the overall impact on the State or lo- (3) Special populations. We consider cality. We consider declarations under the Stafford Act as well as declarations whether special populations, such as by the Governor and the extent to low-income, the elderly, or the unem- which the State has spent its own ployed are affected, and whether they funds. may have a greater need for assistance. (6) Programs of other Federal assist- We also consider the effect on Amer- ance. We also consider programs of ican Indian and Alaskan Native Tribal other Federal agencies because at populations in the event that there are times their programs of assistance any unique needs for people in these might more appropriately meet the governmental entities. needs created by the disaster. (4) Voluntary agency assistance. We (b) Factors for the Individual Assist- consider the extent to which voluntary ance Program. We consider the fol- agencies and State or local programs lowing factors to measure the severity, can meet the needs of the disaster vic- magnitude and impact of the disaster tims. and to evaluate the need for assistance (5) Insurance. We consider the to individuals under the Stafford Act. amount of insurance coverage because, (1) Concentration of damages. We by law, Federal disaster assistance can- evaluate the concentrations of damages to individuals. High concentra- not duplicate insurance coverage. tions of damages generally indicate a (6) Average amount of individual assist- greater need for Federal assistance ance by State. There is no set threshold than widespread and scattered damages for recommending Individual Assist- throughout a State. ance, but the following averages may (2) Trauma. We consider the degree of prove useful to States and voluntary trauma to a State and to communities. agencies as they develop plans and pro- Some of the conditions that might grams to meet the needs of disaster cause trauma are: victims.

AVERAGE AMOUNT OF ASSISTANCE PER DISASTER [July 1994 to July 1999]

Small states Medium states Large states (under 2 million (2–10 million (over 10 million pop.) pop.) pop.)

Average Population (1990 census data) ...... 1,000,057 ...... 4,713,548 ...... 15,522,791 Number of Disaster Housing Applications Approved ...... 1,507 ...... 2,747 ...... 4,679 Number of Homes Estimated Major Damage/Destroyed ...... 173 ...... 582 ...... 801 Dollar Amount of Housing Assistance ...... $2.8 million $4.6 million $9.5 million Number of Individual and Family Grant Applications Approved ...... 495 ...... 1,377 ...... 2,071 Dollar Amount of Individual and Family Grant Assistance ...... 1.1 million ...... 2.9 million ...... 4.6 million Disaster Housing/IFG Combined Assistance ...... 3.9 million ...... 7.5 million ...... 14.1 million

NOTE: The high 3 and low 3 disasters, based Small Size States (under 2 million population, on Disaster Housing Applications, are not listed in order of 1990 population): Wyoming, considered in the averages. Number of Dam- Alaska, Vermont, District of Columbia, aged/Destroyed Homes is estimated based on North Dakota, Delaware, South Dakota, the number of owner-occupants who qualify Montana, Rhode Island, Idaho, Hawaii, New for Eligible Emergency Rental Resources. Hampshire, Nevada, Maine, New Mexico, Ne- Data source is FEMA’s National Processing braska, Utah, West Virginia. U.S. Virgin Is- Service Centers. Data are only available lands and all Pacific Island dependencies. from July 1994 to the present. Medium Size States (2–10 million population, listed in order of 1990 population): Arkansas,

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Kansas, Mississippi, Iowa, Oregon, Okla- (5) Management, control, and reduc- homa, Connecticut, Colorado, South Caro- tion of immediate threats to public lina, Arizona, Kentucky, Alabama, Lou- health and safety; isiana, Minnesota, Maryland, Washington, (d) Provide emergency assistance Tennessee, Wisconsin, Missouri, Indiana, Massachusetts, Virginia, Georgia, North under the Stafford Act through Federal Carolina, New Jersey, Michigan. Puerto agencies; Rico. (e) Remove debris in accordance with Large Size States (over 10 million population, the terms and conditions of section 407 listed in order of 1990 population): Ohio, Illi- of the Stafford Act; nois, Pennsylvania, Florida, Texas, New (f) Provide assistance in accordance York, California. with section 408 of the Stafford Act.; [64 FR 47698, Sept. 1, 1999] and (g) Assist State and local govern- §§ 206.49–206.60 [Reserved] ments in the distribution of medicine, food, and other consumable supplies, Subpart C—Emergency and emergency assistance. Assistance [55 FR 2296, Jan. 23, 1990, as amended at 67 FR 61460, Sept. 30, 2002] SOURCE: 55 FR 2296, Jan. 23, 1990, unless otherwise noted. § 206.63 Provision of assistance. Assistance authorized by an emer- § 206.61 Purpose. gency declaration is limited to imme- The purpose of this subpart is to diate and short-term assistance, essen- identify the forms of assistance which tial to save lives, to protect property may be made available under an emer- and public health and safety, or to less- gency declaration. en or avert the threat of a catastrophe.

§ 206.62 Available assistance. § 206.64 Coordination of assistance. In any emergency declaration, the After an emergency declaration by Associate Director or Regional Direc- the President, all Federal agencies, tor may provide assistance, as follows: voluntary organizations, and State and (a) Direct any Federal agency, with local governments providing assistance or without reimbursement, to utilize shall operate under the coordination of its authorities and the resources grant- the Federal Coordinating Officer. ed to it under Federal law (including personnel, equipment, supplies, facili- § 206.65 Cost sharing. ties, and managerial, technical and ad- The Federal share for assistance pro- visory services) in support of State and vided under this title shall not be less local emergency assistance efforts to than 75 percent of the eligible costs. save lives, protect property and public health and safety, and lessen or avert § 206.66 Limitation on expenditures. the threat of a catastrophe; Total assistance provided in any (b) Coordinate all disaster relief as- given emergency declaration may not sistance (including voluntary assist- exceed $5,000,000, except when it is de- ance) provided by Federal agencies, termined by the Associate Director private organizations, and State and that: local governments; (a) Continued emergency assistance (c) Provide technical and advisory as- is immediately required; sistance to affected State and local (b) There is a continuing and imme- governments for: diate risk to lives, property, public (1) The performance of essential com- health and safety; and munity services; (c) Necessary assistance will not oth- (2) Issuance of warnings of risks or erwise be provided on a timely basis. hazards; (3) Public health and safety informa- § 206.67 Requirement when limitation tion, including dissemination of such is exceeded. information; Whenever the limitation described in (4) Provision of health and safety § 206.66 is exceeded, the Director must measures; and report to the Congress on the nature

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and extent of continuing emergency as- (ii) Is within reasonable commuting sistance requirements and shall pro- distance of work, school, or agricul- pose additional legislation if necessary. tural activities which provide over 25% of the household income. §§ 206.68–206.100 [Reserved] (iii) Is within the financial ability of the occupant in the realization of a Subpart D—Federal Assistance to permanent housing plan. Individuals and Households (2) Effective date of assistance means the date the eligible applicant received § 206.101 Temporary housing assist- temporary housing assistance but, ance for emergencies and major dis- where applicable, only after appro- asters declared on or before Octo- priate insurance benefits are ex- ber 14, 2002. hausted. (a) Purpose. This section prescribes (3) Essential living area means that the policy to be followed by the Fed- area of the residence essential to nor- eral Government or any other organi- mal living, i.e., kitchen, one bathroom, zation when implementing section 408 dining area, living room, entrances and of the Stafford Act for Presidentially- exits, and essential sleeping areas. It declared emergencies and major disas- does not include family rooms, guest ters declared on or before October 14, rooms, garages, or other nonessential 2002 (Note that the reference to section areas, unless hazards exist in these 408 of the Stafford Act refers to prior areas which impact the safety of the legislation amended by the Disaster essential living area. Mitigation Act 2000). (4) Fair market rent means a reason- (b) Program intent. Assistance under able amount to pay in the local area this program is made available to ap- for the size and type of accommoda- plicants who require temporary hous- tions which meets the applicant’s ing as a result of a major disaster or needs. emergency that is declared by the (5) Financial ability is the determina- President. Eligibility for assistance is tion of the occupant’s ability to pay based on need created by disaster-rehousing costs. The determination is lated unlivability of a primary resi- based upon the amount paid for hous- dence or other disaster-related dis- ing before the disaster, provided the placement, combined with a lack of household income has not changed sub- adequate insurance coverage. Eligible sequent to or as a result of the disaster applicants may be paid for authorized or 25 percent of gross post disaster in- accommodations and/or repairs. In the come if the household income changed interest of assisting the greatest num- as a result of the disaster. When com- ber of people in the shortest possible puting financial ability, extreme or un- time, applicants who are able to do so usual financial circumstances may be will be encouraged to make their own considered by the Regional Director. arrangements for temporary housing. (6) Household means all residents of Although numerous instances of minor the predisaster residence who request damage may cause some inconvenience temporary housing assistance, plus any to the applicant, the determining eligi- additions during the temporary hous- bility factor must be the livability of ing period, such as infants, spouses, or the primary residence. FEMA has also part-time residents who were not determined that it is reasonable to ex- present at the time of the disaster but pect applicants or their landlords to who are expected to return during the make some repairs of a minor nature. temporary housing period. Temporary housing will normally con- (7) Housing costs means shelter rent sist of a check to cover housing-related and mortgage payments including prin- costs wherever possible. cipal, interest, real estate taxes, real (c) Definitions. property insurance, and utility costs, (1) Adequate alternate housing means where appropriate. housing that: (8) Occupant means an eligible appli- (i) Accommodates the needs of the cant residing in temporary housing occupants. provided under this section.

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(9) Owner-occupied means that the with agency procedures for debt collec- residence is occupied by: the legal tion. owner; a person who does not hold for- (e) Applications— (1) Application pe- mal title to the residence and pays no riod. The standard FEMA application rent but is responsible for the payment period is the 60 days following the date of taxes, or maintenance of the resi- the President declares an incident a dence; or a person who has lifetime oc- major disaster or an emergency. The cupancy rights with formal title vested Regional Director may, however, ex- in another. tend the application period, when we (10) Primary residence means the anticipate that we need more time to dwelling where the applicant normally collect applications from the affected lives during the major portion of the population or to establish the same ap- calendar year, a dwelling which is re- plication deadline for contiguous Coun- quired because of proximity to employ- ties or States. After the application pe- ment, or to agricultural activities as riod has ended, FEMA will accept and referenced in paragraph (c)(1)(ii) of this process applications for an additional section. 60 days only from persons who can pro- (d) Duplication of benefits—(1) Require- vide an acceptable explanation (and ment to avoid duplication. Temporary documentation to substantiate their housing assistance shall not be pro- explanation) for why they were not vided to an applicant if such assistance able to contact FEMA before the appli- has been provided by any other source. cation period ended. If any State or local government or (2) Household composition. Members of voluntary agency has provided tem- a household shall be included on a sin- porary housing, the assistance under gle application and be provided one this section begins at the expiration of temporary housing residence unless it such assistance, and may continue for is determined by the Regional Director that the size of the household requires a period not to exceed l8 months from that more than one residence be pro- the date of declaration, provided the vided. criteria for continued assistance in (f) General eligibility guidelines. Tem- paragraph (k)(3) of this section are porary housing assistance may be made met. If it is determined that temporary available to those applicants who, as a housing assistance will be provided result of a major disaster or emergency under this section, notification shall be declared by the President, are qualified given those agencies which have the for such assistance. potential for duplicating such assist- (1) Conditions of eligibility. Temporary ance. In the instance of insured appli- housing assistance may be provided cants, temporary housing assistance only when both of the following condi- shall be provided only when: tions are met: (i) Payment of the applicable benefits (i) The applicant’s primary residence has been significantly delayed; has been made unlivable or the appli- (ii) Applicable benefits have been ex- cant has been displaced as the result of hausted; a major disaster or emergency because: (iii) Applicable benefits are insuffi- (A) The residence has been destroyed, cient to cover the temporary housing essential utility service has been inter- need; or rupted, or the essential living area has (iv) Housing is not available on the been damaged as a result of the dis- private market. aster to such an extent as to constitute (2) Recovery of funds. Prior to provi- a serious health or safety hazard which sion of assistance, the applicant must did not exist prior to the disaster. The agree to repay to FEMA from insur- Regional Director shall prepare addi- ance proceeds or recoveries from any tional guidelines when necessary to re- other source an amount equivalent to spond to a particular disaster; the value of the temporary housing as- (B) The residence has been made in- sistance provided. In no event shall the accessible as a result of the incident to amount repaid to FEMA exceed the the extent that the applicant cannot amount recovered by the applicant. All reasonably be expected to gain entry claims shall be collected in accordance due to the disruption or destruction of

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transportation routes, other impedi- (g) Forms of Temporary Housing Assist- ments to access, or restrictions placed ance. All proceeds received or receiv- on movement by a responsible official able by the applicant under § 206.101 due to continued health and safety shall be exempt from garnishment, sei- problems; zure, encumbrance, levy, execution, (C) The owner of the applicant’s resi- pledge, attachment, release, or waiver. dence requires the residence to meet No rights under this provision are as- their personal needs because the own- signable or transferable. er’s predisaster residence was made (1) Temporary Housing Assistance is unlivable as a result of the disaster; normally provided in the form of a (D) Financial hardship resulting from check to cover the cost of rent or es- the disaster has led to eviction or dis- sential home repairs. The exceptions to possession; or this are when existing rental resources (E) Other circumstances resulting are not available and repairs to the from the disaster, as determined by the home will not make it livable in a rea- Regional Director, prevent the appli- sonable period of time, or when the eli- cant from occupying their predisaster gible applicant is unable to physically primary residence. leave the home due to the need to tend (ii) Insured applicants have made crops or livestock. every reasonable effort to secure insur- (i) Government-owned, private, and ance benefits, and the insured has commercial properties. When an eligible agreed to repay FEMA from whatever applicant is unable to obtain an avail- insurance proceeds are later received, able temporary housing unit, FEMA pursuant to paragraph (d)(2) of this sec- may enter into a leasing agreement for tion. the eligible applicant. Rent payments (2) Conditions of ineligibility. Except as shall be in accordance with the fair provided for in section 408(b), Tem- market rent (FMR) rates established porary Housing Assistance shall not be for each operation for the type and size provided: residence. (i) To an applicant who is displaced from other than their primary resi- (ii) Transient accommodations. Imme- dence; or diately following a Presidentially de- (ii) When the residence in question is clared major disaster or emergency, livable, i.e., only minor damage exists disaster victims are expected to stay and it can reasonably be expected to be with family or friends without FEMA repaired by the applicant/owner or the assistance, or to make use of mass landlord; or shelters to the fullest extent possible (iii) When the applicant owns a sec- for short-term housing. Transient ac- ondary or vacation residence, or unoc- commodations may be provided when cupied rental property which meets individual circumstances warrant such their temporary housing needs; or assistance for only a short period of (iv) To an applicant who has ade- time or pending provision of other tem- quate rent-free housing accommoda- porary housing resources. Transient tions; or accommodations may be provided for (v) To an applicant who has adequate up to 30 days unless this period is ex- insurance coverage and there is no intended by the Regional Director. Au- dication that benefits will be delayed; thorized expenditures for transient ac- or commodations shall be restricted to (vi) When a late application is not ap- the rental cost including utilities ex- proved for processing by the Regional cept for those which are separately me- Director; or tered. Payment for food, telephone, or (vii) To an applicant who evacuated other similar services is not authorized the residence in response to official under this section. warnings solely as a precautionary (2) Mobile homes, travel trailers, and measure, and who is able to return to other manufactured housing units. the residence immediately after the in- Government-owned or privately owned cident (i.e., the applicant is not other- mobile homes, travel trailers, and wise eligible for temporary housing as- other manufactured housing units may sistance). be placed on commercial, private, or

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group sites. The placement must com- to or be provided on behalf of eligible ply with applicable State and local applicants who, as a result of a major codes and ordinances as well as disaster or emergency, have received FEMA’S regulations at 44 CFR part 9, written notice of dispossession or evic- Floodplain Management and Protec- tion from their primary residence by tion of Wetlands, and the regulations foreclosure of any mortgage or lien, at 44 CFR part 10, Environmental Con- cancellation of any contract of sale, or siderations. termination of any lease entered into (i) A commercial site is a site cus- prior to the disaster. Written notice, tomarily leased for a fee because it is for the purpose of this paragraph, fully equipped to accommodate a hous- means a communication in writing by ing unit. In accordance with section a landlord, mortgage holder, or other 408(a)(2)(B), the Associate Director has party authorized under State law to determined that leasing commercial file such notice. The purpose of such sites at Federal expense is in the public notice is to notify a person of impend- interest. When the Regional Director ing termination of a lease, foreclosure determines that upgrading of commer- of a mortgage or lien, or cancellation cial sites or installation of utilities on of any contract of sale, which would re- such sites will provide more cost-effec- sult in the person’s dispossession or tive, timely, and suitable temporary eviction. Applications for this type of housing than other types of resources, assistance may be filed for up to 6 they may authorize such action at Fed- months following the date of declara- eral expense. tion. This assistance may be provided (ii) A private site is a site provided or for a period not to exceed 18 months or obtained by the applicant at no cost to for the duration of the period of finan- the Federal Government. Also in ac- cial hardship, as determined by the Re- cordance with section 408(a)(2)(B), the gional Director, whichever is less. The Associate Director has determined that location of the residence of an appli- the cost of installation or repairs of es- cant for assistance under this section sential utilities on private sites is au- shall not be a consideration of eligi- thorized at Federal expense when such bility. actions will provide more cost-effec- (4) Home repairs. Repairs may be au- tive, timely, and suitable temporary thorized to quickly repair or restore to housing than other types of resources. a livable condition that portion of or (iii) A group site is a site which ac- areas affecting the essential living area commodates two or more units. In ac- of, or private access to, an owner-occu- cordance with section 408(a)(2)(A), loca- pied primary residence which was dam- tions for group sites shall be provided aged as a result of the disaster. Instal- by State or local government complete lation of utilities or conveniences not with utilities. However, the Associate available in the residence prior to the Director may authorize development of disaster shall not be provided. How- group sites, including installation of ever, repairs which are authorized shall essential utilities, by the Federal Gov- conform to applicable local and/or ernment, based on a recommendation State building codes; upgrading of ex- from the Regional Director; provided, isting damaged utilities may be au- however, that the Federal expense is thorized when required by these codes. limited to 75 percent of the cost of con- (i) Options for repairs. Eligible appli- struction and development (including cants approved for repairs may be as- installation of utilities). In accordance sisted through one or a combination of with section 408(a)(4) of the Stafford the following methods: Act, the State or local government (A) Cash payment. Payment shall be shall pay any cost which is not paid for limited to the reasonable costs for the from the Federal share, including long- repairs and replacements in the local- term site maintenance such as snow re- ity, as determined by the Regional Di- moval, street repairs and other services rector. This will be the method nor- of a governmental nature. mally used, unless unusual cir- (3) Temporary mortgage and rental pay- cumstances warrant the methods listed ments. Assistance in the form of mort- under paragraph (g)(4), (i) (B) or (C) of gage or rental payments may be paid this section.

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(B) Provision of materials and re- when the availability of necessary placement items. parts or components makes repair im- (C) Government awarded repair con- possible; tracts when authorized by the Asso- (D) Repairs to or replacement of es- ciate Director. sential components of the fuel system (ii) Feasibility. Repairs may be pro- to provide for cooking; vided to those eligible applicants: (E) Pumping and cleaning of the sep- (A) Who are owner-occupants of the tic system, repairs to or replacement of residence to be made livable; the tank, drainfield, or repairs to sewer (B) Whose residence can be made liv- lines; able by repairs to the essential living (F) Flushing and/or purifying the area within 30 days following the feasi- water well, and repairs to or replace- bility determination. The Regional Di- ment of the pump, controls, tank, and rector may extend this period for ex- pipes; tenuating circumstances by deter- (G) Repairs to or replacement of ex- mining that this type of assistance is terior doors, repair of windows and/or still more cost effective, timely and screens needed for health purposes; otherwise suitable than other forms for (H) Repairs to the roof, when the temporary housing; and damages affect the essential living (C) Whose residence can be made liv- area; able by repairs to the essential living (I) Repairs to interior floors, when area, the cost of which do not exceed severe buckling or deterioration cre- the dollar limitations established by ates a serious safety hazard; the Associate Director. The Regional (J) Blocking, leveling, and anchoring Director may, on a case-by-case basis, of a mobile home; and reconnecting waive the dollar limitations when re- and/or resetting mobile home sewer, pairs are more cost effective and appro- water, electrical and fuel lines, and priate than other forms of housing as- tanks; sistance or when extenuating cir- (K) Emergency repairs to private ac- cumstances warrant. cess routes, limited to those repairs (iii) Scope of work. The type of repair that meet the minimum safety stand- or replacement authorized may vary ards and using the most economical depending upon the nature of the dis- materials available. Such repairs are aster. Items will be repaired where fea- provided on a one-time basis when no sible or replaced only when necessary alternative access facilities are imme- to insure the safety or health of the oc- diately available and when the repairs cupant. Replacement items shall be of are more cost effective, timely or oth- average quality, size, and capacity tak- erwise suitable than other forms of ing into consideration the needs of the temporary housing. occupant. Repairs shall be disaster re- (L) Repairs to the foundation piers, lated and shall be limited to: walls or footings when the damages af- (A) Repairs to the plumbing system, fect the structural integrity of the es- including repairs to or replacement of sential living area; fixtures, providing service to the kitch- (M) Repairs to the stove and refrig- en and one bathroom; erator, when feasible; and (B) Repairs to the electrical system (N) Elimination of other health and providing service to essential living safety hazards or performance of essen- areas, including repairs to or replace- tial repairs which are authorized by ment of essential fixtures; the Regional Director as not available (C) Repairs to the heating unit, in- through emergency services provided cluding repairs to duct work, vents, by voluntary or community agencies, and integral fuel and electrical sys- and cannot reasonably be expected to tems. If repair or replacement through be completed on a timely basis by the other forms of assistance cannot be ac- occupant without FEMA assistance. complished before the start of the sea- (iv) Requirements of the Flood Dis- son requiring heat, home repairs may aster Protection Act. FEMA has deter- be authorized by the Regional Director mined that flood insurance purchase when an inspection shows that the unit requirements need not be imposed as a has been damaged beyond repair, or condition of receiving assistance under

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paragraph (g)(4) of this section. Repair (k) Duration of assistance—(1) Com- recipients will normally receive assist- mencement. Temporary housing assistance for further repairs from other pro- ance may be provided as of the date of grams which will impose the purchase the incident of the major disaster or and maintenance requirements. Home emergency as specified in the FEDERAL repairs may not be provided in Zones A REGISTER notice and may continue for or V of a sanctioned or suspended com- 18 months from the date of declaration. munity except for items that are not An effective date of assistance shall be covered by flood insurance. established for each applicant. (h) Appropriate form of temporary (2) Continued assistance. Predisaster housing. The form of temporary hous- renters normally shall be provided no ing provided should not exceed occu- more than 1 month of assistance unless pants’ minimum requirements, taking the Regional Director determines that into consideration items such as time- continued assistance is warranted in ly availability, cost effectiveness, per- accordance with paragraph (k)(3) of manent housing plans, special needs this section. All other occupants of (handicaps, the location of crops and temporary housing shall be certified el- livestock, etc.) of the occupants, and igible for continued assistance in incre- the requirements of FEMA’S floodplain ments not to exceed 3 months. Recer- management regulations at 44 CFR tification of eligibility for continued part 9. An eligible applicant shall re- assistance shall be in accordance with paragraph (k)(3) of this section, taking ceive one form of temporary housing, into consideration the occupant’s per- except for transient accommodations manent housing plan. A realistic per- or when provision of an additional form manent housing plan shall be estab- is in the best interest of the Govern- lished for each occupant requesting ad- ment. An eligible applicant is expected ditional assistance no later than at the to accept the first offer of temporary time of the first recertification. housing; unwarranted refusal shall re- (3) Criteria for continued assistance. A sult in forfeiture of temporary housing temporary housing occupant shall assistance. Existing rental resources make every effort to obtain and occupy and home repairs shall be utilized to permanent housing at the earliest pos- the fullest extent practicable prior to sible time. A temporary housing occu- provision of government-owned mobile pant will be required to provide re- homes. ceipts documenting disaster related (i) Utility costs and security deposits. housing costs and shall be eligible for All utility costs shall be the responsi- continued assistance when: bility of the occupant except where (i) Adequate alternate housing is not utility services are not metered sepa- available; rately and are therefore a part of the (ii) The permanent housing plan has rental charge. Utility use charges and not been realized through no fault of deposits shall always be the occupants the occupant; or responsibility. When authorized by the (iii) In the case of FEMA-owner Regional Director, the Federal Govern- leases, the occupant is in compliance ment may pay security deposits; how- with the terms of the lease/rental ever, the owner or occupant shall reim- agreement. burse the full amount of the security (l) Period of assistance. Provided the deposit to the Federal Government be- occupant is eligible for continued as- fore or at the time that the temporary sistance, assistance shall be provided housing assistance is terminated. for a period not to exceed 18 months (j) Furniture. An allowance for essen- from the declaration date. tial furniture may be provided to occu- (m) Appeals. Occupants shall have the pants when such assistance is required right to appeal a program determina- to occupy the primary or temporary tion in accordance with the following: housing residence. However, loss of fur- (1) An applicant declared ineligible niture does not in and of itself con- for temporary housing assistance, an stitute eligibility for temporary hous- applicant whose application has been ing assistance. Luxury items shall not cancelled for cause, an applicant whose be provided. application has been refused because of

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late filing, and an occupant who re- (A) Notification to occupant. Written ceived a direct housing payment but is notice shall be given by FEMA to the not eligible for continued assistance in occupant(s) at least 15 days prior to the accordance with paragraph (k) of this proposed termination of assistance. section, shall have the right to dispute This notice shall specify: the reasons such a determination within 60 cal- for termination of assistance/occu- endar days following notification of pancy; the date of termination, which such action. The Regional Director shall be not less than 15 days after re- shall reconsider the original decision ceipt of the notice; the administrative within 15 calendar days after its re- procedure available to the occupant if ceipt. The appellant shall be given a they wish to dispute the action; and written notice of the disposition of the the occupant’s liability after the ter- dispute. The decision of the Regional mination date for additional charges. Director is final. (B) Filing of appeal. If the occupant (2) An occupant who has been noti- desires to dispute the termination, fied that his/her request to purchase a upon receipt of the written notice spec- mobile home or manufactured housing ified in paragraph (m)(2)(i) of this sec- unit or that a request for an adjust- tion, he/she shall present an appeal in ment to the sales price has been denied shall have the right to dispute such a writing to the appropriate office in per- determination within 60 business days son or by mail within 60 days from the after receipt of such notice. The Re- date of the termination notice. The ap- gional Director shall reconsider the peal must be signed by the occupant original decision within 15 calendar and state the reasons why the assist- days after receipt of the appeal. The ance or occupancy should not be termi- appellant shall receive written notice nated. If a hearing is desired, the ap- of the disposition of the dispute. The peal should so state. decision of the Regional Director is (C) Response to appeal. If a hearing final. pursuant to paragraph (m)(2)(ii) of this (3) Termination of assistance pro- section has not been requested, the oc- vided through a FEMA lease agreement cupant has waived the right to a hear- shall be initiated with a 15-day written ing. The appropriate program official notice after which the occupant shall shall deliver or mail a written response be liable for such additional charges as to the occupant within 5 business days are deemed appropriate by the Re- after the receipt of the appeal. gional Director including, but not lim- (D) Request for hearing. If the occu- ited to, the fair market rental for the pant requests a hearing pursuant to temporary housing residence. paragraph (m)(2)(ii) of this section, (i) Grounds for termination. Tem- FEMA shall schedule a hearing date porary housing assistance may be ter- within 10 business days from the re- minated for reasons including, but not ceipt of the appeal, at a time and place limited to the following: reasonably convenient to the occupant, (A) Adequate alternate housing is who shall be notified promptly thereof available to the occupant(s); in writing. The notice of hearing shall (B) The temporary housing assist- specify the procedure governing the ance was obtained either through mis- hearing. representation or fraud; or (E) Hearing—(1) Hearing officer. The (C) Failure to comply with any term hearing shall be conducted by a Hear- of the lease/rental agreement. ing Officer, who shall be designated by (ii) Termination procedures. These pro- the Regional Director, and who shall cedures shall be utilized in all in- not have been involved with the deci- stances except when a State is admin- sion to terminate the occupant’s tem- istering the Temporary Housing Assist- porary housing assistance, nor be a ance program. States shall be subject subordinate of any individual who was to their own procedures provided they so involved. afford the occupant(s) with due process safeguards described in paragraph (2) Due process. The occupant shall be (m)(2)(v)(B) of this section. afforded a fair hearing and provided the

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basic safeguards of due process, includ- tion shall be taken and, if suit is ing cross-examination of the respon- brought, the occupant may be required sible official(s), access to the docu- to pay court costs and attorney fees. ments on which FEMA is relying, the (2) If the occupant is required to give right to counsel, the right to present a specific number of days’ notice which evidence, and the right to a written de- exceeds the number of days in the ter- cision. mination notice, the Regional Director (3) Failure to appear. If an occupant may approve the payment of rent for fails to appear at a hearing, the Hear- this period of time if requested by the ing Officer may make a determination occupant. that the occupant has waived the right (n) Disposition of temporary housing to a hearing, or may, for good cause units—(1) Acquisition. The Associate Di- shown, postpone the hearing for no rector may purchase mobile homes or more than 5 business days. other manufactured housing units for (4) Proof. At the hearing, the occu- those who require temporary housing. pant must first attempt to establish After such temporary housing is va- that continued assistance is appro- cated, it shall be returned to one of the priate; thereafter, FEMA must sustain FEMA-operated Strategic Storage Cen- the burden of proof in justifying that ters for refurbishment and storage termination of assistance is appro- until needed in a subsequent major dis- priate. The occupant shall have the aster or emergency. When returning right to present evidence and argu- the unit to a Strategic Storage Center ments in support of their complaint, to is not feasible or cost effective, the As- controvert evidence relied on by sociate Director may prescribe a dif- FEMA, and to cross examine all wit- ferent method of disposition in accord- nesses on whose testimony or informa- ance with applicable Federal statutes tion FEMA relies. The hearing shall be and regulations. conducted by the Hearing Officer, and (2) Sales—(i) Eligibility. When ade- any evidence pertinent to the facts and quate alternate housing is not avail- issues raised may be received without regard to its admissibility under rules able, the Regional Director shall make of evidence employed in formal judicial available for sale directly to a tem- proceedings. porary housing occupant(s) any mobile home or manufactured housing unit ac- (F) Decision. The decision of the Hearing Officer shall be based solely quired by purchase, in accordance with upon applicable Federal and State law, the following: and FEMA regulations and require- (A) The unit is to be used as a pri- ments promulgated thereunder. The mary residence; Hearing Officer shall prepare a written (B) The purchaser has a site that decision setting forth a statement of complies with local codes and ordi- findings and conclusions together with nances as well as FEMA’s floodplain the reasons therefor, concerning all management regulations at 44 CFR material issues raised by the complain- part 9 (in particular § 9.13(e)); and ant within 5 business days after the (C) The purchaser has sufficient hearing. The decision of the Hearing funds to purchase and, if necessary, re- Officer shall be binding on FEMA, locate the unit. The Associate Director which shall take all actions necessary may approve the sale of a mobile home to carry out the decision or refrain or manufactured housing unit to a from any actions prohibited by the de- temporary housing occupant when ade- cision. quate alternate housing is available (1) The decision shall include a notice but only when such sales are clearly in to the occupant that he/she must va- the best interest of the Government. cate the premises within 3 days of re- (ii) Sales price. Units shall be sold at ceipt of the written notice or on the prices that are fair and equitable to the termination date stated in the original purchaser and to the Government, as notice of termination, as required in determined by the Associate Director. paragraph (m)(2)(i) of this section, The purchaser shall pay the total sales whichever is later. If the occupant does price at the time of sale. not quit the premises, appropriate ac- (iii) Adjustment to the sales price.

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(A) Adjustments to the sales price (B) In accordance with the Flood Dis- may be provided only when both of the aster Protection Act of 1973, Public following conditions are met: Law 93–234, as amended, the sale of a (1) There is a need to purchase the unit for the purpose of meeting the per- unit for use as the purchaser’s primary manent housing need of an individual residence because other adequate alter- or family may not be approved where nate housing is unavailable. Adequate the unit would be placed in a des- alternate housing must meet the cri- ignated special flood hazard area which teria in paragraph (c)(1) of this section, has been identified by the Director for and may consist of: at least 1 year as floodprone unless the (i) Existing housing; community in which the unit is to be (ii) Additional resources such as dis- located after the sale is, at the time of aster-damaged rental accommodations approval, participating in the National which can reasonably be expected to be Flood Insurance Program. The pur- repaired and become available in the chaser must agree to buy and maintain near future; an adequate flood insurance policy for (iii) New housing construction or as long as the unit is occupied by the housing to be made available through purchaser. An adequate policy for pur- Government subsidy which is included poses of this paragraph shall mean one in the immediate recovery plans for which provides coverage for the basic the area; and sales price of the unit. The purchaser (iv) Residences which can be repaired must provide proof of purchase of the by the predisaster owner/occupant initial flood insurance policy. through funds available from insur- (3) Transfer. The Associate Director ance, other disaster assistance pro- may lend temporary housing units pur- grams, or through their own resources. chased under section 408(a) of the Act (2) In addition to his/her resources, directly to States, other Governmental the purchaser cannot obtain sufficient entities, or voluntary organizations. funds through insurance proceeds, dis- Such transfers may be made only in aster loans, grants, and commercial connection with a Presidential declara- lending institutions to cover the sales tion of a major disaster or emergency. price. Donations may be made only when it is (B) To determine the adjusted sales in the best interest of the Government, price, the current available financial such as when future re-use by the Fed- resources of the purchaser shall be cal- eral Government would not be eco- culated. If the financial resources are nomically feasible. As a condition of equal to or greater than the basic sales such transfers, the Associate Director price, then no adjustment shall be ap- shall require that the recipient: proved. If the purchaser’s financial re- (i) Utilize the units for the purpose of sources are less than the basic sales providing temporary housing for vic- price, the sales price shall be adjusted tims of major disasters or emergencies to take into consideration the financial in accordance with the written agree- resources available but shall include ment; and some consideration. Deviations from (ii) Comply with the current applica- this rule may be reviewed on a case-by- ble FEMA policies and regulations, in- case basis by the Associate Director. cluding this section; 44 CFR part 9 (es- (C) The Regional Director must ap- pecially §§ 9.13 and 9.14), Floodplain prove all adjustments to the sales price Management and Protection of Wet- of a mobile home. lands; 44 CFR part 10, Environmental (iv) Other conditions of sale. Considerations. The Associate Director (A) A unit shall be sold ‘‘as is, where may order returned any temporary is’’ except for repairs necessary to pro- housing unit made available under this tect health or safety, which are to be section which is not used in accordance completed prior to sale. There shall be with the terms of transfer. no implied warranties. In addition, the (o) Reports. The Associate Director, purchaser must be informed that he/she Regional Director, or Federal Coordi- may have to bring the unit up to codes nating Officer may require from field and standards which are applicable at operations such reports, plans, and the proposed site. evaluations as they deem necessary to

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carry out their responsibilities under thorized representative. The Associate the Act and these regulations. Director shall approve such a request (p) Federal responsibility. The Federal based on the Regional Director’s rec- financial and operational responsi- ommendation and based on a finding bility for the Temporary Housing As- that State administration is both in sistance program shall not exceed 18 the interest of the Federal Government months from the date of the declara- and those needing temporary housing tion of the major disaster or emer- assistance. The State must have an ap- gency. This period may be extended in proved plan prior to the incident and writing by the Associate Director, an approved operational annex within 3 based on a determination that an ex- days of the declaration in order to ad- tension is necessary and in the public minister the program. When admin- interest. The Regional Director may istering the program the State must authorize continued use on a non-reim- comply with FEMA program regula- bursable basis of Government property, tions and policies. office space, and equipment by a State, (1) State temporary housing assistance other Government entity, or voluntary plan. (i) States which have an interest organization after the 18 month period. in administering the Temporary Hous- (q) Applicant notification—(1) General. ing Assistance program shall be re- All applicants for temporary housing quired to develop a plan that includes, assistance will be notified regarding at a minimum, the items listed below: the type and amount of assistance for (A) Assignment of temporary housing which they are qualified. Whenever assistance responsibilities to State practicable, such notification will be and/or local officials and agencies; provided within 7 days of their applica- (B) A description of the program, its tion and will be in writing. functions, goals and objectives of the (2) Eligible applicants for temporary program, and proposed organization housing assistance will be provided in- and staffing plan; formation regarding: (C) Procedures for: (i) All forms of housing assistance (1) Accepting applications at Disaster available; Application Centers and subsequently (ii) The criteria which must be met at a State established disaster housing to qualify for each type of assistance; office; (iii) Any limitations which apply to (2) Determining eligibility utilizing each type of assistance; and FEMA’s habitability contract and noti- (iv) The address and telephone num- fying applicants of the determination; ber of offices responsible for responding (3) Preventing duplication of benefits to appeals and requests for changes in between temporary housing assistance the type or amount of assistance pro- and assistance from other means, as vided. well as a recoupment procedure when (r) Location. In providing temporary duplication occurs; housing assistance, consideration will (4) Providing the various types of as- be given to the location of: sistance (home repairs, existing rental (1) The eligible applicants’ home and resources, transient accommodations, place of business; and mobile homes); (2) Schools which the eligible appli- (5) Providing furniture assistance; cant or members of the household attend; and (6) Recertifying occupants for contin- (3) Agricultural activities which pro- ued assistance; vide 25 percent or more of the eligible (7) Terminating assistance; applicants’ annual income. (8) Contracting for services and/or (s) NonFederal administration of tem- supplies; porary housing assistance. A State may (9) Quality control; request authority to administer all or (10) Maintaining a management in- part of the temporary housing assist- formation system; ance program in the Governor’s request (11) Financial management; for a declaration or in a subsequent (12) Public information; written request to the Regional Direc- (13) Processing appeals; and tor from the Governor or his/her au- (14) Arranging for a program review.

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(ii) The Governor or his/her designee (iv) Demonstrated understanding of may request the Regional Director to the tasks to be performed. provide technical assistance in the (4) Grant application. Approval of preparation of an administrative plan. funding shall be obtained through sub- (iii) The Governor or designee shall mission of a project application by the submit the plan to the Regional Direc- State or local government through the tor for approval. Plans shall be revised, Governor’s Authorized Representative. as necessary, and shall be reviewed at The State shall maintain adequate doc- least annually by the Regional Direc- umentation according to the require- tor. ments of 44 CFR part 13, Uniform Ad- (2) Operational annex. Prior to the ministrative Requirements for Grants State administering the program, the and Cooperative Agreements to State state must submit an operational and Local Governments, to enable annex which tailors the approved State analysis of the program. Final reim- plan to the particular disaster or emer- bursement to the State, or final debt gency. The annex must be reviewed and collection, shall be based on an exam- approved by the Regional Director ination of the voucher filed by the within 3 days of the declaration or the State. State shall not be permitted to admin- (5) Authorized costs. All expenditures ister the program. The operational associated with administering the pro- annex shall include but not be limited gram are authorized if in compliance to: with 44 CFR 13.22, Allowable Costs, and (i) Organization and staffing specific the associated OMB Circular A–87, Cost to the major disaster or emergency; Principles for State and Local Govern- ments. Examples of program costs al- (ii) Pertinent goals and management lowable under the Temporary Housing objectives; Assistance program include home re- (iii) A proposed budget; and pairs, costs associated with rental pay- (iv) A narrative which describes ments, reimbursements for temporary methods for orderly tracking and proc- housing including transient accom- essing of applications; assuring timely modations and commercial site rental, delivery of assistance; identification of mobile home installation and mainte- potential problem areas; and any devi- nance, mobile home private site devel- ations from the approved plan. The Re- opment, cost of supplemental assist- gional Director may require additional ance, mortgage and rental payments, annexes as necessary for subsequent other necessary costs, when approved phases of the operation. by the Associate Director. All con- (3) Evaluation of capability. State and tracts require the review and approval local government assumption of the of the Regional Director prior to temporary housing assistance program award, in order to be considered as an for a particular disaster shall be ap- authorized expenditure. proved by the Associate Director based (6) Federal monitoring and oversight. on an evaluation of the capabilities and The Regional Director shall monitor commitment of the entity by the Re- State-administered activities since he/ gional Director. At a minimum, the she remains responsible for the overall evaluation shall include a review of the delivery of temporary housing assist- following: ance. In addition, policy guidance and (i) The State temporary housing as- interpretations to meet specific needs sistance plan which has been approved of a disaster shall be provided through by the Regional Director prior to the the oversight function. incident, and the specific operational (7) Technical assistance. The Regional annex which has been approved in ac- Director shall provide technical assist- cordance with paragraph (s)(2) of this ance as necessary to support State-ad- section. ministered operations through train- (ii) Past performance in administra- ing, procedural issuances, and by pro- tion of temporary housing assistance viding experienced personnel to assist or other similar operations; the State and local staff. (iii) Management and staff capabili- (8) Operational resources. The Re- ties; and gional Director shall make available

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for use in State or locally administered An applicant is expected to accept the temporary housing programs Federal first offer of housing assistance; unwar- stand-by contracts, memoranda of un- ranted refusal of assistance may result derstanding with Government and vol- in the forfeiture of future housing as- untary agencies, and Federal property, sistance. Temporary housing and re- such as government-owned mobile pair assistance shall be utilized to the homes and travel trailers. fullest extent practicable before other (9) Program reviews and audits. The types of housing assistance. State shall conduct program review of (d) Date of eligibility. Eligibility for each operation. All operations are sub- Federal assistance under this subpart ject to Federal audit. will begin on the date of the incident (Approved by the Office of Management and that results in a presidential declara- Budget under OMB control numbers 3067–0009 tion that a major disaster or emer- and 3067–0043) gency exists, except that reasonable [55 FR 2296, Jan. 23, 1990, as amended at 61 lodging expenses that are incurred in FR 7224, Feb. 27, 1996; 64 FR 46853, Aug. 27, anticipation of and immediately pre- 1999; 67 FR 61460, Sept. 30, 2002] ceding such event may be eligible for Federal assistance under this chapter. §§ 206.102–206.109 [Reserved] (e) Period of assistance. FEMA may § 206.110 Federal assistance to individ- provide assistance under this subpart uals and households. for a period not to exceed 18 months (a) Purpose. This section implements from the date of declaration. The Asso- the policy and procedures set forth in ciate Director (AD) may extend this pe- section 408 of the Robert T. Stafford riod if he/she determines that due to Disaster Relief and Emergency Assist- extraordinary circumstances an exten- ance Act, 42 U.S.C. 5174, as amended by sion would be in the public interest. the Disaster Mitigation Act of 2000. (f) Assistance not counted as income. This program provides financial assist- Assistance under this subpart is not to ance and, if necessary, direct assist- be counted as income or a resource in ance to eligible individuals and house- the determination of eligibility for holds who, as a direct result of a major welfare, income assistance or income- disaster or emergency, have uninsured tested benefit programs that the Fed- or under-insured, necessary expenses eral Government funds. and serious needs and are unable to (g) Exemption from garnishment. All meet such expenses or needs through assistance provided under this subpart other means. is exempt from garnishment, seizure, (b) Maximum amount of assistance. No encumbrance, levy, execution, pledge, individual or household will receive fi- attachment, release or waiver. Recipi- nancial assistance greater than $25,000 ents of rights under this provision may under this subpart with respect to a not reassign or transfer the rights. single major disaster or emergency. These exemptions do not apply to FEMA will adjust the $25,000 limit an- FEMA recovering assistance fraudu- nually to reflect changes in the Con- lently obtained or misapplied. sumer Price Index (CPI) for All Urban Consumers that the Department of (h) Duplication of benefits. In accord- Labor publishes. ance with the requirements of section (c) Multiple types of assistance. One or 312 of the Stafford Act, 42 U.S.C. 5155, more types of housing assistance may FEMA will not provide assistance be made available under this section to under this subpart when any other meet the needs of individuals and source has already provided such as- households in the particular disaster sistance or when such assistance is situation. FEMA shall determine the available from any other source. In the appropriate types of housing assistance instance of insured applicants, we will to be provided under this section based provide assistance under this subpart on considerations of cost effectiveness, only when: convenience to the individuals and (1) Payment of the applicable bene- households and the suitability and fits are significantly delayed; availability of the types of assistance. (2) Applicable benefits are exhausted;

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(3) Applicable benefits are insuffi- (iii) As provided in paragraph (j)(2) of cient to cover the housing or other this section. needs; or (2) Under section 408(f)(2) of the Staf- (4) Housing is not available on the ford Act, 42 U.S.C. 5174(f)(2), FEMA private market. must share applicant information with (i) Cost sharing. (1) Except as provided States in order for the States to make in paragraph (i)(2) of this section, the available any additional State and Federal share of eligible costs paid local disaster assistance to individuals under this subpart shall be 100 percent. and households. (2) Federal and State cost shares for (i) States receiving applicant infor- ‘‘Other Needs’’ assistance under sub- mation under this paragraph must pro- sections 408 (e) and (f) of the Stafford tect such information in the same Act will be as follows; manner that the Privacy Act requires (i) The Federal share shall be 75 per- FEMA to protect it. cent; and (ii) States receiving such applicant (ii) The non-federal share shall be information shall not further disclose paid from funds made available by the the information to other entities, and State. If the State does not provide the shall not use it for purposes other than non-Federal share to FEMA before providing additional State or local dis- FEMA begins to provide assistance to aster assistance to individuals and individuals and households under sub- households. section 408(e) of the Stafford Act, (k) Flood Disaster Protection Act re- FEMA will still process applications. quirement. (1) The Flood Disaster Pro- The State will then be obliged to reim- tection Act of 1973, Public Law 93–234, burse FEMA for the non-Federal cost as amended (42 U.S.C. 4106), imposes share of such assistance on a monthly certain restrictions on federal financial basis. If the State does not provide assistance for acquisition and con- such reimbursement on a monthly struction purposes. For the purpose of basis, then FEMA will issue a Bill for this paragraph, financial assistance for Collection to the State on a monthly acquisition or construction purposes basis for the duration of the program. FEMA will charge interest, penalties, means assistance to an individual or and administrative fees on delinquent household to buy, receive, build, repair Bills for Collection in accordance with or improve insurable portions of a the Debt Collection Improvement Act. home and/or to purchase or repair in- Cost shared funds, interest, penalties surable contents. For a discussion of and fees owed to FEMA through delin- what elements of a home and contents quent Bills for Collections may be off- are insurable, See 44 CFR part 61, Insur- set from other FEMA disaster assistance Coverage and Rates. ance programs (i.e. Public Assistance) (2) Individuals or households that are from which the State is receiving, or located in a special flood hazard area future grant awards from FEMA or may not receive Federal Assistance for other Federal Agencies. Debt Collec- National Flood Insurance Program tion procedures will be followed as out- (NFIP)—insurable real and/or personal lined in 44 CFR part 11. property, damaged by a flood, unless (j) Application of the Privacy Act. the community in which the property (1) All provisions of the Privacy Act is located is participating in the NFIP of 1974, 5 U.S.C. 552a, apply to this sub- (See 44 CFR part 59.1), or the exception part. FEMA may not disclose an appli- in 42 U.S.C. 4105(d) applies. However, if cant’s record except: the community in which the damaged (i) In response to a release signed by property is located qualifies for and en- the applicant that specifies the purpose ters the NFIP during the six-month pe- for the release, to whom the release is riod following the declaration, the Gov- to be made, and that the applicant au- ernor’s Authorized Representative may thorizes the release; request a time extension for FEMA (See (ii) In accordance with one of the § 206.112) to accept registrations and to published routine uses in our system of process assistance applications in that records; or community.

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(3) Flood insurance purchase require- ed from review in accordance with sec- ment: (i) As a condition of the assist- tion 106 of the National Historic Pres- ance and in order to receive any Fed- ervation Act, with the exception of eral assistance for future flood damage ground disturbing activities and con- to any insurable property, individuals struction related to §§ 206.117(b)(1)(ii) and households named by FEMA as eli- (Temporary housing), 206.117(b)(3) (Re- gible recipients under section 408 of the placement housing), and 206.117(b)(4) Stafford Act who receive assistance, (Permanent housing construction). due to flood damages, for acquisition or [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. construction purposes under this sub- 9, 2002] part must buy and maintain flood insurance, as required in 42 U.S.C. 4012a, § 206.111 Definitions. for at least the assistance amount. This applies only to real and personal Adequate, alternate housing means property that is in or will be in a des- housing that accommodates the needs ignated Special Flood Hazard Area and of the occupants; is within the normal that can be insured under the National commuting patterns of the area or is Flood Insurance Program. within reasonable commuting distance (A) If the applicant is a homeowner, of work, school, or agricultural activi- flood insurance coverage must be ties that provide over 50 percent of the maintained at the address of the flood- household income; and is within the fi- damaged property for as long as the ad- nancial ability of the occupant. dress exists. The flood insurance re- Alternative housing resources means quirement is reassigned to any subse- any housing that is available or can quent owner of the flood-damaged ad- quickly be made available in lieu of dress. permanent housing construction and is (B) If the applicant is a renter, flood cost-effective when compared to per- insurance coverage must be maintained manent construction costs. Some ex- on the contents for as long as the amples are rental resources, mobile renter resides at the flood-damaged homes and travel trailers. rental unit. The restriction is lifted Applicant means an individual or once the renter moves from the rental household who has applied for assist- unit. ance under this subpart. (C) When financial assistance is used Assistance from other means includes to purchase a dwelling, flood insurance monetary or in-kind contributions coverage must be maintained on the from voluntary or charitable organiza- dwelling for as long as the dwelling ex- tions, insurance, other governmental ists and is located in a designated Spe- programs, or from any sources other cial Flood Hazard Area. The flood in- than those of the applicant. surance requirement is reassigned to Dependent means someone who is any subsequent owner of the dwelling. normally claimed as such on the Fed- (ii) FEMA may not provide financial eral tax return of another, according to assistance for acquisition or construc- the Internal Revenue Code. It may also tion purposes to individuals or house- mean the minor children of a couple holds who fail to buy and maintain not living together, where the children flood insurance required under para- live in the affected residence with the graph (k)(3)(i) of this section or re- parent or guardian who does not actu- quired by the Small Business Adminis- ally claim them on the tax return. tration. Displaced applicant means one whose (l) Environmental requirements. Assist- primary residence is uninhabitable, in- ance provided under this subpart must accessible, made unavailable by the comply with the National Environ- landlord (to meet their disaster hous- mental Policy Act (NEPA) and other ing need) or not functional as a direct environmental laws and Executive Or- result of the disaster and has no other ders, consistent with 44 CFR part 10. housing available in the area, i.e., a (m) Historic preservation. Assistance secondary home or vacation home. provided under this subpart generally Effective date of assistance means the does not have the potential to affect date that the applicant was determined historic properties and thus is exempt- eligible for assistance.

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Eligible hazard mitigation measures are a responsible official due to continued home improvements that an applicant health, safety or security problems. can accomplish in order to reduce or In-kind contributions mean something prevent future disaster damages to es- other than monetary assistance, such sential components of the home. as goods, commodities or services. Fair market rent means housing mar- Lodging expenses means expenses for ket-wide estimates of rents that pro- reasonable short-term accommodations vide opportunities to rent standard that individuals or households incur in quality housing throughout the geo- the immediate aftermath of a disaster. graphic area in which rental housing Lodging expenses may include but are units are in competition. The fair mar- not limited to the cost of brief hotel ket rent rates applied are those identi- stays. fied by the Department of Housing and Manufactured housing sites means Urban Development as being adequate those sites used for the placement of for existing rental housing in a par- government or privately owned mobile ticular area. homes, travel trailers, and other manu- Financial ability means the appli- factured housing units, including: cant’s capability to pay housing costs. (1) Commercial site, a site customarily If the household income has not leased for a fee, which is fully equipped changed subsequent to or as a result of to accommodate a housing unit; the disaster then the determination is (2) Private site, a site that the appli- based upon the amount paid for hous- cant provides or obtains at no cost to ing before the disaster. If the house- the Federal Government, complete hold income is reduced as a result of with utilities; and the disaster then the applicant will be (3) Group site, a site provided by the deemed capable of paying 30 percent of State or local government that accom- gross post disaster income for housing. modates two or more units and is com- When computing financial ability, ex- plete with utilities. treme or unusual financial circumstances may be considered by the Necessary expense means the cost as- Regional Director. sociated with acquiring an item or items, obtaining a service, or paying Financial assistance means cash that may be provided to eligible individuals for any other activity that meets a se- and households, usually in the form of rious need. a check or electronic funds transfer. Occupant means a resident of a hous- Functional means an item or home ing unit. capable of being used for its intended Owner-occupied means that the resi- purpose. dence is occupied by: Household means all persons (adults (1) The legal owner; and children) who lived in the pre-dis- (2) A person who does not hold formal aster residence who request assistance title to the residence and pays no rent, under this subpart, as well as any per- but is responsible for the payment of sons, such as infants, spouse, or part- taxes or maintenance of the residence; time residents who were not present at or the time of the disaster, but who are (3) A person who has lifetime occu- expected to return during the assist- pancy rights with formal title vested in ance period. another. Housing costs means rent and mort- Permanent housing plan means a real- gage payments, including principal, in- istic plan that, within a reasonable terest, real estate taxes, real property timeframe, puts the disaster victim insurance, and utility costs. back into permanent housing that is Inaccessible means as a result of the similar to the victim’s pre-disaster incident, the applicant cannot reason- housing situation. A reasonable time- ably be expected to gain entry to his or frame includes sufficient time for se- her pre-disaster residence due to the curing funds, locating a permanent disruption, or destruction, of access dwelling, and moving into the dwelling. routes or other impediments to access, Primary residence means the dwelling or restrictions placed on movement by where the applicant normally lives,

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during the major portion of the cal- reason for the delay in their registra- endar year; or the dwelling that is re- tion. quired because of proximity to employ- [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. ment, including agricultural activities, 9, 2002] that provide 50 percent of the household’s income. § 206.113 Eligibility factors. Reasonable commuting distance means (a) Conditions of eligibility. In general, a distance that does not place undue FEMA may provide assistance to indi- hardship on an applicant. It also takes viduals and households who qualify for into consideration the traveling time such assistance under section 408 of the involved due to road conditions, e.g., Stafford Act and this subpart. FEMA mountainous regions or bridges out may only provide assistance: and the normal commuting patterns of (1) When the individual or household the area. has incurred a disaster-related nec- Safe means secure from disaster-re- essary expense or serious need in the lated hazards or threats to occupants. state in which the disaster has been de- Sanitary means free of disaster-re- clared, without regard to their resi- lated health hazards. dency in that state; Serious need means the requirement (2) In a situation where the applicant for an item, or service, that is essential has insurance, when the individual or to an applicant’s ability to prevent, household files a claim with their in- mitigate, or overcome a disaster-re- surance provider for all potentially ap- lated hardship, injury or adverse condi- plicable types of insurance coverage tion. and the claim is denied; Significantly delayed means the proc- (3) In a situation where the applicant ess has taken more than 30 days. has insurance, when the insured individual or household’s insurance pro- Uninhabitable means the dwelling is ceeds have been significantly delayed not safe, sanitary or fit to occupy. through no fault of his, her or their We, our, and us mean FEMA. own, and the applicant has agreed to [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. repay the assistance to FEMA or the 9, 2002] State from insurance proceeds that he, she or they receive later; § 206.112 Registration period. (4) In a situation where the applicant (a) Initial period. The standard FEMA has insurance, when the insured indi- registration period is 60 days following vidual or household’s insurance pro- the date that the President declares an ceeds are less than the maximum incident a major disaster or an emer- amount of assistance FEMA can authorize and the proceeds are insuffi- gency. cient to cover the necessary expenses (b) Extension of the registration period. or serious needs; The regional director or his/her des- (5) In a situation where the applicant ignee may extend the registration pe- has insurance, when housing is not riod when the State requests more available on the private market; time to collect registrations from the (6) In a situation where the applicant affected population. The Regional Di- has insurance, when the insured indi- rector or his/her designee may also ex- vidual or household has accepted all as- tend the standard registration period sistance from other sources for which when necessary to establish the same he, she, or they are eligible, including registration deadline for contiguous insurance, when the insured individual counties or States. or household’s insurance proceeds and (c) Late registrations. After the stand- all other assistance are less than the ard or extended registration period maximum amount of assistance FEMA ends, FEMA will accept late registra- can authorize and the proceeds are in- tions for an additional 60 days. We will sufficient to cover the necessary ex- process late registrations for those reg- pense or serious needs; istrants who provide suitable docu- (7) When the applicant agrees to re- mentation to support and justify the fund to FEMA or the State any portion

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of the assistance that the applicant re- during the six-month period following ceives or is eligible to receive as assist- the declaration then the individual or ance from another source; household may be eligible; (8) With respect to housing assist- (8) To individuals or households who ance, if the primary residence has been did not fulfill the condition to purchase destroyed, is uninhabitable, or is inac- and maintain flood insurance as a re- cessible; and quirement of receiving previous Fed- (9) With respect to housing assist- eral disaster assistance; ance, if a renter’s primary residence is (9) For business losses, including no longer available as a result of the farm businesses and self-employment; disaster. or (b) Conditions of ineligibility. We may (10) For any items not otherwise au- not provide assistance under this sub- thorized by this section. part: [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. (1) For housing assistance, to individ- 9, 2002] uals or households who are displaced from other than their pre-disaster pri- § 206.114 Criteria for continued assist- mary residence; ance. (2) For housing assistance, to individ- (a) FEMA expects all recipients of as- uals or households who have adequate sistance under this subpart to obtain rent-free housing accommodations; and occupy permanent housing at the (3) For housing assistance, to individ- earliest possible time. FEMA may pro- uals or households who own a sec- vide continued housing assistance dur- ondary or vacation residence within ing the period of assistance, but not to reasonable commuting distance to the exceed the maximum amount of assist- disaster area, or who own available ance for the program, based on need, rental property that meets their tem- and generally only when adequate, al- porary housing needs; ternate housing is not available or (4) For housing assistance, to individ- when the permanent housing plan has uals or households who evacuated the not been fulfilled through no fault of residence in response to official warn- the applicant. ings solely as a precautionary measure (b) Additional criteria for continued as- and who are able to return to the resi- sistance. (1) All applicants requesting dence immediately after the incident; continued rent assistance must estab- (5) For housing assistance, for im- lish a realistic permanent housing plan provements or additions to the pre-dis- no later than the first certification for aster condition of property, except continued assistance. Applicants will those required to comply with local be required to provided documentation and State ordinances or eligible miti- showing that they are making efforts gation measures; to obtain permanent housing. (6) To individuals or households who (2) Applicants requesting continued have adequate insurance coverage and rent assistance must submit rent re- where there is no indication that insur- ceipts to show that they have ex- ance proceeds will be significantly de- hausted the FEMA rent funds, and pro- layed, or who have refused assistance vide documentation identifying the from insurance providers; continuing need. (7) To individuals or households (3) FEMA generally expects that pre- whose damaged primary residence is disaster renters will use their initial located in a designated special flood rental assistance to obtain permanent hazard area, and in a community that housing. However, we may certify is not participating in the National them, during the period of assistance, Flood Insurance Program, except that for continued rent assistance when ade- financial assistance may be provided to quate, alternate housing is not avail- rent alternate housing and for medical, able, or when they have not realized a dental, funeral expenses and uninsur- permanent housing plan through no able items to such individuals or fault of their own. households. However, if the community (4) FEMA may certify pre-disaster in which the damaged property is lo- owners for continued rent assistance, cated qualifies for and enters the NFIP during the period of assistance, when

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adequate, alternate housing is not other than the applicant files the ap- available, or when they have not real- peal, then the applicant must also sub- ized a permanent housing plan through mit a signed statement giving that per- no fault of their own. son authority to represent him, her or (5) Individuals or households request- them. ing additional repair assistance will be (c) Applicants must appeal to the Re- required to submit information and/or gional Director or his/her designee for documentation identifying the con- decisions made under this subpart, un- tinuing need. less FEMA has made a grant to the (6) Individuals or households request- State to provide assistance to individ- ing additional assistance for personal property, transportation, medical, den- uals and households under § 206.120(a), tal, funeral, moving and storage, or State administration of other needs as- other necessary expenses and serious sistance; then the applicant must ap- needs will be required to submit infor- peal to the State. mation and/or documentation identi- (d) An applicant may ask for a copy fying the continuing need. of information in his or her file by writing to FEMA or the State as appro- [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002] priate. If someone other than the applicant is submitting the request, then § 206.115 Appeals. the applicant must also submit a (a) Under the provisions of section signed statement giving that person 423 of the Stafford Act, applicants for authority to represent him or her. assistance under this subpart may ap- (e) The appropriate FEMA or State peal any determination of eligibility program official will notify the appli- for assistance made under this subpart. cant in writing of the receipt of the ap- Applicants must file their appeal with- peal. in 60 days after the date that we notify (f) The Regional Director or his/her the applicant of the award or denial of designee or appropriate State official assistance. Applicants may appeal the will review the original decision after following: receiving the appeal. FEMA or the (1) Eligibility for assistance, includ- State, as appropriate, will give the ap- ing recoupment; pellant a written notice of the disposi- (2) Amount or type of assistance; tion of the appeal within 90 days of the (3) Cancellation of an application; receiving the appeal. The decision of (4) The rejection of a late applica- the appellate authority is final. tion; (5) The denial of continued assistance [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. under § 206.114, Criteria for continued 9, 2002] assistance; (6) FEMA’s intent to collect rent § 206.116 Recovery of funds. from occupants of a housing unit that (a) The applicant must agree to repay FEMA provides; to FEMA (when funds are provided by (7) Termination of direct housing as- FEMA) and/or the State (when funds sistance; are provided by the State) from insur- (8) Denial of a request to purchase a ance proceeds or recoveries from any FEMA-provided housing unit at the other source an amount equivalent to termination of eligibility; (9) The sales price of a FEMA-pro- the value of the assistance provided. In vided housing unit they want to pur- no event must the amount repaid to chase; or FEMA and/or the State exceed the (10) Any other eligibility-related de- amount that the applicant recovers cision. from insurance or any other source. (b) Appeals must be in writing and (b) An applicant must return funds to explain the reason(s) for the appeal. FEMA and/or the State (when funds are The applicant or person who the appli- provided by the State) when FEMA cant authorizes to act on his or her be- and/or the State determines that the half must sign the appeal. If someone assistance was provided erroneously,

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that the applicant spent the funds in- must reimburse the full amount of the appropriately, or that the applicant ob- security deposit to the Federal Govern- tained the assistance through fraudu- ment before or at the time that the lent means. temporary housing assistance ends. [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. (ii) Direct assistance. (A) FEMA may 9, 2002] provide direct assistance in the form of purchased or leased temporary housing § 206.117 Housing assistance. units directly to individuals or house- (a) Purpose. FEMA may provide fi- holds who lack available housing re- nancial or direct assistance under this sources and would be unable to make section to respond to the disaster-re- use of the assistance provided under lated housing needs of individuals and paragraph (b)(1)(i) of this section. households. (B) FEMA will include all members (b) Types of housing assistance—(1) of a pre-disaster household in a single Temporary housing assistance—(i) Finan- application and will provide assistance cial assistance. Eligible individuals and for one temporary housing residence, households may receive financial as- unless the Regional Director or his/her sistance to rent alternate housing re- designee determines that the size or sources, existing rental units, manu- nature of the household requires that factured housing, recreational vehicles, we provide assistance for more than or other readily fabricated dwellings. one residence. FEMA may also provide assistance for (C) Any site upon which a FEMA-pro- the reasonable cost of any transpor- vided housing unit is placed must com- tation, utility hookups, or installation ply with applicable State and local of a manufactured housing unit or rec- codes and ordinances, as well as 44 CFR reational vehicle to be used for hous- part 9, Floodplain Management and ing. This includes reimbursement for Protection of Wetlands, and 44 CFR reasonable short-term lodging expenses part 10, Environmental Considerations, that individuals or households incur in and all other applicable environmental the immediate aftermath of a disaster. laws and Executive Orders. (A) FEMA will include all members (D) All utility costs and utility secu- of a pre-disaster household in a single rity deposits are the responsibility of registration and will provide assistance the occupant except where the utility for one temporary housing residence, does not meter utility services sepa- unless the Regional Director or his/her rately and utility services are a part of designee determines that the size or the rental charge. nature of the household requires that (E) FEMA-provided or funded housing we provide assistance for more than units may be placed in the following lo- one residence. cations: (B) FEMA will base the rental assist- (1) A commercial site that is com- ance on the Department of Housing and plete with utilities; when the Regional Urban Development’s current fair mar- Director or his/her designee determines ket rates for existing rental units. that the upgrading of commercial sites, FEMA will further base the applicable or installation of utilities on such rate on the household’s bedroom re- sites, will provide more cost-effective, quirement and the location of the rent- timely and suitable temporary housing al unit. than other types of resources, then (C) All utility costs and utility secu- Federal assistance may be authorized rity deposits are the responsibility of for such actions. the occupant except where the utility (2) A private site that an applicant does not meter utility services sepa- provides, complete with utilities; when rately and utility services are a part of the Regional Director or his/her des- the rental charge. ignee determines that the cost of in- (D) The occupant is responsible for stallation or repairs of essential utili- all housing security deposits. In ex- ties on private sites will provide more traordinary circumstances, the Re- cost effective, timely, and suitable gional Director or his/her designee may temporary housing than other types of authorize the payment of security de- resources, then Federal assistance may posits; however, the owner or occupant be authorized for such actions.

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(3) A group site that the State or or his/her designee deems appropriate local government provides that accom- after the termination date, including modates two or more units and is com- fair market rent for the unit. plete with utilities; when the Regional (I) Duplication of benefits may occur Director or his/her designee determines when an applicant has additional living that the cost of developing a group site expense insurance benefits to cover the provided by the State or local govern- cost of renting alternate housing. In ment, to include installation or repairs these instances, FEMA may provide a of essential utilities on the sites, will temporary housing unit if adequate al- provide more cost effective, timely, ternate housing is not available, or if and suitable temporary housing than doing so is in the best interest of the other types of resources, then Federal household and the government. We will assistance may be authorized for such establish fair market rent, not to ex- actions. ceed insurance benefits available. (4) A group site provided by FEMA, if (2) Repairs. (i) FEMA may provide fi- the Regional Director or his/her des- nancial assistance for the repairs of un- ignee determines that such a site insured disaster-related damages to an would be more economical or acces- owner’s primary residence. The funds sible than one that the State or local are to help return owner-occupied pri- government provides. mary residences to a safe and sanitary (F) After the end of the 18-month pe- living or functioning condition. Re- riod of assistance, FEMA may begin to pairs may include utilities and residen- charge up to the fair market rent rate tial infrastructure (such as private ac- for each temporary housing unit process routes, privately owned bridge, vided. We will base the rent charged on wells and/or septic systems) damaged the number of bedrooms occupied and by a major disaster. needed by the household. When estab- (ii) The type of repair FEMA author- lishing the amount of rent, FEMA will izes may vary depending upon the na- take into account the financial ability ture of the disaster. We may authorize of the household. repair of items where feasible or re- (G) We may terminate direct assist- placement when necessary to insure ance for reasons that include, but are the safety or health of the occupant not limited to, the following: and to make the residence functional. (1) The period of assistance expired (iii) FEMA may also provide assist- under § 206.110(e) and has not been ex- ance for eligible hazard mitigation tended; measures that reduce the likelihood of (2) Adequate alternate housing is future damage to damaged residences, available to the occupant(s); utilities or infrastructure. (3) The occupant(s) obtained housing (iv) Eligible individuals or house- assistance through either misrepresen- holds may receive up to $5,000 under tation or fraud; this paragraph, adjusted annually to (4) The occupant(s) failed to comply reflect changes in the CPI, to repair with any term of the lease/rental damages to their primary residence agreement or other rules of the site without first having to show that the where the unit is located. assistance can be met through other (5) The occupant(s) does not provide means, except insurance proceeds. evidence documenting that they are (v) The individual or household is re- working towards a permanent housing sponsible for obtaining all local per- plan. mits or inspections that applicable (H) FEMA will provide a 15 day writ- State or local building codes may reten notice when initiating the termi- quire. nation of direct assistance that we pro- (3) Replacement. FEMA may provide vide under our lease agreements. This financial assistance under this para- notice will specify the reasons for ter- graph to replace the primary residence mination of assistance and occupancy, of an owner-occupied dwelling if the the date of termination, the procedure dwelling was damaged by the disaster for appealing the determination, and and there was at least $10,000 of dam- the occupant’s liability for such addi- age (as adjusted annually to reflect tional charges as the Regional Director changes in the CPI). The applicant may

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either replace the dwelling in its en- or resetting mobile home sewer, water, tirety for $10,000 (as adjusted annually electrical and fuel lines and tanks; and to reflect changes in the CPI) or less, (viii) Items or services determined to or may use the assistance toward the be eligible hazard mitigation measures. cost of acquiring a new permanent resi- (2) Replacement assistance, will be dence that is greater in cost than based on the verified disaster-related $10,000 (as adjusted annually to reflect level of damage to the dwelling, or the changes in the CPI). All replacement statutory maximum, whichever is less. assistance awards must be individually (3) Permanent housing construction, approved by the Associate Director. in general, must be consistent with The Associate Director may approve current minimal local building codes replacement assistance for applicants and standards where they exist, or whose damages are less than $10,000 in minimal acceptable construction in- extraordinary circumstances where re- dustry standards in the area, including placement assistance is more appro- reasonable hazard mitigation meas- priate than other forms of housing as- ures, and federal environmental laws sistance. and regulations Dwellings will be of av- (4) Permanent housing construction. erage quality, size and capacity, taking FEMA may provide financial or direct into consideration the needs of the oc- assistance to applicants for the purpose cupant. of constructing permanent housing in [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. insular areas outside the continental 9, 2002] United States and in other remote locations when alternative housing re- § 206.118 Disposal of housing units. sources are not available and the types (a) FEMA may sell housing units pur- of financial or direct temporary hous- chased under § 206.117(b)(1)(ii), Tem- ing assistance described at paragraph porary housing, direct assistance, as (b)(1) of this section are unavailable, follows: infeasible, or not cost-effective. (1) Sale to an applicant. (c) Eligible costs. (1) Repairs to the (i) Sale to the individual or house- primary residence or replacement of hold occupying the unit, if the occu- items must be disaster-related and pant lacks permanent housing, has a must be of average quality, size, and site that complies with local codes and capacity, taking into consideration the ordinances and part 9 of this Title. needs of the occupant. Repairs to the (ii) Adjustment to the sales price. primary residence are limited to res- FEMA may approve adjustments to the toration of the dwelling to a safe and sales price when selling a housing unit sanitary living or functioning condi- to the occupant of a unit if the pur- tion and may include: chaser is unable to pay the fair market (i) Repair or replacement of the value of the home or unit and when structural components, including foun- doing so is in the best interest of the dation, exterior walls, and roof; applicant and FEMA. (ii) Repair or replacement of the (iii) FEMA may sell a housing unit to structure’s windows and doors; the occupant only on the condition (iii) Repair or replacement of the that the purchaser agrees to obtain and structure’s Heating, Ventilation and maintain hazard insurance, as well as Air Conditioning System; flood insurance on the unit if it is or (iv) Repair or replacement of the will be in a designated Special Flood structure’s utilities, including elec- Hazard Area. trical, plumbing, gas, water and sewage (2) Other methods of disposal: systems; (i) FEMA may sell, transfer, donate, (v) Repair or replacement of the or otherwise make a unit available di- structure’s interior, including floors, rectly to a State or other govern- walls, ceilings, doors and cabinetry; mental entity, or to a voluntary orga- (vi) Repair to the structure’s access nization, for the sole purpose of pro- and egress, including privately owned viding temporary housing to disaster access road and privately owned bridge; victims in major disasters and emer- (vii) Blocking, leveling, and anchor- gencies. As a condition of the sale, ing of a mobile home, and reconnecting transfer, or donation, or other method

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of provision, the State, governmental meet the disaster-related necessary ex- entity, or voluntary organization must penses and serious needs of individuals agree to: and households. (A) Comply with the nondiscrimina- (ii) FEMA may provide financial as- tion provisions of the Stafford Act, 42 sistance for other items or services U.S.C. 5151; and that are not included in the specified (B) Obtain and maintain hazard in- categories for other assistance but surance on the unit, as well as flood in- which FEMA approves, in coordination surance if the housing unit is or will be with the State, as eligible to meet in a designated Special Flood Hazard unique disaster-related necessary ex- Area. penses and serious needs of individuals (ii) FEMA may also sell housing and households. units at a fair market value to any (c) Eligible costs—(1) Personal property. other person. Necessary expenses and serious needs (b) A unit will be sold ‘‘as is, where for repair or replacement of personal is’’, except for repairs FEMA deems property are generally limited to the necessary to protect health or safety, following: which are to be completed before the (i) Clothing; sale. There will be no implied warran- (ii) Household items, furnishings or ties. In addition, FEMA will inform the appliances; purchaser that he/she may have to (iii) Tools, specialized or protective bring the unit up to codes and stand- clothing, and equipment required by an ards that are applicable at the pro- employer as a condition of employ- posed site. ment; [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. (iv) Computers, uniforms, school- 9, 2002] books and supplies required for educational purposes; and § 206.119 Financial assistance to ad- (v) Cleaning or sanitizing any eligible dress other needs. personal property item. (a) Purpose. FEMA and the State may (2) Transportation. Necessary ex- provide financial assistance to individ- penses or serious needs for transpor- uals and households who have other tation are generally limited to the fol- disaster-related necessary expenses or lowing: serious needs. To qualify for assistance (i) Repairing or replacing vehicles; under this section, an applicant must and also: (ii) Financial assistance for public (1) Apply to the United States Small transportation and any other transpor- Business Administration’s (SBA) Dis- tation related costs or services. aster Home Loan Program for all avail- (3) Medical expenses. Medical expenses able assistance under that program; are generally limited to the following: and (i) Medical costs; (2) Be declined for SBA Disaster (ii) Dental costs; and Home Loan Program assistance; or (iii) Repair or replacement of medical (3) Demonstrate that the SBA assist- equipment. ance received does not satisfy their (4) Funeral expenses. Funeral expenses total necessary expenses or serious are generally limited to the following needs arising out of the major disaster. (i) Funeral services; (b) Types of assistance. (1) Medical, (ii) Burial or cremation; and dental, and funeral expenses. FEMA (iii) Other related funeral expenses. may provide financial assistance for (5) Moving and storage expenses. Nec- medical, dental and funeral items or essary expenses and serious needs re- services to meet the disaster-related lated to moving and storing personal necessary expenses and serious needs of property to avoid additional disaster individuals and households. damage generally include storage of (2) Personal property, transportation, personal property while disaster-re- and other expenses. lated repairs are being made to the pri- (i) FEMA may provide financial as- mary residence, and return of the per- sistance for personal property and sonal property to the individual or transportation items or services to household’s primary residence.

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(6) Other. Other disaster-related ex- that list to see if they are ineligible for penses not addressed in this section coverage. Those applicants who fail to may include: do this may find that their property is, (i) The purchase of a Group Flood In- in fact, not covered by the insurance surance Policy as described in para- policy when the next flooding incident graph (d) of this section. occurs and they file for losses. Once the (ii) Other miscellaneous items or applicants find that their damaged services that FEMA, in consultation buildings, contents, or both, are ineli- with the State, determines are nec- gible for coverage, they should notify essary expenses and serious needs. the NFIP in writing in order to have (d) Group Flood Insurance purchase. their names removed from the GFIP, Individuals identified by FEMA as eli- and to have the flood insurance main- gible for ‘‘Other Needs’’ assistance tenance requirement expunged from under section 408 of the Stafford Act as the data-tracking system. a result of flood damage caused by a [67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. Presidentially-declared major disaster 9, 2002] and who reside in a special flood hazard area (SFHA) may be included in a § 206.120 State administration of other Group Flood Insurance Policy (GFIP) needs assistance. established under the National Flood (a) State administration of other needs Insurance Program (NFIP) regulations assistance. A State may request a grant at 44 CFR 61.17. from FEMA to provide financial assist- (1) The premium for the GFIP is a ance to individuals and households in necessary expense within the meaning the State under § 206.119. The State of this section. FEMA or the State may also expend administrative costs shall withhold this portion of the Other not to exceed 5 percent of the amount Needs award and provide it to the NFIP of the grant in accordance with section on behalf of individuals and households 408(f)(1)(b) of the Stafford Act. Any who are eligible for coverage. The cov- State that administers the program to erage shall be equivalent to the max- provide financial assistance to individ- imum assistance amount established uals and households must administer under section 408 of the Stafford Act. the program consistent with § 206.119 (2) FEMA or the State IHP staff shall and the State Administrative Option provide the NFIP with records of indi- and the State Administrative Plan viduals who received an ‘‘Other Needs’’ that we describe at paragraph (b) and award and are to be insured through (c) of this section. the GFIP. Records of ‘‘Other Needs’’ (b) State administrative options. The applicants to be insured shall be ac- delivery of assistance under § 206.119 is companied by payments to cover the contingent upon the State choosing an premium amounts for each applicant administrator for the assistance. The for the 3-year policy term. The NFIP State may either request that FEMA will then issue a Certificate of Flood administer the assistance or the State Insurance to each applicant. Flood in- may request a grant from FEMA for surance coverage becomes effective on State administration. The Governor or the 30th day following the receipt of designee will execute the State Admin- records of GFIP insureds and their pre- istrative Option annually. During non- mium payments from the State or disaster periods the State may submit FEMA, and such coverage terminates any proposed amendments to the ad- 36 months from the inception date of ministrative option in writing to the the GFIP, which is 60 days from the FEMA Regional Director. FEMA shall date of the disaster declaration. review the request and respond to the (3) Insured applicants would not be Governor or his/her designee within 45 covered if they are determined to be in- days of receipt of the proposed amend- eligible for coverage based on a number ment; of exclusions established by the NFIP. (c) State Administrative Plan (SAP). Therefore, once applicants/policy- The delivery of assistance by a State holders receive the Certificate of Flood under this section is contingent upon Insurance that contains a list of the approval of a SAP, which describes the policy exclusions, they should review procedures the State will use to deliver

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assistance under section 408 of the gram administration and/or implemen- Stafford Act, 42 U.S.C. 5174, when a tation. State requests a grant to administer (3) Procedures for interaction with Other Needs assistance. All implemen- applicants: tation procedures must be in compli- (i) Procedures for notifying potential ance with Federal laws and require- applicants of the availability of the ments, State laws and procedures, and program, to include the publication of paragraphs (c) and (d) of this section. application deadlines, pertinent pro- (1) Timeframe for submission of SAP. A gram descriptions, and further program signed SAP, or renewal, must be pro- information on the requirements which vided to the FEMA Regional Director must be met by the applicant in order prior to November 30 of each year. A to receive assistance; SAP shall be effective for at least one (ii) Procedures for registration and year, and must be resubmitted in full acceptance of applications, including every three years. late applications, up to the prescribed (2) Renewals. Annual updates/revi- time limitations as described in sions to the SAP must be submitted by § 206.112; November 30 of each year for FEMA’s (iii) Procedures for damage inspec- review and approval by December 31. If tion and/or other verifications. the SAP does not need to be updated/ (iv) Eligibility determinations. revised, a letter from the State stating (A) Under a cooperative agreement: The the SAP is still current must be sub- procedure for eligibility determina- mitted by November 30 to document tions when the FEMA application and the SAP submission requirement. inspection systems are used by the (3) Amendments. The State may re- State but additional eligibility criteria quest amendments to the SAP at any are necessary to make State eligibility time. An amendment is effective upon determinations. signature by the FEMA Regional Di- (B) Under a grant: The procedure for rector and the Governor or his/her des- eligibility determinations when the ignee. The State may request an FEMA application and inspection sys- amendment to the administrative plan tems are not used by the State, includ- as follows: ing the method for determination of (i) During non-disaster periods. The costs for personal property and provi- State may submit any proposed amend- sion of a standard list for personal ments to the SAP in writing to the property items with allowable costs FEMA Regional Director. FEMA shall identified for each item. review the request and respond to the (v) Procedures for checking compli- Governor or his/her designee within 45 ance for mandated flood insurance in days of receipt of the proposed amend- accordance with § 206.110(k); ment; (vi) Procedures for notifying appli- (ii) During Presidentially-declared dis- cants of the State’s eligibility decision; asters. The State shall submit any pro- (vii) Procedures for disbursement of posed amendments to the SAP in writ- funds to applicants; ing to FEMA within three days after (viii) Procedures for applicant appeal disaster declaration. FEMA shall re- processing. Procedures must provide view the request and respond to the for any appealable determination as Governor or his/her designee within identified in § 206.115(a); three days of receipt. (ix) Procedures for expeditious re- (d) State administrative plan require- porting of allegations of fraud, waste ments. The State shall develop a plan or abuse to FEMA Office of Inspector for the administration of the Other General. Needs assistance that describes, at a (x) Capacity to investigate allega- minimum, the following items: tions of waste, fraud and abuse inde- (1) Assignment of grant program re- pendently if requested by FEMA OIG, sponsibilities to State officials or agen- or in conjunction with FEMA OIG. cies. (xi) Provisions for safeguarding the (2) Staffing Schedule that identifies privacy of applicants and the confiden- the position, salary and percent of time tiality of information, in accordance for each staff person assigned to pro- with § 206.110(j).

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(xii) Provisions for complying with plication or to modify it so it can be § 206.116(b), Recovery of funds. approved. (4) Procedures for financial manage- (2) The application shall include: ment, accountability and oversight. (i) Standard Form (SF) 424, Applica- (i) Procedures for verifying by ran- tion for Federal Assistance; dom sample that assistance funds are (ii) FEMA Form (FF) 20–20 Budget In- meeting applicants’ needs, are not du- formation—Non Construction Pro- plicating assistance from other means, grams; and are meeting flood insurance re- (iii) Copy of approved indirect cost quirements. rate from a Federal cognizant agency if (ii) Provisions for specifically identi- indirect costs will be charged to the fying, in the accounts of the State, all grant. Indirect costs will be included in Federal and State funds committed to the administrative costs of the grant each grant program; and for imme- allowed under paragraph (a) of this sec- diately returning, upon discovery, all tion; and Federal funds that are excess to pro- (iv) Disaster specific changes to the gram needs. State Administrative Plan, if applica- (iii) Provisions for accounting for ble. cash in compliance with State law and (f) Grants management oversight—(1) procedure and the Cash Management Period of assistance. All costs must be Improvement Act of 1990, as amended. incurred within the period of assist- (iv) Reports. ance, which is 18 months from the date of the disaster declaration. This period (A) Procedures for preparing and sub- of assistance may be extended if re- mitting quarterly and final Financial quested in writing by the State and ap- Status Reports in compliance with 44 proved in writing by the FEMA Asso- CFR 13.41. ciate Director. The State must include (B) Procedures for submitting Pro- a justification for an extension of the gram Status Reports in compliance assistance period. with paragraph (f)(2)(iii) of this sec- (2) Reporting requirements. (i) The tion. State shall provide financial status re- (C) Procedures for preparing and sub- ports, as required by 44 CFR 13.41. mitting the PSC 272, Federal Cash (ii) The State shall provide copies of Transactions Report. PSC 272, Federal Cash Transactions Re- (v) Procedures for inventory control, port to FEMA. The PSC 272 is required including a system for identifying and quarterly by the Department of Health tracking placement of equipment pur- and Human Services from users of its chased with grant funds or loaned by SMARTLINK service. FEMA to the State for purposes of ad- (iii) The State shall provide weekly ministering the Individuals and House- program status reports which include holds Program. the number and dollar amount of appli- (vi) Procedures for return of funds to cations approved, the amount of assist- FEMA. ance disbursed and the number of ap- (vii) State criteria and requirements peals received. for closing out Federal grants. (3) Ineligible costs. Funds provided to (viii) Process for retention of records. the State for the administrative costs (e) Application for assistance procedure. of administering Other Needs assist- This section describes the procedures ance shall not be used to pay regular that must be followed by the State to time for State employees, but may be submit an application to administer used to pay overtime for those employ- the Individuals and Households Pro- ees. gram through a Grant Award or a Co- (4) Closeout. The State has primary operative Agreement. responsibility to closeout the tasks ap- (1) The State must submit an Other proved under the Grant Award. In com- Needs assistance application to the Re- pliance with the period of assistance, gional Director within 72 hours of the as identified in the award, the State major disaster declaration before IHP must reconcile costs and payments, re- assistance may be provided. FEMA will solve negative audit findings, and sub- work with the State to approve the ap- mit final reports within 90 days of the

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end of the period of assistance. The the three-year record retention period State must also provide an inventory and for returning disallowed costs from of equipment purchased with grant ineligible activities. funds and loaned to it by FEMA for [67 FR 61452, Sept. 30, 2002; 67 FR 62896, 62897, purposes of administering IHP, which Oct. 9, 2002] lists the items, dates, and costs of equipment purchased. §§ 206.121–206.130 [Reserved] (5) Recovery of funds. The State is responsible for recovering assistance Subpart E—Individual and Family awards from applicants obtained fraud- Grant Programs ulently, expended for unauthorized items or services, expended for items § 206.131 Individual and Family Grant for which assistance is received from Program for major disasters de- other means, and awards made in error. clared on or before October 14, (i) Adjustments to expenditures will 2002. be made as funding is recovered and (a) General. The Governor may re- will be reported quarterly on the Fi- quest that a Federal grant be made to nancial Status Report. a State for the purpose of such State (ii) A list of applicants from whom making grants to individuals or fami- recoveries are processed will be sub- lies who, as a result of a major dis- mitted on the quarterly progress report aster, are unable to meet disaster-re- to allow FEMA to adjust its program lated necessary expenses or serious and financial information systems. needs for Presidentially-declared major (iii) The State will reimburse FEMA disasters declared on or before October for the Federal share of awards not re- 14, 2002 (Note that the reference to sec- covered through quarterly financial ad- tion 411 of the Stafford Act refers to justments within the 90 day close out prior legislation amended by the Dis- liquidation period of the grant award. aster Mitigation Act 2000). The total (iv) If the State does not reimburse Federal grant under this section will be FEMA within the 90 day close out liq- equal to 75 percent of the actual cost of uidation period, a bill for collection meeting necessary expenses or serious will be issued. FEMA will charge inter- needs of individuals and families, plus est, penalties, and administrative fees State administrative expenses not to on delinquent bills for collection in ac- exceed 5 percent of the Federal grant cordance with the Debt Collection Im- (see paragraph (g) of this section). The provement Act. Recovered funds, inter- total Federal grant is made only on est, penalties, and fees owed to FEMA condition that the remaining 25 per- through delinquent bills for collection cent of the actual cost of meeting indi- may be offset from other FEMA dis- viduals’ or families’ necessary expenses aster assistance programs from which or serious needs is paid from funds the State is receiving funds or future made available by the State. With re- grant awards from FEMA or other Fed- spect to any one major disaster, an in- eral agencies. Debt collection proce- dividual or family may not receive a dures will be followed as outlined in 44 grant or grants under this section to- CFR part 11. taling more than $10,000 including both (6) Audit requirements. Pursuant to 44 the Federal and State shares. The CFR 13.26, uniform audit requirements $10,000 limit will be adjusted annually, apply to all grants provided under this at the beginning of each fiscal year, to subpart. reflect changes in the Consumer Price (7) Document retention. Pursuant to 44 Index for all Urban Consumers. IFG as- CFR 13.42, States are required to retain sistance for damages or losses to real records, including source documenta- or personal property, or both, will be tion, to support expenditures/costs in- provided to individuals or families with curred against the grant award, for 3 those IFG-eligible losses totaling $201 years from the date of submission to or more; those individuals with dam- FEMA of the final Financial Status Re- ages or losses of $200 or less to real or port. The State is responsible for re- personal property, or both, are ineli- solving questioned costs that may re- gible. The Governor or his/her designee sult from an audit conducted during is responsible for the administration of

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the grant program. The provisions of the Internal Revenue Code. It may also this regulation are in accordance with mean the minor children of a couple 44 CFR Part 13, Uniform Administra- not living together where the children tive Requirements for Grants and Co- live in the affected residence with the operative Agreements to State and parent who does not actually claim Local Governments. them on the tax return. (b) Purpose. The grant program is in- (6) Expendable items means tended to provide funds to individuals consumables, as follows: linens, or families to permit them to meet clothes, and basic kitchenware (pots, those disaster-related necessary ex- pans, utensils, dinnerware, flatware, penses or serious needs for which as- small kitchen appliances). sistance from other means is either un- (7) Assistance from other means means available or inadequate. Meeting those assistance including monetary or in- expenses and needs as expeditiously as kind contributions, from other govern- possible will require States to make an mental programs, insurance, voluntary early commitment of personnel and re- or charitable organizations, or from sources. States may make grants in in- any sources other than those of the instances where the applicant has not re- dividual or family. It does not include ceived other benefits to which he/she expendable items. may be entitled by the time of applica- (8) Owner-occupied means that the tion to the IFG program, and if the ap- residence is occupied by: The legal plicant agrees to repay all duplicated owner; a person who does not hold for- assistance to the State. The grant pro- mal title to the residence but is respon- gram is not intended to indemnify dis- sible for payment of taxes, mainte- aster losses or to permit purchase of nance of the residence, and pays no items or services which may generally rent; or a person who has lifetime occu- be characterized as nonessential, lux- pancy rights in the residence with for- ury, or decorative. Assistance under mal title vested in another. In States this program is not to be counted as in- where documentation proving owner- come or a resource in the determina- ship is not recorded or does not exist, tion of eligibility for welfare or other the State is required to include in its income-tested programs supported by administrative plan a State Attorney the Federal Government, in that IFG General approved set of conditions de- assistance is intended to address only scribing adequate proof of ownership. disaster-related needs. (9) Flowage easement means an area (c) Definitions used in this section. (1) where the landowner has given the Necessary expense means the cost of a right to overflow, flood, or submerge serious need. the land to the government or other (2) Serious need means the require- entity for a public purpose. ment for an item or service essential to (d) National eligibility criteria. In ad- an individual or family to prevent, ministering the IFG program, a State mitigate, or overcome a disaster-re- shall determine the eligibility of an in- lated hardship, injury, or adverse con- dividual or family in accordance with dition. the following criteria; (3) Family means a social unit living (1) General. (i) To qualify for a grant together and composed of: under this section, an individual or (i) Legally married individuals or family representative must: those couples living together as if they (A) Make application to all applica- were married and their dependents; or ble available governmental disaster as- (ii) A single person and his/her de- sistance programs for assistance to pendents; or meet a necessary expense or serious (iii) Persons who jointly own the res- need, and be determined not qualified idence and their dependents. for such assistance, or demonstrate (4) Individual means anyone who is that the assistance received does not not a member of a family as described satisfy the total necessary expense or above. serious need; (5) Dependent means someone who is (B) Not have previously received or normally claimed as such on the Fed- refused assistance from other means eral tax return of another, according to for the specific necessary expense or

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serious need, or portion thereof, for those applicable governmental disaster which application is made; and assistance programs which were avail- (C) Certify to refund to the State able during the original application pe- that part of the grant for which assist- riod are available to the grant appli- ance from other means is received, or cants during the extended application which is not spent as identified in the period. grant award document. (C)(1) The State may not make a (ii) Individuals and families who grant for acquisition or construction incur a necessary expense or serious purposes in a designated special flood need in the major disaster area may be hazard area in which the sale of flood eligible for assistance under this sec- insurance is available under the NFIP tion without regard to their alienage, unless the individual or family obtains their residency in the major disaster adequate flood insurance and main- area, or their residency within the tains such insurance for as long as they State in which the major disaster has live at that property address. The cov- been declared except that for assist- erage shall equal the maximum grant ance in the ‘‘housing’’ category, owner- amount established under § 411(f) of the ship and residency in the declared dis- Stafford Act. If the grantee is a home- aster area are required (see paragraph owner, flood insurance coverage must (d)(2)(i) of this section). be maintained on the residence at the (iii) The Flood Disaster Protection flood-damaged property address for as Act of 1973, Public Law 93–234, as long as the structure exists if the amended, imposes certain restriction grantee, or any subsequent owner of on approval of Federal financial assist- that real estate, ever wishes to be as- ance for acquisition and construction sisted by the Federal government with purposes. This paragraph states those any subsequent flood damages or losses requirements for the IFG program. to real or personal property, or both. If (A) For the purpose of this para- the grantee is a renter, flood insurance graph, financial assistance for acquisition coverage must be maintained on the or construction purposes means a grant contents for as long as the renter re- to an individual or family to repair, resides at the flood-damaged property ad- place, or rebuild the insurable portions dress. The restriction is lifted once the of a home, and/or to purchase or repair renter moves from the rental unit. insurable contents. For a discussion of (2) Individuals named by a State as what elements of a home and contents eligible recipients under § 411 of the are insurable, see 44 CFR part 61, Insur- Stafford Act for an IFG program award ance Coverage and Rates. for flood damage as a result of a Presi- (B) A State may not make a grant for dential major disaster declaration will acquisition or construction purposes be included in a Group Flood Insurance where the structure to which the grant Policy (GFIP) established under the assistance relates is located in a des- National Flood Insurance Program ignated special flood hazard area which (NFIP) regulations, at 44 CFR 61.17. has been identified by the Director for (i) The premium for the GFIP is a at least 1 year as floodprone, unless the necessary expense within the meaning community in which the structure is of this section. The State shall with- located is participating in the National hold this portion of the IFG award and Flood Insurance Program (NFIP). How- provide it to the NFIP on behalf of in- ever, if a community qualifies for and dividuals and families who are eligible enters the NFIP during the 6-month pe- for coverage. The coverage shall be riod following the major disaster dec- equivalent to the maximum grant laration, the Governor’s Authorized amount established under § 411(f) of the Representative (GAR) may request a Stafford Act. time extension (see paragraph (j)(1)(ii) (ii) The State IFG program staff shall of this section) from the Regional Di- provide the NFIP with records of indi- rector for the purpose of accepting and viduals who received an IFG award and processing grant applications in that are, therefore, to be insured. Records of community. The Regional Director or IFG grantees to be insured shall be ac- Associate Director, as appropriate, companied by payments to cover the may approve the State’s request if premium amounts for each grantee for

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the 3-year policy term. The NFIP will (iv) In order to comply with the then issue a Certificate of Flood Insur- President’s Executive Orders on Flood- ance to each grantee. Flood insurance plain Management (E.O. 11988) and Pro- coverage becomes effective on the 30th tection of Wetlands (E.O. 11990), the day following the receipt of records of State must implement the IFG pro- GFIP insureds and their premium pay- gram in accordance with FEMA regula- ments from the State, and terminates tions 44 CFR part 9. That part specifies 36 months from the inception date of which IFG program actions require a the GFIP, i.e., 60 days from the date of floodplain management decision- the disaster declaration. making process before a grant may be (iii) Insured grantees would not be made, and also specifies the steps to covered if they are determined to be in- follow in the decisionmaking process. eligible for coverage based on a number Should the State determine that an in- of exclusions established by the NFIP. dividual or family is otherwise eligible Therefore, once grantees/policyholders for grant assistance, the State shall ac- receive the Certificate of Flood Insur- complish the necessary steps in accordance that contains a list of the policy ance with that section, and request the exclusions, they should review that list Regional Director to make a final to see if they are ineligible for cov- floodplain management determination. erage. Those grantees who fail to do (2) Eligible categories. Assistance this may find that their property is, in under this section shall be made avail- fact, not covered by the insurance pol- able to meet necessary expenses or se- icy when the next flooding incident oc- rious needs by providing essential curs and they file for losses. Once the items or services in the following cat- grantees find that their damaged build- egories: ings, contents, or both, are ineligible (i) Housing. With respect to primary for coverage, they should notify the residences (including mobile homes) NFIP in writing in order to have their which are owner-occupied at the time names removed from the GFIP, and to of the disaster, grants may be author- have the flood insurance maintenance ized to: requirement expunged from the NFIP (A) Repair, replace, or rebuild; data-tracking system. (If the grantee (B) Provide access. When an access wishes to refer to or review a Standard serves more than one individual or Flood Insurance Policy, it will be made family, an owner-occupant whose pri- available by the NFIP upon request.) mary residence is served by the access (D) A State may not make a grant to may be eligible for a proportionate any individual or family who received share of the cost of jointly repairing or Federal disaster assistance for flood providing such access. The owner-occu- damage occurring after September 23, pant may combine his/her grant funds 1994, if that property has already re- with funds made available by the other ceived Federal flood-disaster assistance individuals or families if a joint use in a disaster declared after September agreement is executed (with no cost or 23, 1994, a flood insurance purchase and charge involved) or if joint ownership maintenance requirement was levied as of the access is agreed to; a condition or result of receiving that (C) Clean or make sanitary; Federal disaster assistance, and flood (D) Remove debris from such resi- insurance was, in fact, not maintained dences. Debris removal is limited to in an amount at least equal to the the minimum required to remove maximum IFG grant amount. However, health or safety hazards from, or pro- if that property was determined to be tect against additional damage to the ineligible for NFIP flood insurance cov- residence; erage and is in a special flood hazard (E) Provide or take minimum protec- area located in a community partici- tive measures required to protect such pating in the NFIP, then the State residences against the immediate may continue to make grants to those threat of damage, which means that individuals or families that receive ad- the disaster damage is causing a poten- ditional damage in all subsequent tial safety hazard and, if not repaired, Presidentially declared major disasters will cause actual safety hazards from involving floods. common weather or environmental

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events (example: additional rain, flood- ance. If such a determination is made, ing, erosion, wind); and the State must summarize the facts of (F) Minimization measures required the case and thoroughly document its by owner-occupants to comply with the findings of eligibility. Should the State provision of 44 CFR part 9 (Floodplain require technical assistance in making Management and Protection of Wet- a determination of eligibility, it may lands), to enable them to receive as- provide a factual summary to the Re- sistance from other means, and/or to gional Director and request guidance. enable them to comply with a commu- The Associate Director also may deter- nity’s floodplain management regula- mine that other necessary expenses tions. and serious needs are eligible for grant (ii) Personal property. Proof of own- assistance. Following such a deter- ership of personal property is not re- mination, the Associate Director shall quired. This category includes: advise the State, through the Regional (A) Clothing; Director, and provide the necessary (B) Household items, furnishings, or program guidance. appliances. If a predisaster renter re- (3) Ineligible categories. Assistance ceives a grant for household items, fur- under this section shall not be made nishings, or appliances and these items available for any item or service in the are an integral part of mobile home or following categories: other furnished unit, the predisaster (i) Business losses, including farm renter may apply the funds awarded for businesses and self-employment; these specific items toward the pur- (ii) Improvements or additions to chase of the furnished unit, and toward real or personal property, except those mobile home site development, towing, required to comply with paragraph set-up, connecting and/or reconnecting; (d)(2)(i)(F) of this section; (C) Tools, specialized or protective (iii) Landscaping; clothing, and equipment which are re- (iv) Real or personal property used quired by an employer as a condition of exclusively for recreation; and employment; (v) Financial obligations incurred (D) Repairing, cleaning or sanitizing prior to the disaster. any eligible personal property item; (4) Verification. The State will be pro- and vided most verification data on IFG ap- (E) Moving and storing to prevent or plicants who were not required to first reduce damage. apply to the SBA. The FEMA Regional (iii) Transportation. Grants may be Director shall be responsible for per- authorized to repair, replace, or pro- forming most of the required vide privately owned vehicles or to pro- verifications in the categories of hous- vide public transportation. ing (to include documentation of home (iv) Medical or dental expenses. ownership and primary residency); per- (v) Funeral expenses. Grants may in- sonal property; and transportation (to clude funeral and burial (and/or crema- include notation of the plate or title tion) and related expenses. number of the vehicle; the State may (vi) Cost of the first year’s flood in- wish to follow up on this). Certain surance premium to meet the require- verifications may still be required to ment of this section. be performed by the State, such as on (vii) Costs for estimates required for late applicants or reverifications, when eligibility determinations under the FEMA or its contractors are no longer IFG program. Housing and personal available, and on medical/dental, fu- property estimates will be provided by neral and ‘‘other’’ categories. Eligi- the government. However, an applicant bility determination functions shall be may appeal to the State if he/she feels performed by the State. The SBA will the government estimate is inaccurate. provide copies of verification per- The cost of an applicant-obtained esti- formed by SBA staff on housing and mate to support the appeal is not an el- personal property (including vehicles) igible cost. for those applicants who were first re- (viii) Other. A State may determine quired to apply to SBA. This will en- that other necessary expenses and seri- able the State to make an eligibility ous needs are eligible for grant assist- determination on those applicants.

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When an applicant disagrees with the (I) Disbursing grants in a timely grant award, he/she may appeal to the manner; State. The cost of any estimate pro- (J) Verifying by random sample that vided by the applicant in support of grant funds are meeting applicants’ his/her appeal is not eligible under the needs, are not duplicating assistance program. from other means, and are meeting (e) State administrative plan. (1) The floodplain management and flood in- State shall develop a plan for the ad- surance requirements. Guidance on the ministration of the IFG program that sample size will be provided by the Re- includes, as a minimum, the items list- gional Director; ed below. (K) Recovering grant funds obtained (i) Assignment of grant program re- fraudulently, expended for unauthor- sponsibilities to State officials or agen- ized items or services, expended for cies. items for which assistance is received (ii) Procedures for: from other means, or authorized for ac- (A) Notifying potential grant appli- quisition or construction purposes cants of the availability of the pro- where proof of purchase of flood insur- gram, to include the publication of ap- ance is not provided to the State. Ex- plication deadlines, pertinent program cept for those mentioned in the pre- descriptions, and further program in- vious sentence, grants made properly formation on the requirements which by the State on the basis of federally must be met by the applicant in order sponsored verification information are to receive assistance; not subject to recovery by the State, (B) Participating with FEMA in the i.e., FEMA will not hold the State re- registration and acceptance of applica- sponsible for repaying to FEMA the tions, including late applications, up to Federal share of those grants. The the prescribed time limitations; State is responsible for its 25 percent (C) Reviewing verification data pro- share of those grants. As an attach- vided by FEMA and performing ment to its voucher, the State must verifications for medical, dental, fu- identify each case where recovery ac- neral, and ‘‘other’’ expenses, and also tions have been taken or are to be for all grant categories in the instance taken, and the steps taken or to be of late applications and appeals. FEMA taken to accomplish recovery; will perform any necessary (L) Conducting any State audits that reverifications while its contract per- might be performed in compliance with sonnel are in the disaster area, and the the Single Audit Act of 1984; and ensur- State will perform any others; ing that appropriate corrective action (D) Determining applicant eligibility is taken within 6 months after receipt and grant amounts, and notifying ap- of the audit report in instances of non- plicants of the State’s decision; compliance with Federal laws and reg- (E) Determining the requirement for ulations; flood insurance; (M) Reporting to the Regional Direc- (F) Preventing duplication of bene- tor, and to the Federal Coordinating fits between grant assistance and as- Officer as required; and sistance from other means; (N) Reviewing and updating the plan (G) At the applicant’s request, and at each January. the State’s option, reconsidering the (iii) National eligibility criteria as State’s determinations; defined in paragraph (d) of this section. (H) Processing applicant appeals, rec- (iv) Provisions for compliance with 44 ognizing that the State has final au- CFR part 13, Uniform Administrative thority. Such procedures must provide Requirements for Grants and Coopera- for: tive Agreements to State and Local (1) The receipt of oral or written evi- Governments; 44 CFR part 11, Claims; dence from the appellate or representa- the State’s own debt collection proce- tive; dures; and all applicable Federal laws (2) A determination on the record; and regulations. and (v) Pertinent time limitations for ac- (3) A decision by an impartial person cepting applications, grant award ac- or board; tivities, and administrative activities,

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to comply with Federal time limita- emergency plan, as described in sub- tions. part A of these regulations. (vi) Provisions for specifically identi- (f) State initiation of the IFG program. fying, in the accounts of the State, all To make assistance under this section Federal and State funds committed to available to disaster victims, the Gov- each grant program; for repaying the ernor must, either in the request of the loaned State share as of the date President for a major disaster declara- agreed upon in the FEMA-State Agree- tion or by separate letter to the Re- ment; and for immediately returning, gional Director, express his/her inten- upon discovery, all Federal funds that tion to implement the program. This are excess to program needs. expression of intent must include an (vii) Provisions for safeguarding the estimate of the size and cost of the pro- privacy of applicants and the confiden- gram. In addition, this expression of in- tiality of information, except that the tent represents the Governor’s agree- information may be provided to agen- ment to the following: cies or organizations who require it to (1) That the program is needed to sat- make eligibility decisions for assist- isfy necessary expenses and serious ance programs, or to prevent duplica- needs of disaster victims which cannot tion of benefits, to State agencies re- otherwise be met; sponsible for audit or program review, (2) That the State will pay its 25 per- and to FEMA or the General Account- cent share of all grants to individuals ing Office for the purpose of making and families; audits or conducting program reviews. (3) That the State will return imme- (viii) A section identifying the man- diately upon discovery advanced Fed- agement and staffing functions in the eral funds that exceed actual require- IFG program, the sources of staff to fill ments; these functions, and the management (4) To implement an administrative and oversight responsibilities of: plan as identified in paragraph (e) of (A) The GAR; this section; (B) The department head responsible for the IFG program; (5) To implement the grant program (C) The Grant Coordinating Officer, throughout the area designated as eli- i.e., the State official assigned manage- gible for assistance by the Associate ment responsibility for the IFG pro- Director; and gram; and (6) To maintain close coordination (D) The IFG program manager, where with and provide reports to the Re- management responsibilities are as- gional Director. signed to such a person on a day-to-day (g) Funding. (1) The Regional Direc- basis. tor may obligate the Federal share of (2) The Governor or his/her designee the IFG program based upon the deter- may request the Regional Director to mination that: provide technical assistance in the (i) The Governor has indicated the in- preparation of an administrative plan tention to implement the program, in to implement this program. accordance with paragraph (f) of this (3) The Governor shall submit a re- section; vised State administrative plan each (ii) The State’s administrative plan January to the Regional Director. The meets the requirements of this section Regional Director shall review and ap- and current policy guidance; and prove the plan annually. In each dis- (iii) There is no excess advance of the aster for which assistance under this Federal share due FEMA from a prior section is requested, the Regional Di- IFG program. The State may eliminate rector shall request the State to pre- any such debt by paying it imme- pare any amendments required to meet diately, or by accepting an offset of the current policy guidance. The Regional owed funds against other funds payable Director must then work with the by FEMA to the State. When the ex- State until the plan and amendment(s) cess Federal share has been repaid, the are approved. Regional Director may then obligate (4) The State shall make its approved funds for the Federal share for the cur- administrative plan part of the State rent disaster.

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(2) The Regional Director may in- riod of 60 days following the declara- crease the State’s letter of credit to tion, and for no longer than 30 days meet the Federal share of program thereafter when the State determines needs if the above conditions are met. that extenuating circumstances beyond The State may withdraw funds for the the applicants’ control (such as, but Federal share in the amount made not limited to, hospitalization, illness, available to it by the Regional Direc- or inaccessibility to application cen- tor. Advances to the State are gov- ters) prevented them from applying in erned by 44 CFR 13.21, Payment. a timely manner. Exception: If appli- (3) The Regional Director may lend cants exercising their responsibility to to the State its share in accordance first apply to the Small Business Ad- with subpart A of these regulations. ministration do so after SBA’s dead- (4) Payable costs are governed by 44 line, and SBA accepts their case for CFR 13.22, Allowable Costs, and the as- processing because of ‘‘substantial sociated OMB Circular A–87, Cost Prin- causes essentially beyond the control ciples for State and Local Govern- of the applicant,’’ and provides a for- ments. Also, the costs must be in ac- mal decline or insufficient loan based cordance with the national eligibility on lack of repayment ability, unsatis- criteria stated in paragraph (d) of this factory credit, or unsatisfactory expe- section, and the State’s administrative rience with prior loans (i.e., the rea- plan, as stated in paragraph (e) of this sons a loan denial client would nor- section. The Federal contribution to mally be eligible for IFG assistance), this program shall be 75 percent of pro- then such an application referred to gram costs and shall be made in ac- the State by the SBA is considered as cordance with 44 CFR 13.25, Matching meeting the IFG filing deadline. The or Cost-Sharing. State may then apply its own criteria (h) Final payment. Final payment to in determining whether to process the the State for the Federal share of the case for grant assistance. The State IFG program plus administrative costs, automatically has an extension of time is governed by 44 CFR l3.21, Payment, to complete the processing, eligibility, and 44 CFR 13.50, Closeout. The voucher and disbursement functions. However, is Standard Form 270, Request for Ad- the State must still complete all advance or Reimbursement). A separate ministrative activity within the 270- voucher for the State share will be pre- day period described in this section. pared, to include all disaster programs (iii) The State shall complete all for which the State is requesting a loan grant award activity, including eligi- of the nonFederal share. The FEMA bility determinations, disbursement, Regional Director will analyze the and disposition of State level appeals, voucher and approve, disapprove, or suspend approval until deficiencies are within 180 days following the declara- corrected. tion date. The Regional Director shall (i) Audits. The State should perform suspend all grant awards disbursed the audits required by the Single Audit after the specified completion date; Act of 1984. Refer to 44 CFR part 14, Ad- and ministration of Grants; Audits of State (iv) The State shall complete all ad- and Local Governments, which imple- ministrative activities and submit ments OMB Circular A–128 regarding final reports and vouchers to the Re- audits. All programs are subject to gional Director within 90 days of the Federal audit. completion of all grant award activity. (j) Time limitations. (1) In the adminis- (2) The GAR may submit a request tration of the IFG program: with appropriate justification for the (i) The Governor shall indicate his/ extension of any time limitation. The her intention to implement the IFG Regional Director may approve the re- program no later than 7 days following quest for a period not to exceed 90 the day on which the major disaster days. The Associate Director may ap- was declared and in the manner set prove any request for a further exten- forth in paragraph (f) of this section; sion of the time limitations. (ii) Applications shall be accepted (k) Appeals—(1) Bills for collection from individuals or families for a pe- (BFC’s). The State may appeal the

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issuance of a BFC by the Regional Di- 44 CFR 13.52, Collection of Amounts rector. Such an appeal shall be made in Due. writing within 60 days of the issuance [54 FR 11615, Mar. 21, 1989, as amended at 55 of the bill. The appeal must include in- FR 28627, July 12, 1990; 60 FR 7130, Feb. 7, formation justifying why the bill is in- 1995; 61 FR 19201, May 1, 1996; 67 FR 61460, correct. The Regional Director shall re- Sept. 30, 2002] view the material submitted and notify the State, in writing, within 15 days of §§ 206.132–206.140 [Reserved] receipt of the appeal, of his/her decision. Interest on BFC’s starts accruing Subpart F—Other Individual on the date of issuance of the BFC, but Assistance is not charged if the State pays within 30 days of issuance. If the State is suc- § 206.141 Disaster unemployment as- cessful in its appeal, interest will not sistance. be charged; if unsuccessful, interest is The authority to implement the dis- due and payable, as above. aster unemployment assistance (DUA) (2) Other appeals. The State may ap- program authorized by section 410 of peal any other decision of the regional the Stafford Act, and the authority to Director. Such appeals shall be made in issue regulations, are currently dele- writing within 60 days of the Regional gated to the Secretary of Labor. Director’s decision. The appeal must §§ 206.142–206.150 [Reserved] include information justifying a reversal of the decision. The Regional Direc- § 206.151 Food commodities. tor shall review the material submitted and notify the State, in writing, within (a) The Associate Director will assure 15 days of receipt of the appeal, of his/ that adequate stocks of food will be ready and conveniently available for her decision. emergency mass feeding or distribution (3) Appeals to the Associate Director. in any area of the United States which The State may further appeal the Re- suffers a major disaster or emergency. gional Director’s decisions to the Asso- (b) In carrying out the responsibil- ciate Director. This appeal shall be ities in paragraph (a) of this section, made in writing within 60 days of the the Associate Director may direct the Regional Director’s decision. The ap- Secretary of Agriculture to purchase peal must include information justi- food commodities in accordance with fying a reversal of the decision. The authorities prescribed in section 413(b) Associate Director shall review the ma- of the Stafford Act. terial submitted and notify the State, in writing, within 15 days of receipt of §§ 206.152–206.160 [Reserved] the appeal, of his/her decision. (l) Exemption from garnishment. All § 206.161 Relocation assistance. proceeds received or receivable under Notwithstanding any other provision the IFG program shall be exempt from of law, no person otherwise eligible for garnishment, seizure, encumbrance, any kind of replacement housing pay- levy, execution, pledge, attachment, ment under the Uniform Relocation release, or waiver. No rights under this Assistance and Real Property Acquisi- provision are assignable or transfer- tion Policies Act of 1970 (Pub. L. 91–646) able. The above exemptions will not shall be denied such eligibility as a re- apply to the requirement imposed by sult of his being unable, because of a paragraph (e)(1)(ii)(K) of this section. major disaster as determined by the President, to meet the occupancy re- (m) Debt collection. If the State has quirements set by such Act. been unable to recover funds as stated in paragraph (e)(1)(k) of this section, §§ 206.162–206.163 [Reserved] the Regional Director shall institute debt collection activities against the § 206.164 Disaster legal services. individual according to the procedures (a) Legal services, including legal ad- outlined in 44 CFR part 11, Claims, and vice, counseling, and representation in

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non fee-generating cases, except as pro- standards of conduct of their respective vided in paragraph (b) of this section, agencies or departments; may be provided to low-income individ- (3) Use of private lawyers who may be uals who require them as a result of a paid by the Federal Emergency Man- major disaster. For the purpose of this agement Agency when the Regional Di- section, low-income individuals means rector has determined that there is no those disaster victims who have insuf- other means of obtaining adequate ficient resources to secure adequate legal assistance for qualified disaster legal services, whether the insuffi- victims; or ciency existed prior to or results from (4) Any other arrangement the Re- the major disaster. In cases where gional Director deems appropriate. questions arise about the eligibility of The Associate Director shall coordi- an individual for legal services, the Re- nate with appropriate Federal agencies gional Director or his/her representa- and the appropriate national, state and tive shall make a determination. local bar associations, as necessary, in (b) Disaster legal services shall be the implementation of the disaster provided free to such individuals. Fee- legal services programs. generating cases shall not be accepted (d) In the event it is necessary for by lawyers operating under these regu- FEMA to pay lawyers for the provision lations. For purposes of this section, a of legal services under these regula- fee-generating case is one which would tions, the Regional Director, in con- not ordinarily be rejected by local law- sultation with State and local bar asso- yers as a result of its lack of potential ciations, shall determine the amount of remunerative value. Where any ques- reimbursement due to the lawyers who tion arises as to whether a case is fee- have provided disaster legal services at generating as defined in this section, the request of the Regional Director. the Regional Director or his/her rep- At the Regional Director’s discretion, resentative, after any necessary con- administrative costs of lawyers pro- sultation with local or State bar asso- viding legal services requested by him ciations, shall make the determina- or her may also be paid. tion. Any fee-generating cases shall be (e) Provision of disaster legal serv- referred by the Regional Director or ices is confined to the securing of bene- his/her representative to private law- fits under the Act and claims arising yers, through existing lawyer referral out of a major disaster. services, or, where that is impractical (f) Any disaster legal services shall or impossible, the Regional Director be provided in accordance with subpart may provide a list of lawyers from A of these regulations, Non-discrimina- which the disaster victim may choose. tion in disaster assistance. Lawyers who have rendered voluntary legal assistance under these regula- §§ 206.165–206.170 [Reserved] tions are not precluded from taking fee-generating cases referred to them § 206.171 Crisis counseling assistance in this manner while in their capacity and training. as private lawyers. (a) Purpose. This section establishes (c) When the Regional Director deter- the policy, standards, and procedures mines after any necessary consultation for implementing section 416 of the with the State Coordinating Officer, Act, Crisis Counseling Assistance and that implementation of this section is Training. FEMA will look to the Direc- necessary, provision of disaster legal tor, National Institute of Mental services may be accomplished by: Health (NIMH), as the delegate of the (1) Use of volunteer lawyers under Secretary of the Department of Health the terms of appropriate agreements; and Human Services (DHHS). (2) Use of Federal lawyers, provided (b) Definitions. (1) Assistant Associate that these lawyers do not represent an Director means the head of the Office of eligible disaster victim before a court Disaster Assistance Programs, FEMA; or Federal agency in a matter directly the official who approves or dis- involving the United States, and fur- approves a request for assistance under ther provided that these lawyers do not section 416 of the Act, and is the final act in a way which will violate the appeal authority.

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(2) Crisis means any life situation re- ance, and guidance, and be the contact sulting from a major disaster or its point within the DHHS for program aftermath which so affects the emo- matters. tional and mental equilibrium of a dis- (9) Regional Director means the direc- aster victim that professional mental tor of a regional office of FEMA, or the health counseling services should be Disaster Recovery Manager, as the del- provided to help preclude possible dam- egate of the Regional Director. aging physical or psychological effects. (10) Secretary means the Secretary of (3) Crisis counseling means the appli- DHHS or his/her delegate. cation of individual and group treat- (11) State Coordinating Officer (SCO) ment procedures which are designed to means the person appointed by the ameliorate the mental and emotional Governor to act in cooperation with crises and their subsequent psycho- the FCO. logical and behavioral conditions re- (c) Agency policy. (1) It is agency pol- sulting from a major disaster or its icy to provide crisis counseling serv- aftermath. ices, when required, to victims of a (4) Federal Coordinating Officer (FCO) major disaster for the purpose of re- means the person appointed by the As- lieving mental health problems caused sociate Director to coordinate Federal or aggravated by a major disaster or assistance in an emergency or a major its aftermath. Assistance provided disaster. under this section is short-term in na- (5) Grantee means the State mental ture and is provided at no cost to eligi- health agency or other local or private mental health organization which is ble disaster victims. designated by the Governor to receive (2) The Regional Director and Assist- funds under section 416 of the Act. ant Associate Director, in fulfilling (6) Immediate services means those their responsibilities under this sec- screening or diagnostic techniques tion, shall coordinate with the Sec- which can be applied to meet mental retary. health needs immediately after a (3) In meeting the responsibilities major disaster. Funds for immediate under this section, the Secretary or services may be provided directly by his/her delegate will coordinate with the Regional Director to the State or the Assistant Associate Director. local mental health agency designated (d) State initiation of the crisis coun- by the Governor, prior to and separate seling program. To obtain assistance from the regular program application under this section, the Governor or his/ process of crisis counseling assistance. her authorized representative must ini- (7) Major disaster means any natural tiate an assessment of the need for cri- catastrophe (including any hurricane, sis counseling services within 10 days tornado, storm, high water, winddriven of the date of the major disaster dec- water, tidal wave, tsunami, earth- laration. The purpose of the assess- quake, volcanic eruption, landslide, ment is to provide an estimate of the mudslide, snowstorm or drought), or, size and cost of the program needed regardless of cause, any fire, flood, or and to determine if supplemental Fed- explosion, in any part of the United eral assistance is required. The factors States, which in the determination of of the assessment must include those the President causes damage of suffi- described in paragraphs (f)(2) (ii) and cient severity and magnitude to war- (iii) and (g)(2) (iii) and (iv) of this sec- rant major disaster assistance under tion. this Act to supplement the efforts and (e) Public or private mental health available resources of States, local agency programs. If the Governor deter- governments, and disaster relief orga- mines during the assessment that be- nizations in alleviating the damage, cause of unusual circumstances or seri- loss, hardship, or suffering caused ous conditions within the State or thereby. local mental health network, the State (8) Project Officer means the person cannot carry out the crisis counseling assigned by the Secretary, DHHS, to program, he/she may identify a public monitor a crisis counseling program, or private mental health agency or or- provide consultation, technical assist- ganization to carry out the program or

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request the Regional Director to iden- (vi) A detailed budget, showing the tify, with the assistance of the Sec- cost of proposed services separately retary, such an agency or organization. from the cost of reimbursement for any Preference should be given to the ex- eligible services provided prior to ap- tent feasible and practicable to those plication. public and private agencies or organi- (3) Reporting requirements. The State zations which are located in or do busi- shall submit to the Regional Director: ness primarily in the major disaster (i) A mid-program report only when a area. regular program grant application is (f) Immediate services. If, during the being prepared and submitted. This re- course of the assessment, the State de- port will be included as part of the reg- termines that immediate mental ular program grant application; health services are required because of (ii) A final program report, a finan- the severity and magnitude of the dis- cial status report, and a final voucher aster, and if State or local resources 90 days after the last day of immediate are insufficient to provide these serv- services funding. ices, the State may request and the Re- (4) Immediate services program fund- gional Director, upon determining that ing: State resources are insufficient, may (i) Shall not exceed 60 days following provide funds to the State, separate the declaration of the major disaster, from the application process for reg- except when a regular program grant ular program funds (described at para- application has been submitted; graph (g) of this section). (ii) May continue for up to 30 addi- (1) The application must be sub- tional days when a regular program mitted to the Regional Director no grant application has been submitted; later than 14 days following the dec- (iii) May be extended by the Regional laration of the major disaster. This ap- Director, upon written request from plication represents the Governor’s the State, documenting extenuating agreement and/or certification: circumstances; and (i) That the requirements are beyond (iv) May reimburse the State for doc- the State and local governments’ capa- umented, eligible expenses from the bilities; date of the occurrence of the event or (ii) That the program, if approved, incurred in anticipation of and imme- will be implemented according to the diately preceding the disaster event plan contained in the application ap- which results in a declaration. proved by the Regional Director; (v) Any funds granted pursuant to an immediate services program, para- (iii) To maintain close coordination graph (f) of this section, shall be ex- with and provide reports to the Re- pended solely for the purposes specified gional Director; and in the approved application and budget, (iv) To include mental health dis- these regulations, the terms and condi- aster planning in the State’s emer- tions of the award, and the applicable gency plan prepared under title II of principles prescribed in 44 CFR part 13. the Stafford Act. (5) Appeals. There are two levels of (2) The application must include: appeals. If a State submits appeals at (i) The geographical areas within the both levels, the first appeal must be designated disaster area for which serv- submitted early enough to allow the ices will be provided; latter appeal to be submitted within 60 (ii) An estimate of the number of dis- days following the date of the funding aster victims requiring assistance; determination on the immediate serv- (iii) A description of the State and ices program application. local resources and capabilities, and an (i) The State may appeal the Re- explanation of why these resources gional Director’s decision. This appeal cannot meet the need; must be submitted in writing within 60 (iv) A description of response activi- days of the date of notification of the ties from the date of the disaster inci- application decision, but early enough dent to the date of application; to allow for further appeal if desired. (v) A plan of services to be provided The appeal must include information to meet the identified needs; and justifying a reversal of the decision.

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The Regional Director shall review the encountered by victims, and a descrip- material submitted, and after consultation of how the estimate was made; tion with the Secretary, notify the (iv) A description of the State and State, in writing within 15 days of re- local resources and capabilities, and an ceipt of the appeal, of his/her decision; explanation of why these resources (ii) The State may further appeal the cannot meet the need; Regional Director’s decision to the As- (v) A plan of services which must in- sistant Associate Director. This appeal clude at a minimum: shall be made in writing within 60 days (A) The manner in which the proof the date of the Regional Director’s gram will address the needs of the af- notification of the decision on the im- fected population, including the types mediate services application. The ap- of services to be offered, an estimate of peal must include information justi- the length of time for which mental fying a reversal of the decision. The health services will be required, and Assistant Associate Director, or other the manner in which long-term cases impartial person, shall review the ma- will be handled; terial submitted, and after consulta- (B) A description of the organization with the Secretary and Regional tional structure of the program, in- Director, notify the State, in writing, cluding designation by the Governor of within 15 days of receipt of the appeal, an individual to serve as administrator of his/her decision. of the program. If more than one agen- (g) Regular program. (1) The applica- cy will be delivering services, the plan tion must be submitted by the Gov- to coordinate services must also be de- ernor or his/her authorized representa- scribed; tive to the Assistant Associate Direc- (C) A description of the training pro- tor through the Regional Director, and gram for project staff, indicating the simultaneously to the Secretary no number of workers needing such train- later than 60 days following the dec- ing; laration of the major disaster. This application represents the Governor’s (D) A description of the facilities to agreement and/or certification: be utilized, including plans for securing (i) That the requirements are beyond office space if necessary to the project; the State and local governments’ capa- and bilities; (E) A detailed budget, including iden- (ii) That the program, if approved, tification of the resources the State will be implemented according to the and local governments will commit to plan contained in the application ap- the project, proposed funding levels for proved by the Assistant Associate Di- the different agencies if more than one rector; is involved, and an estimate of the re- (iii) To maintain close coordination quired Federal contribution. with and provide reports to the Re- (3) Reporting requirements. The State gional Director, the Assistant Asso- shall submit the following reports to ciate Director, and the Secretary; and the Regional Director, the Secretary, (iv) To include mental health dis- and the State Coordinating Officer: aster planning in the State’s emer- (i) Quarterly progress reports, as re- gency plan prepared under title II of quired by the Regional Director or the the Stafford Act. Secretary, due 30 days after the end of (2) The application must include: the reporting period. This is consistent (i) Standard Form 424, Application with 44 CFR 13.40, Monitoring and Re- for Federal Assistance; porting Program Performance; (ii) The geographical areas within the (ii) A final program report, to be sub- designated disaster area for which serv- mitted within 90 days after the end of ices will be supplied; the program period. This is also con- (iii) An estimate of the number of sistent with 44 CFR 13.40, Monitoring disaster victims requiring assistance. and Reporting Program Performance; This documentation of need should in- (iii) An accounting of funds, in ac- clude the extent of physical, psycho- cordance with 44 CFR 13.41, Financial logical, and social problems observed, Reporting, to be submitted with the the types of mental health problems final program report; and

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(iv) Such additional reports as the (ii) All Federal, State, and local dis- Regional Director, Secretary, or SCO aster workers responsible for assisting may require. disaster victims are eligible for general (4) Regular program funding: instruction designed to enable them to (i) Shall not exceed 9 months from deal effectively and humanely with dis- the date of the DHHS notice of grant aster victims. award, except that upon the request of (i) Assignment of responsibilities. (1) the State to the Regional Director and The Regional Director shall: the Secretary, the Assistant Associate (i) In the case of an immediate serv- Director may authorize up to 90 days of ices program application, acknowledge additional program period because of receipt of the request, verify (with as- documented extenuating cir- sistance from the Secretary) that State cumstances; resources are insufficient, approve or (ii) The amount of the regular pro- disapprove the State’s application, ob- gram grant award will take into con- ligate and advance funds for this pur- sideration the Secretary’s estimate of pose, review appeals, make a deter- the sum necessary to carry out the mination (with assistance from the grant purpose. Secretary), and notify the State; (ii) In the case of a regular program (iii) Any funds granted pursuant to a grant application: regular program, paragraph (g) of this (A) Acknowledge receipt of the re- section, shall be expended solely for quest; the purposes specified in the approved (B) Request the Secretary to conduct application and budget, these regula- a review to determine the extent to tions, the terms and conditions of the which assistance requested by the Gov- award, and the applicable cost prin- ernor or his/her authorized representa- ciples prescribed in subpart Q of 45 CFR tive is warranted; part 92. (C) Considering the Secretary’s rec- (5) Appeals. The State may appeal the ommendation, recommend approval or Assistant Associate Director’s deci- disapproval of the application for as- sion, in writing, within 60 days of the sistance under this section; and for- date of notification of the decision. ward the Regional Director’s and Sec- The appeal must include information retary’s recommendations and docu- justifying a reversal of the decision. mentation to the Assistant Associate The Assistant Associate Director, or Director; other impartial person, in consultation (D) Assist the State in preliminary with the Secretary and Regional Direc- surveys and provide guidance and tech- tor, shall review the material sub- nical assistance if requested to do so; mitted and notify the State, in writing and within 15 days of receipt of the appeal, (E) Maintain liaison with the Sec- of his/her decision. retary and look to the Secretary for (h) Eligibility guidelines. (1) For serv- program oversight and monitoring. ices. An individual may be eligible for (2) The Secretary shall: crisis counseling services if he/she was (i) Provide technical assistance, con- a resident of the designated major dis- sultation, and guidance to the Regional aster areas or was located in the area Director in reviewing a State’s applica- at the time of the disaster event and if: tion, to a State during program imple- (i) He/she has a mental health prob- mentation and development, and to lem which was caused or aggravated by mental health agencies, as appropriate; the major disaster or its aftermath; or (ii) At the request of the Regional Di- (ii) He/she may benefit from preven- rector, conduct a review to verify the tive care techniques. extent to which the requested assist- (2) For training. (i) The crisis coun- ance is needed and provide a rec- seling project staff or consultants to ommendation on the need for supple- the project are eligible for the specific mentary Federal assistance. The re- instruction that may be required to en- view must include: able them to provide professional men- (A) A verification of the need for tal health crisis counseling to eligible services with an indication of how the individuals; verification was conducted;

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(B) Identification of the Federal men- (ii) Obligate funds and authorize ad- tal health programs in the area, and vances of funds to the DHHS; the extent to which such existing pro- (iii) Request that the Secretary des- grams can help alleviate the need; ignate a Project Officer; (C) An identification of State, local, (iv) Maintain liaison with the Sec- and private mental health resources, retary and Regional Director; and and the extent to which these re- (v) Review and make determinations sources can assume the workload with- on appeals, except for regular program out assistance under this section and appeals involving allowable costs and the extent to which supplemental as- termination for cause as described in sistance is warranted; paragraph (j)(2) of this section, and no- (D) A description of the needs; and tify the State of the decision. (E) A determination of whether the (j) Grant awards. (1) Neither the ap- plan adequately addresses the mental proval of any application nor the award health needs; of any grant commits or obligates the (iii) If the application is approved, United States in any way to make any provide grant assistance to States or additional, supplemental, continu- the designated public or private enti- ation, or other award with respect to ties; any approved application or portion of (iv) If the application is approved, any approved application. monitor the progress of the program (2) Several other regulations of the and perform program oversight; DHHS apply to grants under this sec- (v) Coordinate with, and provide pro- tion. These include, but are not limited gram reports to, the Regional Director, to: and the Assistant Associate Director; 45 CFR part 16—DHHS grant appeals proce- (vi) Make the appeal determination, dures for regular program grants, involving 42 CFR part 50, subpart D—PHS grant ap- allowable costs and termination for peals procedures cause as described in paragraph (j)(2) of 45 CFR part 74—Administration of grants this section; 45 CFR part 75—Informal grant appeals pro- (vii) As part of the project moni- cedures (indirect cost rates and other cost allocations) toring responsibilities, report to the 45 CFR part 80—Nondiscrimination under Regional Director and Assistant Asso- programs receiving Federal assistance ciate Director at least quarterly on the through the DHHS (effectuation of Title VI progress of crisis counseling programs, of the Civil Rights Act of 1964) in a report format jointly agreed upon 45 CFR part 81—Practice and procedure for by the Secretary and FEMA; provide hearings under part 80 special reports, as requested by the Re- 45 CFR part 84—Nondiscrimination on the gional Director, FCO, or Assistant As- basis of handicap in federally assisted programs sociate Director; 45 CFR part 86—Nondiscrimination on the (viii) Require progress reports and basis of sex in federally assisted programs other reports from the grantee to fa- 45 CFR part 91—Nondiscrimination on the cilitate his/her project monitoring re- basis of age in federally assisted programs sponsibilities; 45 CFR part 92—Uniform administrative re- (ix) Properly account for all Federal quirements for grants and cooperative funds made available to grantees under agreements to State and local govern- this section. Submit to the Assistant ments Associate Director, within 120 days of (k) Federal audits. The crisis coun- completion of a program, a final ac- seling program is subject to Federal counting of all expenditures for the audit. The Associate Director, the Re- program and return to FEMA all excess gional Director, the FEMA Inspector funds. Attention is called to the reim- General, The Secretary, and the Comp- bursement requirements of this part. troller General of the United States, or (3) The Assistant Associate Director their duly authorized representatives, shall: shall have access to any books, docu- (i) Approve or disapprove a State’s ments, papers, and records that pertain request for assistance based on rec- to Federal funds, equipment, and sup- ommendations of the Regional Director plies received under this section for the and the Secretary; purpose of audit and examination.

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§§ 206.172–206.180 [Reserved] (3) Other services which alleviate human suffering and promote the well § 206.181 Use of gifts and bequests for being of disaster victims. For example, disaster assistance purposes. services to the elderly, to children, or (a) General. FEMA sets forth proce- to handicapped persons, such as trans- dures for the use of funds made possible portation, recreational programs, pro- by a bequest of funds from the late vision of special ramps, or hospital or Cora C. Brown of Kansas City, Mis- home visiting services. The funds may souri, who left a portion of her estate be provided to individual disaster vic- to the United States for helping victims, or to benefit a group of disaster tims of natural disasters and other dis- victims. asters not caused by or attributable to (c) Conditions for use of the Cora war. FEMA intends to use the funds, Brown Fund. (1) The Cora Brown Fund and any others that may be bequeathed is available only when the President under this authority, in the manner declares that a major disaster or emer- and under the conditions described gency exists under the Act, only in below. areas designated as eligible for Federal (b) Purposes for awarding funds. disaster assistance through notice in Money from the Cora Brown Fund may the Federal Register, and only at the only be used to provided for disaster- discretion of the Assistant Associate related needs that have not been or Director, Office of Disaster Assistance will not be met by governmental agen- Programs, FEMA. The fund is limited cies or any other organizations which to the initial endowment plus accrued have programs to address such needs; interest, and this assistance program however, the fund is not intended to re- will cease when the fund is used up. place or supersede these programs. For (2) A disaster victim normally will example, if assistance is available from receive no more than $2,000 from this another source, including the Indi- fund in any one declared disaster un- vidual and Family Grant program and less the Assistant Associate Director government-sponsored disaster loan as- determines that a larger amount is in sistance, then money from the Cora the best interest of the disaster victim Brown Fund will not be available to and the Federal Government. Funds to the applicant for the same purpose. provide service which benefit a group Listed below are the general categories may be awarded in an amount deter- of assistance which can be provided by mined by the Assistant Associate Di- the Cora Brown Fund: rector, based on the Regional Direc- (1) Disaster-related home repair and tor’s recommendation. rebuilding assistance to families for permanent housing purposes, including (3) The fund may not be used in a way site acquisition and development, relo- that is inconsistent with other feder- cation of residences out of hazardous ally mandated disaster assistance or areas, assistance with costs associated insurance programs, or to modify other with temporary housing or permanent generally applicable requirements. rehousing (e.g., utility deposits, access, (4) Funds awarded to a disaster vic- transportation, connection of utilities, tim may be provided by FEMA jointly etc.); to the disaster victim and to a State or (2) Disaster-related unmet needs of local agency, or volunteer organiza- families who are unable to obtain ade- tion, to enable such an agent to assist quate assistance under the Act or from in providing the approved assistance to other sources. Such assistance may in- an applicant. Example: Repair funds clude but is not limited to: health and may be provided jointly to an applicant safety measures; evacuation costs; as- and the Mennonite Disaster Service, sistance delineated in the Act or other who will coordinate the purchase of Federal, State, local, or volunteer pro- supplies and provide the labor. grams; hazard mitigation or floodplain (5) Money from this fund will not du- management purposes; and assistance plicate assistance for which a person is to self-employed persons (with no em- eligible from other sources. ployees) to reestablish their businesses; (6) In order to comply with the Flood and Disaster Protection Act of 1973 (Pub. L.

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93–234), as amended, any award for ac- gional Director shall notify the dis- quisition or construction purposes aster victim in writing, identify any shall carry a requirement that any ade- award as assistance from the Cora quate flood insurance policy be pur- Brown Fund, and advise the recipient chased and maintained. The Assistant of appeal procedures. Associate Director shall determine (4) If the award is to be for a service what is adequate based on the purpose to a group of disaster victims, the Re- of the award. gional Director shall submit his/her (7) The fund shall be administered in recommendation and supporting docu- an equitable and impartial manner mentation to the Assistant Associate without discrimination on the grounds Director (or his/her designee if the of race, color, religion, national origin, award is below $2,000), who shall review sex, age, or economic status. the information and make a deter- (8) Funds awarded to a disaster vic- mination. In cases of approval, the As- tim from this fund may be combined sistant Associate Director shall re- with funds from other sources. quest the Comptroller to send a check (d) Administrative procedures. (1) The to the intended recipient or provider, Assistant Associate Director, Office of as appropriate. The Assistant Asso- Disaster Assistance Programs, shall be ciate Director shall notify the Regional responsible for awarding funds and au- Director of the decision. The Regional thorizing disbursement. Director shall notify a representative (2) The Comptroller of FEMA shall be of the group in writing. responsible for fund accountability (5) The Comptroller shall process re- and, in coordination with the Assistant quests for checks, shall keep records of Associate Director, for liaison with the disbursements and balances in the ac- Department of the Treasury con- count, and shall provide the Assistant cerning the investment of excess Associate Director with quarterly re- money in the fund pursuant to the pro- ports. visions contained in section 601 of the (e) Audits. The Inspector General of Act. FEMA shall audit the use of money in (3) Each FEMA Regional Director this account to determine whether the may submit requests to the Assistant funds are being administered according Associate Director on a disaster vic- to these regulations and whether the tim’s behalf by providing documenta- financial management of the account tion describing the needs of the dis- is adequate. The Inspector General aster victim, a verification of the dis- shall provide his/her findings to the As- aster victim’s claim, a record of other sociate Director, State and Local Pro- assistance which has been or will be grams and Support, for information, available for the same purpose, and his/ comments and appropriate action. A her recommendation as to the items copy shall be provided to the Comp- and the amount. The Assistant Asso- troller for the same purpose. ciate Director shall review the facts and make a determination. If the §§ 206.182–206.190 [Reserved] award amount is below $2,000, the As- sistant Associate Director may appoint § 206.191 Duplication of benefits. a designee to have approval authority; (a) Purpose. This section establishes approval authority of $2,000 or above the policies for implementing section shall be retained by the Assistant As- 312 of the Stafford Act, entitled Dupli- sociate Director. The Assistant Asso- cation of Benefits. This section relates ciate Director shall notify the Comp- to assistance for individuals and fami- troller of a decision for approval, and lies. the Comptroller shall order a check to (b) Government policy. (1) Federal be sent to the disaster victim (or joint- agencies providing disaster assistance ly to the disaster victim and an assist- under the Act or under their own au- ance organization), through the Re- thorities triggered by the Act, shall co- gional Director. The Assistant Asso- operate to prevent and rectify duplica- ciate Director shall also notify the Re- tion of benefits, according to the gen- gional Director of the decision, wheth- eral policy guidance of the Federal er for approval or disapproval. The Re- Emergency Management Agency. The

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agencies shall establish appropriate (i) Duplication occurs when an agen- agency policies and procedures to pre- cy has provided assistance which was vent duplication of benefits. the primary responsibility of another (2) Major disaster and emergency as- agency, and the agency with primary sistance provided to individuals and responsibility later provides assist- families under the Act, and comparable ance. A delivery sequence establishes disaster assistance provided by States, the order in which disaster relief agen- local governments, and disaster assist- cies and organizations provide assistance organizations, is not considered as ance. The specific sequence, in accord- income or a resource when determining ance with the mandates of the assist- eligibility for or benefit levels under ance programs, is to be generally fol- federally funded income assistance or lowed in the delivery of assistance. resource-tested programs. Examples of (ii) When the delivery sequence has federally funded income assistance or been disrupted, the disrupting agency resource-tested programs are the food is responsible for rectifying the dupli- stamp program and welfare assistance cation. The delivery sequence pertains programs. to that period of time in the recovery (c) FEMA policy. It is FEMA policy: phase when most of the traditional dis- (1) To prevent duplication of benefits aster assistance programs are avail- between its own programs and insurable. ance benefits, and between its own pro- (2) The delivery sequence is, in order grams and other disaster assistance. of delivery: Assistance under the Act may be pro- (i) Volunteer agencies’ emergency as- vided in instances where the applicant sistance (except expendable items such has not received other benefits to as clothes, linens, and basic kitchen- which he/she may be entitled by the ware); insurance (including flood insur- time of application and if the applicant ance); agrees to repay all duplicated assist- (ii) Housing assistance pursuant to ance to the agency providing the Fed- section 408 of the Stafford Act. eral assistance; (iii) Small Business Administration (2) To examine a debt resulting from and Farmers Home Administration dis- duplication to determine that the like- aster loans; lihood of collecting the debt and the (iv) Other Needs assistance, pursuant best interests of the Federal Govern- to section 408 of the Stafford Act or its ment justify taking the necessary re- predecessor program, the Individual covery actions to remedy duplication and Family Grant Program. which has occurred when other assist- (v) Volunteer agencies’ ‘‘additional ance has become available; assistance’’ programs; and (3) To assure uniformity in pre- (vi) The ‘‘Cora Brown Fund.’’ venting duplication of benefits, by con- (3) Two significant points about the sulting with other Federal agencies delivery sequence are that: and by performing selected quality (i) Each assistance agency should, in control reviews, that the other disaster turn, offer and be responsible for deliv- relief agencies establish and follow ering assistance without regard to du- policies and procedures to prevent and plication with a program later in the remedy duplication among their pro- sequence; and grams, other programs, and insurance (ii) The sequence itself determines benefits; and what types of assistance can duplicate (4) To coordinate the effort of agen- other assistance (i.e., a Federal pro- cies providing assistance so that each gram can duplicate insurance benefits, agency understands the prevention and however, insurance benefits cannot du- remedial policies of the others and is plicate the Federal assistance). An able to fulfill its own responsibilities agency’s position in the sequence de- regarding duplication of benefits. termines the order in which it should (d) Guidance to prevent duplication of provide assistance and what other re- benefits. (1) Delivery sequence. FEMA sources it must consider before it does provides the following policy and pro- so. cedural guidance to ensure uniformity (4) If following the delivery sequence in preventing duplication of benefits. concept would adversely affect the

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timely receipt of essential assistance (iii) Determine whether insurance by a disaster victim, an agency may benefits (including flood insurance) offer assistance which is the primary will be provided in a timely way. Where responsibility of another agency. There flood insurance is involved, the Re- also may be cases when an agency gional Director shall coordinate with (Agency B) delivers assistance which is the Federal Insurance Administration. normally the primary responsibility of The purpose of this coordination is to another agency (Agency A) because obtain information about flood insur- Agency A has, for good cause, denied ance coverage and settlements. assistance. After the assistance is de- (3) Random sample. Each disaster as- livered, Agency A reopens the case. If sistance agency is responsible for pre- the primary response Agency A then venting and rectifying duplication of provides assistance, that Agency A is benefits under the coordination of the responsible for coordinating with Agen- Federal Coordinating Officer (FCO) and cy B to either: the general authority of section 312. To (i) Assist Agency B in preventing the determine whether duplication has oc- duplication of benefits, or curred and established procedures have (ii) In the case where the disaster vic- been followed, the Regional Director tim has refused assistance from Agency shall, within 90 days after the close of A, notify Agency B that it must re- the disaster assistance programs appli- cover assistance previously provided. cation period, for selected disaster dec- (e) Program guidance—(1) Programs larations, examine on a random sample under the Act vs. other agency assistance. basis, FEMA’s and other government (i) In making an eligibility determina- and voluntary agencies’ case files and tion, the FEMA Regional Director, in document the findings in writing. the case of federally operated pro- (4) Duplication when assistance under grams, or the State, in the case of the Act is involved. If duplication is dis- State operated programs, shall deter- covered, the Regional Director shall mine whether assistance is the primary determine whether the duplicating responsibility of another agency to agency followed its own remedial pro- provide, according to the delivery se- cedures. quence; and determine whether that primary response agency can provide (i) If the duplicating agency followed assistance in a timely way. its procedures and was successful in (ii) If it is determined that timely as- correcting the duplication, the Re- sistance can be provided by the agency gional Director will take no further ac- with primary responsibility, refrain tion. If the agency was not successful from providing assistance under the in correcting the duplication, and the Act. If it is determined that assistance Regional Director is satisfied that the from the agency with primary respon- duplicating agency followed its reme- sibility will be delayed, assistance dial procedures, no further action will under the Act may be provided, but be taken. then must be recovered from the appli- (ii) If the duplicating agency did not cant when the other assistance be- follow its duplication of benefits proce- comes available. dures, or the Regional Director is not (2) Programs under the Act vs. insur- satisfied that the procedures were fol- ance. In making an eligibility deter- lowed in an acceptable manner, then mination, the FEMA Regional Director the Regional Director shall provide an or State shall: opportunity for the agency to take the (i) Remind the applicant about his/ required corrective action. If the agen- her responsibility to pursue an ade- cy cannot fulfill its responsibilities for quate settlement. The applicant must remedial action, the Regional Director provide information concerning insur- shall notify the recipient of the excess ance recoveries. assistance, and after examining the (ii) Determine whether the appli- debt, if it is determined that the likeli- cant’s insurance settlement will be suf- hood of collecting the debt and the best ficient to cover the loss or need with- interests of the Federal Government out disaster assistance; and justify taking the necessary recovery

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actions, then take those recovery ac- federal programs under their own pro- tions in conjunction with agency rep- cedures. We expect the Grantee to: resentatives for each identified case in (i) Inform subgrantees about the sta- the random sample (or larger universe, tus of their applications, including no- at the Regional Director’s discretion). tifications of our approvals of Project (5) Duplication when assistance under Worksheets and our estimates of when other authorities is involved. When the we will make payments; random sample shows evidence that du- (ii) Pay the full amounts due to sub- plication has occurred and corrective grantees as soon as practicable after action is required, the Regional Direc- we approve payment, including the tor and the FCO shall urge the dupli- State contribution required in the cating agency to follow its own proce- FEMA-State Agreement; and dures to take corrective action, and (iii) Pay the State contribution con- shall work with the agency toward that sistent with State laws. end. Under his/her authority in section [55 FR 2304, Jan. 23, 1990, as amended at 63 312, the Regional Director shall require FR 64425, Nov. 20, 1998; 64 FR 55160, Oct. 12, the duplicating agency to report to 1999] him/her on its attempt to correct the duplications identified in the sample. § 206.201 Definitions used in this sub- (f) Recovering FEMA funds: debt collec- part. tion. Funds due to FEMA are recovered (a) Applicant means a State agency, in accordance with FEMA’s Debt Col- local government, or eligible private lection Regulations (44 CFR part 11, nonprofit organization, as identified in subpart C). Subpart H of this regulation, submitting an application to the Grantee for [54 FR 11615, Mar. 21, 1989, as amended at 67 FR 61460, Sept. 30, 2002] assistance under the State’s grant. (b) Emergency work means that work §§ 206.192–206.199 [Reserved] which must be done immediately to save lives and to protect improved Subpart G—Public Assistance property and public health and safety, or to avert or lessen the threat of a Project Administration major disaster. (c) Facility means any publicly or pri- SOURCE: 55 FR 2304, Jan. 23, 1990, unless vately owned building, works, system, otherwise noted. or equipment, built or manufactured, or an improved and maintained natural § 206.200 General. feature. Land used for agricultural pur- (a) Purpose. This subpart establishes poses is not a facility. procedures for the administration of (d) Grant means an award of financial Public Assistance grants approved assistance. The grant award shall be under the provisions of the Stafford based on the total eligible Federal Act. share of all approved projects. (b) What policies apply to FEMA public (e) Grantee means the government to assistance grants? (1) The Stafford Act which a grant is awarded which is ac- requires that we deliver eligible assist- countable for the use of the funds pro- ance as quickly and efficiently as pos- vided. The grantee is the entire legal sible consistent with Federal laws and entity even if only a particular compo- regulations. We expect the Grantee and nent of the entity is designated in the the subgrantee to adhere to Stafford grant award document. For purposes of Act requirements and to these regula- this regulation, except as noted in tions when administering our public § 206.202, the State is the grantee. assistance grants. (f) Hazard mitigation means any cost (2) The regulations entitled ‘‘Uniform effective measure which will reduce the Requirements for Grants and Coopera- potential for damage to a facility from tive Agreements to State and Local a disaster event. Governments,’’ published at 44 CFR (g) Permanent work means that re- part 13, place requirements on the storative work that must be performed State in its role as Grantee and gives through repairs or replacement, to re- the Grantee discretion to administer store an eligible facility on the basis of

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its predisaster design and current ap- (2) Providing State support for plicable standards. project identification activities to in- (h) Predisaster design means the size clude small and large project formula- or capacity of a facility as originally tion and the validation of small designed and constructed or subse- projects; quently modified by changes or addi- (3) Ensuring that all potential appli- tions to the original design. It does not cants are aware of available public as- mean the capacity at which the facility sistance; and was being used at the time the major (4) Submitting documents necessary disaster occurred if different from the for the award of grants. most recent designed capacity. (c) Request for Public Assistance (Re- (i) A project is a logical grouping of quest). The Grantee must send a com- work required as a result of the depleted Request (FEMA Form 90–49) to clared major disaster or emergency. the Regional Director for each appli- The scope of work and cost estimate cant who requests public assistance. for a project are documented on a You must send Requests to the Regional Project Worksheet (FEMA Form 90–91). Director within 30 days after designa- (1) We must approve a scope of eligi- tion of the area where the damage oc- ble work and an itemized cost estimate curred. before funding a project. (d) Project Worksheets. (1) An appli- (2) A project may include eligible cant’s authorized local representative work at several sites. is responsible for representing the ap- (j) Project approval means the process plicant and for ensuring that the appli- in which the Regional Director, or des- cant has identified all eligible work ignee, reviews and signs an approval of and submitted all costs for disaster-re- work and costs on a Project Worksheet lated damages for funding. or on a batch of Project Worksheets. (i) We or the applicant, assisted by Such approval is also an obligation of the State as appropriate, will prepare a funds to the Grantee. Project Worksheet (FEMA Form 90–91) (k) Subgrant means an award of finan- for each project. The Project Work- cial assistance under a grant by a sheet must identify the eligible scope grantee to an eligible subgrantee. of work and must include a quan- (l) Subgrantee means the government titative estimate for the eligible work. or other legal entity to which a (ii) The applicant will have 60 days subgrant is awarded and which is ac- following its first substantive meeting countable to the grantee for the use of with us to identify and to report dam- the funds provided. age to us. (2) When the estimated cost of work [55 FR 2304, Jan. 23, 1990, as amended at 63 on a project is less than $1,000, that FR 64425, Nov. 20, 1998; 64 FR 55160, Oct. 12, work is not eligible and we will not ap- 1999] prove a Project Worksheet for the project. Periodically we will review § 206.202 Application procedures. this minimum approval amount for a (a) General. This section describes the Project Worksheet and, if needed, will policies and procedures that we use to adjust the amount by regulation. process public assistance grants to (e) Grant approval. (1) Before we obli- States. Under this section the State is gate any funds to the State, the Grant- the Grantee. As Grantee you are re- ee must complete and send to the Re- sponsible for processing subgrants to gional Director a Standard Form (SF) applicants under 44 CFR parts 13, 14, 424, Application for Federal Assistance, and 206, and your own policies and pro- and a SF 424D, Assurances for Con- cedures. struction Programs. After we receive (b) Grantee. You are the grant admin- the SF 424 and SF 424D, the Regional istrator for all funds provided under Director will obligate funds to the the Public Assistance grant program. Grantee based on the approved Project Your responsibilities under this section Worksheets. The Grantee will then ap- include: prove subgrants based on the Project (1) Providing technical advice and as- Worksheets approved for each appli- sistance to eligible subgrantees; cant.

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(2) When the applicant submits the facility, the Grantee’s approval must Project Worksheets, we will have 45 be obtained. Federal funding for such days to obligate Federal funds. If we improved projects shall be limited to have a delay beyond 45 days we will ex- the Federal share of the approved esti- plain the delay to the Grantee. mate of eligible costs. (f) Exceptions. The following are ex- (2) Alternate projects. In any case ceptions to the procedures and time where a subgrantee determines that limitations outlined in paragraphs (c), the public welfare would not be best (d), and (e) of this section. served by restoring a damaged public (1) Grant applications. An Indian tribe facility or the function of that facility, or authorized tribal organization may the Grantee may request that the RD submit a SF 424 directly to the RD approve an alternate project. when the Act authorizes assistance and (i) The alternate project option may a State is legally unable to assume the be taken only on permanent restora- responsibilities that these regulations tive work. prescribe. (ii) Federal funding for such alter- (2) Time limitations. The RD may ex- nate projects will be 75 percent of the tend the time limitations shown in Federal share of the approved Federal paragraphs (c) and (d) of this section estimate of eligible costs. when the Grantees justifies and makes (iii) If soil instability at the alter- a request in writing. The justification nate project site makes the repair, res- must be based on extenuating toration or replacement of a State or circustances beyond the grantee’s or local government-owned or -controlled subgrantee’s control. facility infeasible, the Federal funding for such an alternate project will be 90 [64 FR 55160, Oct. 12, 1999] percent of the Federal share of the ap- § 206.203 Federal grant assistance. proved Federal estimate of eligible costs. (a) General. This section describes the (iv) Funds contributed for alternate types and extent of Federal funding projects may be used to repair or ex- available under State disaster assist- pand other selected public facilities, to ance grants, as well as limitations and construct new facilities, or to fund haz- special procedures applicable to each. ard mitigation measures. These funds (b) Cost sharing. All projects approved may not be used to pay the nonFederal under State disaster assistance grants share of any project, nor for any oper- will be subject to the cost sharing provisions established in the FEMA-State ating expense. (v) Prior to the start of construction Agreement and the Stafford Act. (c) Project funding—(1) Large projects. of any alternate project the Grantee When the approved estimate of eligible shall submit for approval by the RD costs for an individual project is $35,000 the following: a description of the pro- or greater, Federal funding shall equal posed alternate project(s); a schedule the Federal share of the actual eligible of work; and the projected cost of the costs documented by a grantee. Such project(s). The Grantee shall also pro- $35,000 amount shall be adjusted annu- vide the necessary assurances to docu- ally to reflect changes in the Consumer ment compliance with special require- Price Index for All Urban Consumers ments, including, but not limited to published by the Department of Labor. floodplain management, environmental (2) Small projects. When the approved assessment, hazard mitigation, protec- estimate of costs for an individual tion of wetlands, and insurance. project is less than $35,000, Federal [55 FR 2304, Jan. 23, 1990, as amended at 66 funding shall equal the Federal share FR 22444, May 4, 2001] of the approved estimate of eligible costs. Such $35,000 amount shall be ad- § 206.204 Project performance. justed annually as indicated in para- (a) General. This section describes the graph (c)(1) of this section. policies and procedures applicable dur- (d) Funding options—(1) Improved ing the performance of eligible work. projects. If a subgrantee desires to (b) Advances of funds. Advances of make improvements, but still restore funds will be made in accordance with the predisaster function of a damaged 44 CFR 13.21, Payment.

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(c) Time limitations for completion of exceed the approved Project Worksheet work—(1) Deadlines. The project com- estimates. Such cost overruns nor- pletion deadlines shown below are set mally fall into the following three cat- from the date that a major disaster or egories: emergency is declared and apply to all (i) Variations in unit prices; projects approved under State disaster (ii) Change in the scope of eligible assistance grants. work; or (iii) Delays in timely starts or com- COMPLETION DEADLINES pletion of eligible work. Type of work Months (2) The subgrantee must evaluate each cost overrun and, when justified, Debris clearance ...... 6 Emergency work ...... 6 submit a request for additional funding Permanent work ...... 18 through the Grantee to the RD for a final determination. All requests for (2) Exceptions. (i) The Grantee may the RD’s approval will contain suffi- impose lesser deadlines for the comple- cient documentation to support the eli- tion of work under paragraph (c)(1) of gibility of all claimed work and costs. this section if considered appropriate. The Grantee must include a written (ii) Based on extenuating cir- recommendation when forwarding the cumstances or unusual project require- request. The RD will notify the Grant- ments beyond the control of the sub- ee in writing of the final determina- grantee, the Grantee may extend the tion. FEMA will not normally review deadlines under paragraph (c)(1) of this an overrun for an individual small section for an additional 6 months for project. The normal procedure for debris clearance and emergency work and an additional 30 months, on a small projects will be that when a sub- project by project basis for permanent grantee discovers a significant overrun work. related to the total final cost for all (d) Requests for time extensions. Re- small projects, the subgrantee may quests for time extensions beyond the submit an appeal for additional funding Grantee’s authority shall be submitted in accordance with § 206.206, within 60 by the Grantee to the RD and shall in- days following the completion of all its clude the following: small projects. (1) The dates and provisions of all (f) Progress reports. Progress reports previous time extensions on the will be submitted by the Grantee to the project; and RD quarterly. The RD and Grantee (2) A detailed justification for the shall negotiate the date for submission delay and a projected completion date. of the first report. Such reports will de- The RD shall review the request and scribe the status of those projects on make a determination. The Grantee which a final payment of the Federal shall be notified of the RD’s determina- share has not been made to the grantee tion in writing. If the RD approves the and outline any problems or cir- request, the letter shall reflect the ap- cumstances expected to result in non- proved completion date and any other compliance with the approved grant requirements the RD may determine conditions. necessary to ensure that the new completion date is met. If the RD denies [55 FR 2304, Jan. 23, 1990; 55 FR 5458, Feb. 15, the time extension request, the grantee 1990, as amended at 64 FR 55161, Oct. 12, 1999] may, upon completion of the project, § 206.205 Payment of claims. be reimbursed for eligible project costs incurred only up to the latest approved (a) Small Projects. Final payment of completion date. If the project is not the Federal share of these projects will completed, no Federal funding will be be made to the Grantee upon approval provided for that project. of the Project Worksheet. The Grantee (e) Cost Overruns. (1) During the exe- will make payment of the Federal cution of approved work a subgrantee share to the subgrantee as soon as may find that the actual project costs practicable after Federal approval of

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funding. Before the closeout of the dis- writing through the grantee to the Re- aster contract, the Grantee must cer- gional Director. The grantee shall re- tify that all such projects were com- view and evaluate all subgrantee ap- pleted in accordance with FEMA appeals before submission to the Regional provals and that the State contribu- Director. The grantee may make grant- tion to the non-Federal share, as speci- ee-related appeals to the Regional Di- fied in the FEMA-State Agreement, rector. The appeal shall contain docu- has been paid to each subgrantee. Such mented justification supporting the ap- certification is not required to specify pellant’s position, specifying the mone- the amount spent by a subgrantee on tary figure in dispute and the provi- small projects. The Federal payment sions in Federal law, regulation, or pol- for small projects shall not be reduced icy with which the appellant believes if all of the approved funds are not the initial action was inconsistent. spent to complete a project. However, (b) Levels of Appeal. (1) The Regional failure to complete a project may re- Director will consider first appeals for quire that the Federal payment be republic assistance-related decisions funded. under subparts A through L of this (b) Large projects. (1) The Grantee part. shall make an accounting to the RD of (2) The Associate Director/Executive eligible costs for each approved large Associate Director for Response and project. In submitting the accounting Recovery will consider appeals of the the Grantee shall certify that reported Regional Director’s decision on any costs were incurred in the performance first appeal under paragraph (b)(1) of of eligible work, that the approved this section. work was completed, that the project (c) Time Limits. (1) Appellants must is in compliance with the provisions of file appeals within 60 days after receipt the FEMA-State Agreement, and that of a notice of the action that is being payments for that project have been appealed. made in accordance with 44 CFR 13.21, (2) The grantee will review and for- Payments. Each large project shall be ward appeals from an applicant or sub- submitted as soon as practicable after grantee, with a written recommenda- the subgrantee has completed the ap- tion, to the Regional Director within 60 proved work and requested payment. days of receipt. (2) The RD shall review the account- (3) Within 90 days following receipt of ing to determine the eligible amount of an appeal, the Regional Director (for reimbursement for each large project first appeals) or Associate Director/Ex- and approve eligible costs. If a discrep- ecutive Associate Director (for second ancy between reported costs and ap- appeals) will notify the grantee in writ- proved funding exists, the RD may con- ing of the disposition of the appeal or duct field reviews to gather additional of the need for additional information. information. If discrepancies in the A request by the Regional Director or claim cannot be resolved through a Associate Director/Executive Associate field review, a Federal audit may be Director for additional information conducted. If the RD determines that will include a date by which the infor- eligible costs exceed the initial ap- mation must be provided. Within 90 proval, he/she will obligate additional days following the receipt of the refunds as necessary. quested additional information or fol- [55 FR 2304, Jan. 23, 1990, as amended at 64 lowing expiration of the period for pro- FR 55161, Oct. 12, 1999] viding the information, the Regional Director or Associate Director/Execu- § 206.206 Appeals. tive Associate Director will notify the An eligible applicant, subgrantee, or grantee in writing of the disposition of grantee may appeal any determination the appeal. If the decision is to grant previously made related to an applica- the appeal, the Regional Director will tion for or the provision of Federal as- take appropriate implementing action. sistance according to the procedures (d) Technical Advice. In appeals in- below. volving highly technical issues, the Re- (a) Format and Content. The applicant gional Director or Associate Director/ or subgrantee will make the appeal in Executive Associate Director may, at

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his or her discretion, submit the appeal (C) Assisting FEMA in determining to an independent scientific or tech- applicant eligibility; nical person or group having expertise (D) Participating with FEMA in con- in the subject matter of the appeal for ducting damage surveys to serve as a advice or recommendation. The period basis for obligations of funds to sub- for this technical review may be in ad- grantees; dition to other allotted time periods. (E) Participating with FEMA in the Within 90 days of receipt of the report, establishment of hazard mitigation and the Regional Director or Associate Di- insurance requirements; rector/Executive Associate Director (F) Processing appeal requests, re- will notify the grantee in writing of the disposition of the appeal. quests for time extensions and requests (e) Transition. (1) This rule is effec- for approval of overruns, and for proc- tive for all appeals pending on and ap- essing appeals of grantee decisions; peals from decisions issued on or after (G) Compliance with the administra- May 8, 1998, except as provided in para- tive requirements of 44 CFR parts 13 graph (e)(2) of this section. and 206; (2) Appeals pending from a decision (H) Compliance with the audit re- of an Associate Director/Executive As- quirements of 44 CFR part 14; sociate Director before May 8, 1998 may (I) Processing requests for advances be appealed to the Director in accord- of funds and reimbursement; and ance with 44 CFR 206.440 as it existed (J) Determining staffing and budg- before May 8, 1998 (44 CFR, revised as of eting requirements necessary for prop- October 1, 1997). er program management. (3) The decision of the FEMA official (2) The Grantee may request the RD at the next higher appeal level shall be to provide technical assistance in the the final administrative decision of preparation of such administrative FEMA. plan. [63 FR 17110, Apr. 8, 1998; 63 FR 24970, May 6, (3) In accordance with the Interim 1998] Rule published March 21, 1989, the Grantee was to have submitted an ad- § 206.207 Administrative and audit re- ministrative plan to the RD for ap- quirements. proval by September 18, 1989. An ap- (a) General. Uniform administrative proved plan must be on file with FEMA requirements which are set forth in 44 before grants will be approved in a fu- CFR part 13 apply to all disaster assist- ture major disaster. Thereafter, the ance grants and subgrants. Grantee shall submit a revised plan to (b) State administrative plan. (1) The the RD annually. In each disaster for State shall develop a plan for the ad- which Public Assistance is included, ministration of the Public Assistance the RD shall request the Grantee to program that includes at a minimum, prepare any amendments required to the items listed below: meet current policy guidance. (i) The designation of the State agen- (4) The Grantee shall ensure that the cy or agencies which will have the re- approved administrative plan is incor- sponsibility for program administra- porated into the State emergency plan. tion. (c) Audit—(1) Nonfederal audit. For (ii) The identification of staffing grantees or subgrantees, requirements functions in the Public Assistance pro- for nonfederal audit are contained in gram, the sources of staff to fill these FEMA regulations at 44 CFR part 14 or functions, and the management and OMB Circular A–110 as appropriate. oversight responsibilities of each. (2) Federal audit. In accordance with (iii) Procedures for: 44 CFR part 14, appendix A, para. 10, (A) Notifying potential applicants of FEMA may elect to conduct a Federal the availability of the program; audit of the disaster assistance grant (B) Conducting briefings for potential or any of the subgrants. applicants and application procedures, program eligibility guidance and pro- [55 FR 2304, Jan. 23, 1990; 55 FR 5458, Feb. 15, gram deadlines; 1990]

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§ 206.208 Direct Federal assistance. billing period frequency. The Federal (a) General. When the State and local agency must not exceed the approved government lack the capability to per- funding limit without the authoriza- form or to contract for eligible emer- tion of the RD. gency work and/or debris removal, (2) If all or any part of the requested under sections 402(4), 403 or 407 of the work falls within the statutory author- Act, the Grantee may request that the ity of another Federal agency, the RD work be accomplished by a Federal shall not approve that portion of the agency. Such assistance is subject to work. In such case, the unapproved the cost sharing provisions outlined in portion of the request will be referred § 206.203(b) of this subpart. Direct Fed- to the appropriate agency for action. eral assistance is also subject to the (d) Time limitation. The time limita- eligibility criteria contained in Sub- tion for completion of work by a Fed- part H of these regulations. FEMA will eral agency under a mission assign- reimburse other Federal agencies in ac- ment is 60 days after the President’s cordance with Subpart A of these regu- declaration. Based on extenuating cir- lations. (b) Requests for assistance. All re- cumstances or unusual project require- quests for direct Federal assistance ments, the RD may extend this time shall be submitted by the Grantee to limitation. the RD and shall include: (e) Project management. (1) The per- (1) A written agreement that the forming Federal agency shall ensure State will: that the work is completed in accord- (i) Provide without cost to the ance with the RD’s approved scope of United States all lands, easements and work, costs and time limitations. The rights-of-ways necessary to accomplish performing Federal agency shall also the approved work; keep the RD and Grantee advised of (ii) Hold and save the United States work progress and other project devel- free from damages due to the requested opments. It is the responsibility of the work, and shall indemnify the Federal performing Federal agency to ensure Government against any claims arising compliance with applicable Federal, from such work; State and local legal requirements. A (iii) Provide reimbursement to FEMA final inspection report will be com- for the nonFederal share of the cost of pleted upon termination of all direct such work in accordance with the provisions of the FEMA-State Agreement; Federal assistance work. Final inspec- and tion reports shall be signed by a rep- (iv) Assist the performing Federal resentative of the performing Federal agency in all support and local juris- agency and the State. Once the final el- dictional matters. igible cost is determined (including (2) A statement as to the reasons the Federal agency overhead), the State State and the local government cannot will be billed for the nonFederal share perform or contract for performance of of the mission assignment in accord- the requested work. ance with the cost sharing provisions (3) A written agreement from an eli- of the FEMA-State Agreement. gible applicant that such applicant will (2) Pursuant to the agreements probe responsible for the items in subpara- vided in the request for assistance the graph (b)(1) (i) and (ii) of this section, Grantee shall assist the performing in the event that a State is legally un- Federal agency in all State and local able to provide the written agreement. jurisdictional matters. These matters (c) Implementation. (1) If the RD ap- include securing local building permits proves the request, a mission assign- and rights of entry, control of traffic ment will be issued to the appropriate and pedestrians, and compliance with Federal agency. The mission assign- local building ordinances. ment letter to the agency will define the scope of eligible work, the esti- [55 FR 2304, Jan. 23, 1990, as amended at 64 mated cost of the eligible work and the FR 55161, Oct. 12, 1999]

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§§ 206.209–206.219 [Reserved] providing essential governmental type services to the general public, and such Subpart H—Public Assistance facilities on Indian reservations. Fur- Eligibility ther definition is as follows: (1) Educational facilities means classrooms plus related supplies, equipment, SOURCE: 55 FR 2307, Jan. 23, 1990, unless otherwise noted. machinery, and utilities of an educational institution necessary or ap- § 206.220 General. propriate for instructional, administra- This subpart provides policies and tive, and support purposes, but does procedures for determinations of eligi- not include buildings, structures and bility of applicants for public assist- related items used primarily for reliance, eligibility of work, and eligibility gious purposes or instruction. of costs for assistance under sections (2) Utility means buildings, struc- 402, 403, 406, 407, 418, 419, 421(d), 502, and tures, or systems of energy, commu- 503 of the Stafford Act. Assistance nication, water supply, sewage collec- under this subpart must also conform tion and treatment, or other similar to requirements of 44 CFR part 201, public service facilities. Mitigation Planning, and 44 CFR part (3) Irrigation facility means those fa- 206, subparts G—Public Assistance cilities that provide water for essential Project Administration, I—Public As- services of a governmental nature to sistance Insurance Requirements, J— the general public. Irrigation facilities Coastal Barrier Resources Act, and M— include water for fire suppression, gen- Minimum Standards. Regulations erating and supplying electricity, and under 44 CFR part 9—Floodplain Man- drinking water supply; they do not in- agement and 44 CFR part 10—Environ- clude water for agricultural purposes. mental Considerations, also apply to (4) Emergency facility means those this assistance. buildings, structures, equipment, or [67 FR 8854, Feb. 26, 2002] systems used to provide emergency services, such as fire protection, ambu- § 206.221 Definitions. lance, or rescue, to the general public, (a) Educational institution means: including the administrative and sup- (1) Any elementary school as defined port facilities essential to the oper- by section 801(c) of the Elementary and ation of such emergency facilities even Secondary Education Act of 1965; or if not contiguous. (2) Any secondary school as defined (5) Medical facility means any hos- by section 801(h) of the Elementary and pital, outpatient facility, rehabilita- Secondary Education Act of 1965; or tion facility, or facility for long term (3) Any institution of higher edu- care as such terms are defined in sec- cation as defined by section 1201 of the tion 645 of the Public Health Service Higher Education Act of 1965. Act (42 U.S.C. 2910) and any similar fa- (b) Force account means an appli- cility offering diagnosis or treatment cant’s own labor forces and equipment. of mental or physical injury or disease, (c) Immediate threat means the threat includng the administrative and sup- of additional damage or destruction from an event which can reasonably be port facilities essential to the oper- expected to occur within five years. ation of such medical facilities even if (d) Improved property means a struc- not contiguous. ture, facility or item of equipment (6) Custodial care facility means those which was built, constructed or manu- buildings, structures, or systems in- factured. Land used for agricultural cluding those for essential administra- purposes is not improved property. tion and support, which are used to (e) Private nonprofit facility means provide institutional care for persons any private nonprofit educational, util- who require close supervision and some ity, emergency, medical, or custodial physical constraints on their daily ac- care facility, including a facility for tivities for their self-protection, but do the aged or disabled, and other facility not require day-to-day medical care.

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(7) Other essential governmental service Native Corporations, the ownership of facility means museums, zoos, commu- which is vested in private individuals. nity centers, libraries, homeless shelters, senior citizen centers, rehabilita- § 206.223 General work eligibility. tion facilities, shelter workshops and (a) General. To be eligible for finan- facilities which provide health and cial assistance, an item of work must: safety services of a governmental na- (1) Be required as the result of the ture. All such facilities must be open major disaster event, to the general public. (2) Be located within a designated (f) Private nonprofit organization disaster area, and means any nongovernmental agency or (3) Be the legal responsibility of an entity that currently has: eligible applicant. (1) An effective ruling letter from the (b) Private nonprofit facilities. To be U.S. Internal Revenue Service, grant- eligible, all private nonprofit facilities ing tax exemption under sections must be owned and operated by an or- 501(c), (d), or (e) of the Internal Rev- ganization meeting the definition of a enue Code of 1954, or private nonprofit organization [see (2) Satisfactory evidence from the § 206.221(f)]. State that the nonrevenue producing (c) Public entities. Facilities belonging organization or entity is a nonprofit to a public entity may be eligible for one organized or doing business under assistance when the application is sub- State law. mitted through the State or a political (g) Public entity means an organiza- subdivision of the State. tion formed for a public purpose whose (d) Facilities serving a rural community direction and funding are provided by or unincorporated town or village. To be one or more political subdivisions of eligible for assistance, a facility not the State. owned by an eligible applicant, as de- (h) Public facility means the following fined in § 206.222, must be owned by a facilities owned by a State or local private nonprofit organization; and government: any flood control, naviga- provide an essential governmental tion, irrigation, reclamation, public service to the general public. Applica- power, sewage treatment and collections for these facilities must be sub- tion, water supply and distribution, mitted through a State or political watershed development, or airport fa- subdivision of the State. cility; any non-Federal aid, street, (e) Negligence. No assistance will be road, or highway; and any other public provided to an applicant for damages building, structure, or system, includ- caused by its own negligence. If neg- ing those used for educational, rec- ligence by another party results in reational, or cultural purposes; or any damages, assistance may be provided, park. but will be conditioned on agreement (i) Standards means codes, specifica- by the applicant to cooperate with tions or standards required for the con- FEMA in all efforts necessary to re- struction of facilities. cover the cost of such assistance from [55 FR 2307, Jan. 23, 1990, as amended at 58 the negligent party. FR 47994, Sept. 14, 1993; 66 FR 22445, May 4, 2001] § 206.224 Debris removal. (a) Public interest. Upon determina- § 206.222 Applicant eligibility. tion that debris removal is in the pub- The following entities are eligible to lic interest, the Regional Director may apply for assistance under the State provide assistance for the removal of public assistance grant: debris and wreckage from publicly and (a) State and local governments. privately owned lands and waters. Such (b) Private non-profit organizations removal is in the public interest when or institutions which own or operate a it is necessary to: private nonprofit facility as defined in (1) Eliminate immediate threats to § 205.221(e). life, public health, and safety; or (c) Indian tribes or authorized tribal (2) Eliminate immediate threats of organizations and Alaska Native vil- significant damage to improved public lages or organizations, but not Alaska or private property; or

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(3) Ensure economic recovery of the age to improved public or private prop- affected community to the benefit of erty through measures which are cost the community-at-large; or effective. (4) Mitigate the risk to life and prop- (b) Emergency access. An access facil- erty by removing substantially dam- ity that is not publicly owned or is not aged structures and associated appur- the direct responsibility of an eligible tenances as needed to convert property applicant for repair or maintenance acquired through a FEMA hazard miti- may be eligible for emergency repairs gation program to uses compatible or replacement provided that emer- with open space, recreation, or wet- gency repair or replacement of the fa- lands management practices. Such re- cility economically eliminates the moval must be completed within two need for temporary housing. The work years of the declaration date, unless will be limited to that necessary for the Associate Director for Readiness, the access to remain passable through Response and Recovery extends this pe- events which can be considered an im- riod. mediate threat. The work must be per- (b) Debris removal from private prop- formed by an eligible applicant and erty. When it is in the public interest will be subject to cost sharing require- for an eligible applicant to remove de- ments. bris from private property in urban, suburban and rural areas, including (c) Emergency communications. Emer- large lots, clearance of the living, rec- gency communications necessary for reational and working area is eligible the purpose of carrying out disaster re- except those areas used for crops and lief functions may be established and livestock or unused areas. may be made available to State and (c) Assistance to individuals and private local government officials as deemed organizations. No assistance will be pro- appropriate. Such communications are vided directly to an individual or pri- intended to supplement but not replace vate organization, or to an eligible ap- normal communications that remain plicant for reimbursement of an indi- operable after a major disaster. FEMA vidual or private organization, for the funding for such communications will cost of removing debris from their own be discontinued as soon as the needs property. Exceptions to this are those have been met. private nonprofit organizations oper- (d) Emergency public transportation. ating eligible facilities. Emergency public transportation to meet emergency needs and to provide [55 FR 2307, Jan. 23, 1990, as amended at 66 FR 33901, June 26, 2001] transportation to public places and such other places as necessary for the § 206.225 Emergency work. community to resume its normal pat- (a) General. (1) Emergency protective tern of life as soon as possible is eligi- measures to save lives, to protect pub- ble. Such transportation is intended to lic health and safety, and to protect supplement but not replace predisaster improved property are eligible. transportation facilities that remain (2) In determining whether emer- operable after a major disaster. FEMA gency work is required, the Regional funding for such transportation will be Director may require certification by discontinued as soon as the needs have local State, and/or Federal officials been met. that a threat exists, including identification and evaluation of the threat § 206.226 Restoration of damaged facilities. and recommendations of the emergency work necessary to cope with the Work to restore eligible facilities on threat. the basis of the design of such facilities (3) In order to be eligible, emergency as they existed immediately prior to protective measures must: the disaster and in conformity with the (i) Eliminate or lessen immediate following is eligible: threats to live, public health or safety; (a) Assistance under other Federal or agency (OFA) programs. (1) Generally, (ii) Eliminate or lessen immediate disaster assistance will not be made threats of significant additional dam- available under the Stafford Act when

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another Federal agency has specific au- predisaster construction of facility to thority to restore facilities damaged or be eligible, the standards must: destroyed by an event which is de- (1) Apply to the type of repair or res- clared a major disaster. toration required; (2) An exception to the policy de- (Standards may be different for new scribed in paragraph (a)(1) of this sec- construction and repair work) tion exists for public elementary and (2) Be appropriate to the predisaster secondary school facilities which are use of the facility; otherwise eligible for assistance from (3)(i) Be found reasonable, in writing, the Department of Education (ED) and formally adopted and implemented under 20 U.S.C. 241–1 and 20 U.S.C. 646. by the State or local government on or Such facilities are also eligible for as- before the disaster declaration date or sistance from FEMA under the Stafford be a legal Federal requirement applica- Act, and grantees shall accept applicable to the type of restoration. tions from local educational agencies (ii) This paragraph (b) applies to for assistance under the Stafford Act. local governments on January 1, 1999 (3) The exception does not cover pay- and to States on January 1, 2000. Until ment of increased current operating ex- the respective applicability dates, the penses or replacement of lost revenues standards must be in writing and for- as provided in 20 U.S.C. 241–1(a) and im- mally adopted by the applicant prior to plemented by 34 CFR 219.14. Such as- project approval or be a legal Federal sistance shall continue to be granted or State requirement applicable to the and administered by the Department of type of restoration. Education. (4) Apply uniformly to all similar (b) Mitigation planning. In order to re- types of facilities within the jurisdic- ceive assistance under this section, as tion of owner of the facility; and of November 1, 2003, the State must (5) For any standard in effect at the have in place a FEMA approved State time of a disaster, it must have been Mitigation Plan in accordance with 44 enforced during the time it was in ef- CFR part 201. fect. (e) Hazard mitigation. In approving (c) Private nonprofit facilities. Eligible grant assistance for restoration of fa- private nonprofit facilities may receive cilities, the Regional Director may re- funding under the following conditions: quire cost effective hazard mitigation (1) The facility provides critical serv- measures not required by applicable ices, which include power, water (in- standards. The cost of any require- cluding water provided by an irrigation ments for hazard mitigation placed on organization or facility in accordance restoration projects by FEMA will be with § 206.221(e)(3)), sewer services, an eligible cost for FEMA assistance. wastewater treatment, communica- (f) Repair vs. replacement. (1) A facil- tions, emergency medical care, fire de- ity is considered repairable when dis- partment services, emergency rescue, aster damages do not exceed 50 percent and nursing homes; or of the cost of replacing a facility to its (2) The private nonprofit organiza- predisaster condition, and it is feasible tion not falling within the criteria of to repair the facility so that it can per- § 206.226(b)(1) has applied for a disaster form the function for which it was loan under section 7(b) of the Small being used as well as it did imme- Business Act (15 U.S.C.636(b)) and diately prior to the disaster. (i) The Small Business Administra- (2) If a damaged facility is not repair- tion has declined the organization’s ap- able in accordance with paragraph plication; or (d)(1) of this section, approved restora- (ii) Has eligible damages greater than tive work may include replacement of the maximum amount of the loan for the facility. The applicant may elect to which it is eligible, in which case the perform repairs to the facility, in lieu excess damages are eligible for FEMA of replacement, if such work is in con- assistance. formity with applicable standards. (d) Standards. For the costs of Fed- However, eligible costs shall be limited eral, State, and local repair or replace- to the less expensive of repairs or re- ment standards which change the placement.

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(3) An exception to the limitation in books or publications damaged or de- paragraph (d)(2) of this section may be stroyed. Cataloging and other work in- allowed for facilities eligible for or on cidental to replacement are eligible. the National Register of Historic Prop- (j) Beaches. (1) Replacement of sand erties. If an applicable standard re- on an unimproved natural beach is not quires repair in a certain manner, costs eligible. associated with that standard will be (2) Improved beaches. Work on an im- eligible. proved beach may be eligible under the (g) Relocation. (1) The Regional Direc- following conditions: tor may approve funding for and re- (i) The beach was constructed by the quire restoration of a destroyed facil- placement of sand (of proper grain size) ity at a new location when: to a designed elevation, width, and (i) The facility is and will be subject to repetitive heavy damage; slope; and (ii) The approval is not barred by (ii) A maintenance program involv- other provisions of title 44 CFR; and ing periodic renourishment of sand (iii) The overall project, including all must have been established and ad- costs, is cost effective. hered to by the applicant. (2) When relocation is required by the (k) Restrictions—(1) Alternative use fa- Regional Director, eligible work in- cilities. If a facility was being used for cludes land acquisition and ancillary purposes other than those for which it facilities such as roads and utilities, in was designed, restoration will only be addition to work normally eligible as eligible to the extent necessary to re- part of a facility reconstruction. Demo- store the immediate predisaster alter- lition and removal of the old facility is nate purpose. also an eligible cost. (2) Inactive facilities. Facilities that (3) When relocation is required by the were not in active use at the time of Regional Director, no future funding the disaster are not eligible except in for repair or replacement of a facility those instances where the facilities at the original site will be approved, were only temporarily inoperative for except those facilities which facilitate repairs or remodeling, or where active an open space use in accordance with 44 use by the applicant was firmly estab- CFR part 9. lished in an approved budget or the (4) When relocation is required by the owner can demonstrate to FEMA’s sat- Regional Director, and, instead of relo- isfaction an intent to begin use within cation, the applicant requests approval a reasonable time. of an alternate project [see § 206.203(d)(2)], eligible costs will be [55 FR 2307, Jan. 23, 1990, as amended at 58 limited to 90 percent of the estimate of FR 55022, Oct. 25, 1993; 63 FR 5897, Feb. 5, 1998; restoration at the original location ex- 66 FR 22445, May 4, 2001; 67 FR 8854, Feb. 26, cluding hazard mitigation measures. 2002] (5) If relocation of a facility is not feasible or cost effective, the Regional § 206.227 Snow assistance. Director shall disapprove Federal fund- Emergency or major disaster declara- ing for the original location when he/ tions based on snow or blizzard condi- she determines in accordance with 44 tions will be made only for cases of CFR parts 9, 10, 201, or subpart M of record or near record snowstorms, as this part 206, that restoration in the established by official government original location is not allowed. In records. Federal assistance will be pro- such cases, an alternative project may vided for all costs eligible under 44 CFR be applied for. 206.225 for a specified period of time (h) Equipment and furnishings. If which will be determined by the cir- equipment and furnishings are dam- cumstances of the event. aged beyond repair, comparable items are eligible as replacement items. [62 FR 45330, Aug. 27, 1997] (i) Library books and publications. Re- placement of library books and publi- § 206.228 Allowable costs. cations is based on an inventory of the General policies for determining al- quantities of various categories of lowable costs are established in 44 CFR

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13.22. Exceptions to those policies as al- ages of the total amount of Federal as- lowed in 44 CFR 13.4 and 13.6 are ex- sistance that we provide for all sub- plained below. grantees in the State under sections (a) Eligible direct costs—(1) Applicant- 403, 406, 407, 502, and 503 of the Act: owned equipment. Reimbursement for (A) For the first $100,000 of total as- ownership and operation costs of appli- sistance provided (Federal share), three cant-owned equipment used to perform percent of such assistance. eligible work shall be provided in ac- (B) For the next $900,000, two percent cordance with the following guidelines: of such assistance. (i) Rates established under State guide- (C) For the next $4,000,000, one per- lines. In those cases where an applicant cent of such assistance. uses reasonable rates which have been (D) For assistance over $5,000,000, established or approved under State one-half percent of such assistance. guidelines, in its normal daily oper- (ii) Subgrantee. Pursuant to section ations, reimbursement for applicant- 406(f)(1) of the Stafford Act, necessary owned equipment which has an hourly costs of requesting, obtaining, and ad- rate of $75 or less shall be based on ministering Federal disaster assistance such rates. Reimbursement for equip- subgrants will be covered by an allow- ment which has an hourly rate in ex- ance which is based on the following cess of $75 shall be determined on a percentages of net eligible costs under case by case basis by FEMA. sections 403, 406, 407, 502, and 503 of the (ii) Rates established under local guide- Act, for an individual applicant (appli- lines. Where local guidelines are used to cants in this context include State establish equipment rates, reimburse- agencies): ment will be based on those rates or (A) For the first $100,000 of net eligi- rates in a Schedule of Equipment Rates ble costs, three percent of such costs; published by FEMA, whichever is (B) For the next $900,000, two percent lower. If an applicant certifies that its of such costs; locally established rates do not reflect actual costs, reimbursement may be (C) For the next $4,000,000, one per- based on the FEMA Schedule of Equip- cent of such costs; ment Rates, but the applicant will be (D) For those costs over $5,000,000, expected to provide documentation if one-half percent of such costs. requested. If an applicant wishes to (3) State Management Administra- claim an equipment rate which exceeds tive Costs. the FEMA Schedule, it must document (i) Grantee. Except for the items list- the basis for that rate and obtain ed in paragraph (a)(2)(i) of this section, FEMA approval of an alternate rate. other administrative costs shall be (iii) No established rates. The FEMA paid in accordance with 44 CFR 13.22. Schedule of Equipment Rates will be (ii) Subgrantee. No other administra- the basis for reimbursement in all tive costs of a subgrantee are eligible cases where an applicant does not have because the percentage allowance in established equipment rates. paragraph (a)(2)(ii) of this section cov- (2) Statutory Administrative Costs—(i) ers necessary costs of requesting, ob- Grantee. Under section 406(f)(2) of the taining and administering Federal as- Stafford Act, we will pay you, the sistance. State, an allowance to cover the ex- (4) Force Account Labor Costs. The traordinary costs that you incur to for- straight- or regular-time salaries and mulate Project Worksheets for small benefits of a subgrantee’s permanently and large projects, to validate small employed personnel are not eligible in projects, to prepare final inspection re- calculating the cost of eligible work ports, project applications, final au- under sections 403 and 407 of the Staf- dits, and to make related field inspec- ford Act, 42 U.S.C. 5170b and 5173. For tions by State employees. Eligible the performance of eligible permanent costs include overtime pay and per restoration under section 406 of the diem and travel expenses, but do not Act, 42 U.S.C. 5172, straight-time sala- include regular time for your State em- ries and benefits of a subgrantee’s per- ployees. The allowance to the State manently employed personnel are eligi- will be based on the following percent- ble.

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(b) Eligible indirect costs—(1) Grantee. gation techniques which may be avail- Indirect costs of administering the dis- able to reduce the incidence and sever- aster program are eligible in accord- ity of future damage. ance with the provisions of 44 CFR part 13 and OMB Circular A–87. § 206.251 Definitions. (2) No indirect costs of a Subgrantee. (a) Assistance means any form of a subgrantee are separately eligible be- Federal grant under section 406 of the cause the percentage allowance in paragraph (a)(2)(ii) of this section cov- Stafford Act to replace, restore, repair, ers necessary costs of requesting, ob- reconstruct, or construct any facility taining and administering Federal as- and/or its contents as a result of a sistance. major disaster. (b) Building means a walled and [55 FR 2307, Jan. 23, 1990, as amended at 58 roofed structure, other than a gas, or FR 47996, Sept. 14, 1993; 63 FR 64426, Nov. 20, 1998; 64 FR 55161, Oct. 12, 1999] liquid storage tank, that is principally above ground and affixed to a perma- §§ 206.229–206.249 [Reserved] nent site, as well as a manufactured home on a permanent foundation. Subpart I—Public Assistance (c) Community means any State or po- Insurance Requirements litical subdivision thereof, or any In- dian tribe or authorized tribal organi- SOURCE: 56 FR 64560, Dec. 11, 1991, unless zation, or Alaskan Native Village or otherwise noted. authorized native organization which has authority to adopt and enforce § 206.250 General. floodplain management regulations for (a) Sections 311 and 406(d) of the Staf- the areas within its jurisdiction. ford Act, and the Flood Disaster Pro- (d) National Flood Insurance Program tection Act of 1973, Public Law 93–234, (NFIP) means the program authorized set forth certain insurance require- by the National Flood Insurance Act of ments which apply to disaster assist- 1968, as amended, 42 U.S.C. 4001 et seq. ance provided by FEMA. The require- (e) Special flood hazard area means an ments of this subpart apply to all as- area having special flood, mudslide, sistance provided pursuant to section and/or flood-related erosion hazards, 406 of the Stafford Act with respect to any major disaster declared by the and shown on a Flood Hazard Boundary President after November 23, 1988. map (FHBM) or the Flood Insurance (b) Insurance requirements pre- Rate Map (FIRM) issued by FEMA as scribed in this subpart shall apply Zone A, AO, A1–30, AE, A99, AH, VO, equally to private nonprofit (PNP) fa- V1–30 VE, V, M, or E. ‘‘Special flood cilities which receive assistance under hazard area’’ is synonymous with section 406 of the Act. PNP organiza- ‘‘special hazard area’’, as defined in 44 tions shall submit the necessary docu- CFR part 59. mentation and assurances required by (f) Standard Flood Insurance Policy this subpart to the Grantee. means the flood insurance policy issued (c) Actual and anticipated insurance by the Federal Insurance Adminis- recoveries shall be deducted from oth- trator, or by a Write-Your-Own Com- erwise eligible costs, in accordance pany pursuant to 44 CFR 62.23. with this subpart. (d) The full coverage available under § 206.252 Insurance requirements for the standard flood insurance policy facilities damaged by flood. from the National Flood Insurance (a) Where an insurable building dam- Program (NFIP) will be subtracted from otherwise eligible costs for a aged by flooding is located in a special building and its contents within the flood hazard area identified for more special flood hazard area in accordance than one year by the Director, assist- with § 206.252. ance pursuant to section 406 of the (e) The insurance requirements of Stafford Act shall be reduced. The this subpart should not be interpreted amount of the reduction shall be the as a substitute for various hazard miti- maximum amount of the insurance

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proceeds which would have been re- the actual amount of insurance pro- ceived had the building and its con- ceeds relating to the eligible costs. tents been fully covered by a standard (b)(1) Assistance under section 406 of flood insurance policy. the Stafford Act will be approved only (b) The reduction stated above shall on the condition that the grantee ob- not apply to a PNP facility which tain and maintain such types and could not be insured because it was lo- amounts of insurance as are reasonable cated in a community not partici- and necessary to protect against future pating in the NFIP. However, the pro- loss to such property from the types of visions of the Flood Disaster Protec- hazard which caused the major dis- tion Act of 1973 prohibit approval of as- aster. The extent of insurance to be resistance for the PNP unless the com- quired will be based on the eligible munity agrees to participate in the damage that was incurred to the dam- NFIP within six months after the aged facility as a result of the major major disaster declaration date, and disaster. The Regional Director shall the required flood insurance is pur- not require greater types and extent of chased. insurance than are certified as reason- (c) Prior to approval of a Federal able by the State Insurance Commis- grant for the restoration of a facility sioner. and its contents which were damaged (2) Due to the high cost of insurance, by a flood, the Grantee shall notify the some applicants may request to insure Regional Director of any entitlement the damaged facilities under a blanket to an insurance settlement or recovery. insurance policy covering all their fa- The Regional Director shall reduce the cilities, an insurance pool arrange- eligible costs by the amount of insur- ment, or some combination of these op- ance proceeds which the grantee re- tions. Such an arrangement may be ac- ceives. cepted for other than flood damages. (d) The grantee or subgrantee is re- However, if the same facility is dam- quired to obtain and maintain flood in- aged in a similar future disaster, eligi- surance in the amount of eligible dis- ble costs will be reduced by the amount aster assistance, as a condition of re- of eligible damage sustained on the ceiving Federal assistance that may be previous disaster. available. This requirement also ap- (c) The Regional Director shall notify plies to insurable flood damaged facili- the Grantee of the type and amount of ties located outside a special flood haz- insurance required. The grantee may ard area when it is reasonably avail- request that the State Insurance Com- able, adequate, and necessary. How- missioner review the type and extent of ever, the Regional Director shall not insurance required to protect against require greater types and amounts of future loss to a disaster-damaged facil- insurance than are certified as reason- ity, the Regional Director shall not re- able by the State Insurance Commis- quire greater types and extent of insur- sioner. The requirement to purchase ance than are certified as reasonable flood insurance is waived when eligible by the State Insurance Commissioner. costs for an insurable facility do not (d) The requirements of section 311 of exceed $5,000. the Stafford Act are waived when eligible costs for an insurable facility do § 206.253 Insurance requirements for not exceed $5,000. The Regional Direc- facilities damaged by disasters tor may establish a higher waiver other than flood. amount based on hazard mitigation ini- (a) Prior to approval of a Federal tiatives which reduce the risk of future grant for the restoration of a facility damages by a disaster similar to the and its contents which were damaged one which resulted in the major dis- by a disaster other than flood, the aster declaration which is the basis for Grantee shall notify the Regional Di- the application for disaster assistance. rector of any entitlement to insurance (e) The Grantee shall provide assur- settlement or recovery for such facility ances that the required insurance cov- and its contents. The Regional Direc- erage will be maintained for the antici- tor shall reduce the eligible costs by pated life of the restorative work or

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the insured facility, whichever is the part 206 of subchapter D are applicable lesser. to this subject. (f) No assistance shall be provided (a) Consultation means that process under section 406 of the Stafford Act by which FEMA informs the Secretary for any facility for which assistance of the Interior through his/her des- was provided as a result of a previous ignated agent of FEMA proposed dis- major disaster unless all insurance re- aster assistance actions on a des- quired by FEMA as a condition of the ignated unit of the Coastal Barrier Re- previous assistance has been obtained sources System and by which the Sec- and maintained. retary makes comments to FEMA about the appropriateness of that ac- §§ 206.254–206.339 [Reserved] tion. Approval by the Secretary is not required in order that an action be car- Subpart J—Coastal Barrier ried out. Resources Act (b) Essential link means that portion of a road, utility, or other facility orig- SOURCE: 55 FR 2311, Jan. 23, 1990, unless inating outside of the system unit but otherwise noted. providing access or service through the unit and for which no alternative route § 206.340 Purpose of subpart. is reasonably available. This subpart implements the Coastal (c) Existing facility on a unit of CBRS Barrier Resources Act (CBRA) (Pub. L. established by Public Law 97–348 means 97–348) as that statute applies to dis- a publicly owned or operated facility aster relief granted to individuals and on which the start of a construction State and local governments under the took place prior to October 18, 1982, and Stafford Act. CBRA prohibits new ex- for which this fact can be adequately penditures and new financial assistance documented. In addition, a legally within the Coastal Barrier Resources valid building permit or equivalent System (CBRS) for all but a few types documentation, if required, must have of activities identified in CBRA. This been obtained for the construction subpart specifies what actions may and prior to October 18, 1982. If a facility may not be carried out within the has been substantially improved or ex- CBRS. It establishes procedures for panded since October 18, 1982, it is not compliance with CBRA in the adminis- an existing facility. For any other unit tration of disaster assistance by added to the CBRS by amendment to FEMA. Public Law 97–348, the enactment date of such amendment is substituted for § 206.341 Policy. October 18, 1982, in this definition. It shall be the policy of FEMA to (d) Expansion means changing a facil- achieve the goals of CBRA in carrying ity to increase its capacity or size. out disaster relief on units of the (e) Facility means ‘‘public facility’’ as Coastal Barrier Resources System. It is defined in § 206.201. This includes any FEMA’s intent that such actions be publicly owned flood control, naviga- consistent with the purpose of CBRA to tion, irrigation, reclamation, public minimize the loss of human life, the power, sewage treatment and collec- wasteful expenditure of Federal reve- tion, water supply and distribution, nues, and the damage to fish, wildlife watershed development, or airport fa- and other natural resources associated cility; and nonfederal-aid street, road, with coastal barriers along the Atlan- or highway; and any other public build- tic and Gulf coasts and to consider the ing, structure, or system, including means and measures by which the long- those used for educational, rec- term conservation of these fish, wild- reational, or cultural purposes, or any life, and other natural resources may park. be achieved under the Stafford Act. (f) Financial assistance means any form of Federal loan, grant guaranty, § 206.342 Definitions. insurance, payment rebate, subsidy or Except as otherwise provided in this any other form of direct or indirect subpart, the definitions set forth in Federal assistance.

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(g) New financial assistance on a unit (k) System unit means any undevel- of the CBRS established by Public Law oped coastal barrier, or combination of 97–348 means an approval by FEMA of a closely related undeveloped coastal project application or other disaster barriers included within the Coastal assistance after October 18, 1982. For Barrier Resources System as estab- any other unit added to the CBRS by lished by the section 4 of the CBRA, or amendment to Public Law 97–348, the as modified by the Secretary in accord- enactment date such amendment is ance with that statute. substituted for October 18, 1982, in this definition. § 206.343 Scope. (h) Start of construction for a struc- (a) The limitations on disaster assist- ture means the first placement of per- ance as set forth in this subpart apply manent construction, such as the only to FEMA actions taken on a unit placement of footings or slabs or any of the Coastal Barrier Resources Sys- work beyond the stage of excavation. tem or any conduit to such unit, in- Permanent construction for a struc- cluding, but not limited to a bridge, ture does not include land preparation causeway, utility, or similar facility. such as clearing, grading, and place- (b) FEMA assistance having a social ment of fill, nor does it include exca- program orientation which is unrelated vation for a basement, footings, or to development is not subject to the re- piers. For a facility which is not a quirements of these regulations. This structure, start of construction means assistance includes: the first activity for permanent con- (1) Individual and Family Grants struction of a substantial part of the that are not for acquisition or con- facility. Permanent construction for a struction purposes; facility does not include land prepara- (2) Crisis counseling; tion such as clearing and grubbing but would include excavation and place- (3) Disaster Legal services; and ment of fill such as for a road. (4) Disaster unemployment assist- (i) Structure means a walled and ance. roofed building, including a gas or liquid storage tank, that is principally § 206.344 Limitations on Federal expenditures. above ground, as well as a mobile home. Except as provided in §§ 206.345 and (j) Substantial improvement means any 206.346, no new expenditures or finan- repair, reconstruction or other im- cial assistance may be made available provement of a structure or facility, under authority of the Stafford Act for that has been damaged in excess of, or any purpose within the Coastal Barrier the cost of which equals or exceeds, 50 Resources System, including but not percent of the market value of the limited to: structure or placement cost of the fa- (a) Construction, reconstruction, re- cility (including all ‘‘public facilities’’) placement, repair or purchase of any as defined in the Stafford Act) either: structure, appurtenance, facility or re- (1) Before the repair or improvement lated infrastructure; is started; or (b) Construction, reconstruction, re- (2) If the structure or facility has placement, repair or purchase of any been damaged and is proposed to be re- road, airport, boat landing facility, or stored, before the damage occurred. If a other facility on, or bridge or causeway facility is a link in a larger system, the to, any System unit; and percentage of damage will be based on (c) Carrying out of any project to the relative cost of repairing the dam- prevent the erosion of, or to otherwise aged facility to the replacement cost of stabilize, any inlet, shoreline, or that portion of the system which is inshore area, except that such assist- operationally dependent on the facil- ance and expenditures may be made ity. The term substantial improvement available on units designated pursuant does not include any alternation of a to Section 4 on maps numbered S01 structure or facility listed on the Na- through S08 for purposes other than en- tional Register of Historic Places or a couraging development and, in all State Inventory of Historic Places. units, in cases where an emergency

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threatens life, land, and property im- (5) Repair of facilities for the study, mediately adjacent to that unit. management, protection and enhancement of fish and wildlife resources and § 206.345 Exceptions. habitats, including but not limited to, The following types of disaster as- acquisition of fish and wildlife habitats sistance actions are exceptions to the and related lands, stabilization prohibitions of § 206.344. projects for fish and wildlife habitats, (a) After consultation with the Sec- and recreational projects; and retary of the Interior, the FEMA Re- (6) Repair of nonstructural proejcts gional Director may make disaster as- for shoreline stabilization that are de- sistance available within the CBRS for: signed to mimic, enhance, or restore (1) Replacement, reconstruction, or natural stabilization systems. repair, but not the expansion, of publicly owned or publicly operated roads, § 206.346 Applicability to disaster as- structures, or facilities that are essen- sistance. tial links in a larger network or sys- (a) Emergency assistance. The Re- tem; gional Director may approve assistance (2) Repair of any facility necessary pursuant to sections 402, 403, or 502 of for the exploration, extraction, or the Stafford Act, for emergency ac- transportation of energy resources tions which are essential to the saving which activity can be carried out only of lives and the protection of property on, in, or adjacent to coastal water and the public health and safety, are areas because the use or facility re- necessary to alleviate the emergency, quires access to the coastal water and are in the public interest. Such ac- body; and tions include but are not limited to: (3) Restoration of existing channel (1) Removal of debris from public improvements and related structures, property; such as jetties, and including the dis- (2) Emergency protection measures posal of dredge materials related to to prevent loss of life, prevent damage such improvements. to improved property and protect pub- (b) After consultation with the Sec- lic health and safety; retary of the Interior, the FEMA Re- (3) Emergency restoration of essen- gional Director may make disaster as- tial community services such as elec- sistance available within the CBRS for tricity, water or sewer; the following types of actions, provided (4) Provision of access to a private such assistance is consistent with the residence; purposes of CBRA; (5) Provision of emergency shelter by (1) Emergency actions essential to means of providing emergency repair of the saving of lives and the protection utilities, provision of heat in the sea- of property and the public health and son requiring heat, or provision of safety, if such actions are performed minimal cooking facilities; pursuant to sections 402, 403, and 502 of (6) Relocation of individuals or prop- the Stafford Act and are limited to ac- erty out of danger, such as moving a tions that are necessary to alleviate mobile home to an area outside of the the impacts of the event; CBRS (but disaster assistance funds (2) Replacement, reconstruction, or may not be used to relocate facilities repair, but not the expansion, of pub- back into the CBRS); licly owned or publicly operated roads, (7) Home repairs to private owner-oc- structures, or facilities, except as pro- cupied primary residences to make vided in § 206.347(c)(5); them habitable; (3) Repair of air and water navigation (8) Housing eligible families in exist- aids and devices, and of the access ing resources in the CBRS; and thereto; (9) Mortgage and rental payment as- (4) Repair of facilities for scientific sistance. research, including but not limited to (b) Permanent restoration assistance. aeronautical, atmospheric, space, geo- Subject to the limitations set out logic, marine, fish and wildlife and below, the Regional Director may ap- other research, development, and appli- prove assistance for the repair, recon- cations; struction, or replacement but not the

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expansion of the following publicly curred that the emergency work listed owned or operated facilities and cer- in § 206.346(a) is consistent with the tain private nonprofit facilities. purposes of CBRA and may be approved (1) Roads and bridges; by FEMA without additional consulta- (2) Drainage structures, dams, levees; tion. (3) Buildings and equipment; (2) Notification. As soon as prac- (4) Utilities (gas, electricity, water, ticable, the Regional Director will no- etc.); and tify the designated Department of the (5) Park and recreational facilities. Interior representative at the regional level of emergency projects that have § 206.347 Requirements. been approved. Upon request from the (a) Location determination. For each Secretary of the Interior, the Associate disaster assistance action which is pro- Director, SLPS, or his or her designee posed on the Atlantic or Gulf Coasts, will supply reports of all current emer- the Regional Director shall: gency actions approved on CBRS units. (1) Review a proposed action’s loca- Notification will contain the following tion to determine if the action is on or information: connected to the CBRS unit and there- (i) Identification of the unit in the by subject to these regulations. The ap- CBRS; propriate Department of Interior map identifying units of the CBRS will be (ii) Description of work approved; the basis of such determination. The (iii) Amount of Federal funding; and CBRS units are also identified on (iv) Additional measures required. FEMA Flood Insurance Maps (FIRM’s) (c) Permanent restoration assistance. for the convenience of field personnel. For each permanent restoration assist- (2) If an action is determined not to ance action including but not limited be on or connected to a unit of the to those listed in § 206.346(b), the Re- CBRS, no further requirements of these gional Director shall meet the require- regulations needs to be met, and the ments set out below. action may be processed under other (1) Essential links. For the repair or applicable disaster assistance regula- replacement of publicly owned or oper- tions. ated roads, structures or facilities (3) If an action is determined to be on which are essential links in a larger or connected to a unit of the CBRS, it network or system: is subject to the consultation and con- (i) No facility may be expanded be- sistency requirements of CBRA as pre- yond its predisaster design. scribed in §§ 206.348 and 206.349. (ii) Consultation in accordance with (b) Emergency disaster assistance. For § 206.348 shall be accomplished. each emergency disaster assistance ac- (2) Channel improvements. For the re- tion listed in § 206.346(a), the Regional pair of existing channels, related struc- Director shall perform the required tures and the disposal of dredged mate- consultation. CBRA requires that rials: FEMA consult with the Secretary of (i) No channel or related structure the Interior before taking any action may be repaired, reconstructed, or re- on a System unit. The purpose of such placed unless funds were appropriated consultation is to solicit advice on whether the action is or is not one for the construction of such channel or which is permitted by section 6 of structure before October 18, 1982; CBRA and whether the action is or is (ii) Expansion of the facility beyond not consistent with the purposes of its predisaster design is not permitted; CBRA as defined in section 1 of that (iii) Consultation in accordance with statute. § 206.348 shall be accomplished. (1) FEMA has conducted advance con- (3) Energy facilities. For the repair of sultation with the Department of the facilities necessary for the exploration, Interior concerning such emergency ac- extraction or transportation of energy tions. The result of the consultation is resources: that the Secretary of the Interior (i) No such facility may be repaired, through the Assistance Secretary for reconstructed or replaced unless such Fish and Wildlife and Parks has con- function can be carried out only in, on,

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or adjacent to a coastal water area be- combined with other funding, resulting cause the use or facility requires access in an expansion of the facility beyond to the coastal water body; the predisaster design. If a facility is (ii) Consultation in accordance with exempt from the expansion prohibi- § 206.348 shall be accomplished. tions of CBRA by virtue of falling into (4) Special-purpose facilities. For the one of the categories identified in para- repair of facilities used for the study, graph (c)(1), (2), (3), or (4) of this sec- management, protection or enhance- tion, then an improved project for such ment of fish and wildlife resources and facilities is not precluded. habitats and related recreational (8) Alternate project. A new or en- projects; air and water navigation aids larged facility may not be constructed and devices and access thereto; and fa- on a unit of the CBRS under the provi- cilities used for scientific research, in- sions of the Stafford Act unless the fa- cluding but not limited to aero- cility is exempt from the expansion nautical, atmospheric, space, geologic, prohibition of CBRA by virtue of fall- marine, fish and wildlife and other re- ing into one of the categories identified search, development, and applications; in paragraph (c)(1), (2), (3), or (4) of this and, nonstructural facilities that are section. designed to mimic, enhance or restore natural shoreline stabilization sys- § 206.348 Consultation. tems: As required by section 6 of the CBRA, (i) Consultation in accordance with the FEMA Regional Director will con- § 206.348 shall be accomplished; sult with the designated representative (ii) No such facility may be repaired, of the Department of the Interior (DOI) reconstructed, or replaced unless it is at the regional level before approving otherwise consistent with the purposes any action involving permanent res- of CBRA in accordance with § 206.349. toration of a facility or structure on or (5) Other public facilities. For the re- attached to a unit of the CBRS. pair, reconstruction, or replacement of (a) The consultation shall be by writ- publicly owned or operated roads, ten memorandum to the DOI represent- structures, or facilities that do not fall ative and shall contain the following: within the categories identified in (1) Identification of the unit within paragraphs (c)(1), (2), (3), and (4) of this the CBRS; section: (2) Description of the facility and the (i) No such facility may be repaired, proposed repair or replacement work; reconstructed, or replaced unless it is including identification of the facility an ‘‘existing facility;’’ as an exception under section 6 of (ii) Expansion of the facility beyond CBRA; and full justification of its sta- its predisaster design is not permitted; tus as an exception; (iii) Consultation in accordance with (3) Amount of proposal Federal fund- § 206.348 shall be accomplished; ing; (iv) No such facility may be repaired, (4) Additional mitigation measures reconstructed, or replaced unless it is required; and otherwise consistent with the purposes (5) A determination of the action’s of CBRA in accordance with § 206.349. consistency with the purposes of (6) Private nonprofit facilities. For eli- CBRA, if required by these regulations, gible private nonprofit facilities as de- in accordance with § 206.349. fined in these regulations and of the (b) Pursuant to FEMA understanding type described in paragraphs (c)(1), (2), with DOI, the DOI representative will (3), and (4) of this section: provide technical information and an (i) Consultation in accordance with opinion whether or not the proposed § 206.348 shall be accomplished. action meets the criteria for a CBRA (ii) No such facility may be repaired, exception, and on the consistency of reconstructed, or replaced unless it is the action with the purposes of CBRA otherwise consistent with the purposes (when such consistency is required). of CBRA in accordance with § 206.349. DOI is expected to respond within 12 (7) Improved project. An improved working days from the date of the project may not be approved for a facil- FEMA request for consultation. If a re- ity in the CBRS if such grant is to be sponse is not received within the time

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limit, the FEMA Regional Director which its redevelopment would be en- shall contact the DOI representative to couraged; and determine if the request for consulta- (6) Encouragement of new develop- tion was received in a timely manner. ment. If it was not, an appropriate extension (b) Mitigation. FEMA shall modify ac- for response will be given. Otherwise, tions by means of practicable mitiga- he or she may assume DOI concurrence tion measures to minimize adverse ef- and proceed with approval of the pro- fects of the types listed in paragraph posed action. (a) of this section. (c) For those cases in which the re- (c) Conservation. FEMA shall identify gional DOI representative believes that practicable measures that can be incor- the proposed action should not be porated into the proposed action and taken and the matter cannot be re- will conserve natural and wildlife resolved at the regional level, the FEMA sources. Regional Director will submit the issue (d) Finding. For those actions re- to the FEMA Assistant Associate Di- quired to be consistent with the pur- rector for Disaster Assistance Pro- poses of CBRA, the above evaluation grams (DAP). In coordination with the must result in a finding of consistency Office of General Counsel (OGC), con- with CBRA by the Regional Director sultation will be accomplished at the before funding may be approved for FEMA National Office with the DOI that action. consultation officer. After this consultation, the Assistant Associate Di- §§ 206.350–206.359 [Reserved] rector, DAP, determines whether or not to approve the proposed action. Subpart K—Community Disaster § 206.349 Consistency determinations. Loans Section 6(a)(6) of CBRA requires that certain actions be consistent with the SOURCE: 55 FR 2314, Jan. 23, 1990, unless purposes of that statute if the actions otherwise noted. are to be carried out on a unit of the § 206.360 Purpose. CBRA. The purpose of CBRA, as stated in section 2(b) of that statute, is to This subpart provides policies and minimize the loss of human life, waste- procedures for local governments and ful expenditure of Federal revenues, State and Federal officials concerning and the damage to fish, wildlife, and the Community Disaster Loan program other natural resources associated with under section 417 of the Act. the coastal barriers along with Atlan- tic and Gulf coasts. For those actions § 206.361 Loan program. where a consistency determination is (a) General. The Associate Director, required, the FEMA Regional Director State and Local Programs and Support shall evaluate the action according to (the Associate Director) may make a the following procedures, and the eval- Community Disaster Loan to any local uation shall be included in the written government which has suffered a sub- request for consultation with DOI. stantial loss of tax and other revenues (a) Impact identification. FEMA shall as a result of a major disaster and identify impacts of the following types which demonstrates a need for Federal that would result from the proposed ac- financial assistance in order to perform tion: its governmental functions. (1) Risks to human life; (b) Amount of loan. The amount of the (2) Risks of damage to the facility loan is based upon need, not to exceed being repaired or replaced; 25 percent of the operating budget of (3) Risks of damage to other facili- the local government for the fiscal ties; year in which the disaster occurs, but (4) Risks of damage to fish, wildlife, shall not exceed $5 million. The term and other natural resources; fiscal year as used in this subpart (5) Condition of existing development means the local government’s fiscal served by the facility and the degree to year.

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(c) Interest rate. The interest rate is losses and additional unreimbursed dis- the rate for five year maturities as de- aster-related municipal operating ex- termined by the Secretary of the penses. Treasury in effect on the date that the (h) Relation to other assistance. Any Promissory Note is executed. This rate community disaster loans including is from the monthly Treasury schedule cancellations made under this subpart of certified interest rates which takes shall not reduce or otherwise affect into consideration the current average any commitments, grants, or other as- yields on outstanding marketable obli- sistance under the Act or these regula- gations of the United States, adjusted tions. 1 to the nearest ⁄8 percent. [55 FR 2314, Jan. 23, 1990, as amended at 66 (d) Time limitation. The Associate Di- FR 22445, May 4, 2001] rector may approve a loan in either the fiscal year in which the disaster oc- § 206.362 Responsibilities. curred or the fiscal year immediately (a) The local government shall sub- following that year. Only one loan may mit the financial information required be approved under section 417(a) for by FEMA in the application for a Com- any local government as the result of a munity Disaster Loan and in the appli- single disaster. cation for loan cancellation, if sub- (e) Term of loan. The term of the loan mitted, and comply with the assur- is 5 years, unless otherwise extended by ances on the application, the terms and the Associate Director. The Associate conditions of the Promissory Note, and Director may consider requests for an these regulations. The local govern- extensions of loans based on the local ment shall send all loan application, government’s financial condition. The loan administration, loan cancellation, total term of any loan under section and loan settlement correspondence 417(a) normally may not exceed 10 through the GAR and the FEMA Re- years from the date the Promissory gional Office to the FEMA Associate Note was executed. However, when ex- Director. tenuating circumstances exist and the (b) The GAR shall certify on the loan Community Disaster Loan recipient application that the local government demonstrates an inability to repay the can legally assume the proposed in- loan within the initial 10 years, but debtedness and that any proceeds will agrees to repay such loan over an ex- be used and accounted for in compli- tended period of time, additional time ance with the FEMA-State Agreement may be provided for loan repayment. for the major disaster. States are en- (See § 206.367(c).) couraged to take appropriate pre-dis- (f) Use of loan funds. The local gov- aster action to resolve any existing ernment shall use the loaned funds to State impediments which would pre- carry on existing local government clude a local government from incur- functions of a municipal operation ring the increased indebtedness associ- character or to expand such functions ated with a loan in order to avoid pro- to meet disaster-related needs. The tracted delays in processing loan appli- funds shall not be used to finance cap- cation requests in major disasters or ital improvements nor the repair or emergencies. restoration of damaged public facili- (c) The Regional Director or designee ties. Neither the loan nor any cancelled shall review each loan application or portion of the loans may be used as the loan cancellation request received from nonFederal share of any Federal pro- a local government to ensure that it gram, including those under the Act. contains the required documents and (g) Cancellation. The Associate Direc- transmit the application to the Asso- tor shall cancel repayment of all or ciate Director. He/she may submit ap- part of a Community Disaster Loan to propriate recommendations to the As- the extent that he/she determines that sociate Director. revenues of the local government dur- (d) The Associate Director, or a des- ing the 3 fiscal years following the dis- ignee, shall execute a Promissory Note aster are insufficient to meet the oper- with the local government, and the Of- ating budget of that local government fice of Disaster Assistance Programs in because of disaster-related revenue Headquarters, FEMA, shall administer

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the loan until repayment or cancella- the succeeding fiscal year is the base tion is completed and the Promissory period for determining whether a local Note is discharged. government may suffer or has suffered (e) The Associate Director or des- a substantial loss of revenue. Criteria ignee shall approve or disapprove each used in determining whether a local loan request, taking into consideration government has or may suffer a sub- the information provided in the local stantial loss of tax and other revenue government’s request and the rec- include the following disaster-related ommendations of the GAR and the Re- factors: gional Director. The Associate Director (i) Whether the disaster caused a or designee shall approve or disapprove large enough reduction in cash receipts a request for loan cancellation in ac- from normal revenue sources, exclud- cordance with the criteria for cancellation in these regulations. ing borrowing, which affects signifi- (f) The Comptroller shall establish cantly and adversely the level and/or and maintain a financial account for categories of essential municipal serv- each outstanding loan and disburse ices provided prior to the disaster; funds against the Promissory Note. (ii) Whether the disaster caused a revenue loss of over 5 percent of total § 206.363 Eligibility criteria. revenue estimated for the fiscal year in (a) Local government. (1) The local which the disaster occurred or for the government must be located within the succeeding fiscal year; area designated by the Associate Direc- (3) Demonstrated need for financial as- tor as eligible for assistance under a sistance. The local government must major disaster declaration. In addition, demonstrate a need for financial assist- State law must not prohibit the local ance in order to perform its govern- government from incurring the indebt- mental functions. The criteria used in edness resulting from a Federal loan. making this determination include the (2) Criteria considered by FEMA in following: determining the eligibility of a local (i) Whether there are sufficient funds government for a Community Disaster to meet current fiscal year operating Loan include the loss of tax and other requirements; revenues as result of a major disaster, (ii) Whether there is availability of a demonstrated need for financial as- cash or other liquid assets from the sistance in order to perform its govern- prior fiscal year; mental functions, the maintenance of an annual operating budget, and the re- (iii) Current financial condition con- sponsibility to provide essential mu- sidering projected expenditures for nicipal operating services to the com- governmental services and availability munity. Eligibility for other assistance of other financial resources; under the Act does not, by itself, estab- (iv) Ability to obtain financial assist- lish entitlement to such a loan. ance or needed revenue from State and (b) Loan eligibility—(1) General. To be other Federal agencies for direct pro- eligible, the local government must gram expenditures; show that it may suffer or has suffered (v) Debt ratio (relationship of annual a substantial loss of tax and other rev- receipts to debt service); enues as a result of a major disaster or (vi) Ability to obtain financial assist- emergency, must demonstrate a need ance or needed revenue from State and for financial assistance in order to per- other Federal agencies for direct pro- form its governmental functions, and gram expenditures; must not be in arrears with respect to (vii) Displacement of revenue-pro- any payments due on previous loans. ducing business due to property de- Loan eligibility is based on the finan- struction; cial condition of the local government (viii) Necessity to reduce or elimi- and a review of financial information nate essential municipal services; and and supporting documentation accom- (ix) Danger of municipal insolvency. panying the application. (2) Substantial loss of tax and other rev- [55 FR 2314, Jan. 23, 1990, as amended at 66 enues. The fiscal year of the disaster or FR 22445, May 4, 2001]

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§ 206.364 Loan application. for the General Fund and all other (a) Application. (1) The local govern- funds maintained by the local government shall submit an application for a ment. Community Disaster Loan through the (ii) Each application for a Commu- GAR. The loan must be justified on the nity Disaster Loan must also include: basis of need and shall be based on the (A) A statement by the local govern- actual and projected expenses, as a re- ment identifying each fund (i.e. Gen- sult of the disaster, for the fiscal year eral Fund, etc.) which is included as its in which the disaster occurred and for annual Operating budget, and the 3 succeeding fiscal years. The loan (B) A copy of the pertinent State application shall be prepared by the af- statutes, ordinance, or regulations fected local government and be ap- which prescribe the local government’s proved by the GAR. FEMA has deter- system of budgeting, accounting and fi- mined that a local government, in ap- nancial reporting, including a descrip- plying for a loan as a result of having tion of each fund account. suffered a substantial loss of tax and (2) Operating budget. For loan applica- other revenue as a result of a major tion purposes, the operating budget is disaster, is not required to first seek that document or documents approved credit elsewhere (see § 206.367(c)). by an appropriating body, which con- (2) The State exercises administra- tains an estimate of proposed expendi- tive authority over the local govern- tures, other than capital outlays for ment’s application. The State’s review fixed assets for a stated period of time, should include a determination that and the proposed means of financing the applicant is legally qualified, under the expenditures. For loan cancellation State law, to assume the proposed purposes, FEMA interprets the term debt, and may include an overall re- ‘‘operating budget’’ to mean actual view for accuracy for the submission. revenues and expenditures of the local The Governor’s Authorized Representa- government as published in the official tive may request the Regional Director financial statements of the local gov- to waive the requirement for a State ernment. review if an otherwise eligible applicant is not subject to State adminis- (3) Operating budget increases. Budget tration authority and the State cannot increases due to increases in the level legally participate in the loan applica- of, or additions to, municipal services tion process. not rendered at the time of the disaster (b) Financial requirements. (1) The or not directly related to the disaster loan application shall be developed shall be identified. from financial information contained (4) Revenue and assessment informa- in the local government’s annual oper- tion. The applicant shall provide infor- ating budget (see § 206.364(b)(2)) and mation concerning its method of tax shall include a Summary of Revenue assessment including assessment dates Loss and Unreimbursed Disaster-Re- and the dates payments are due. Tax lated Expenses, a Statement of the Ap- revenues assessed but not collected, or plicant’s Operating Results—Cash Posi- other revenues which the local govern- tion, a Debt History, Tax Assessment ment chooses to forgive, stay, or other- Data, Financial Projections, Other In- wise not exercise the right to collect, formation, a Certification, and the As- are not a legitimate revenue loss for surances listed on the application. purposes of evaluating the loan appli- (i) Copies of the local government’s cation. financial reports (Revenue and Expense (5) Estimated disaster-related expense. and Balance Sheet) for the 3 fiscal Unreimbursed disaster-related ex- years immediately prior to the fiscal penses of a municipal operating char- year of the disaster and the applicant’s acter should be estimated. These are most recent financial statement must discussed in § 206.366(b). accompany the application. The local (c) Federal review. (1) The Associate government’s financial reports to be Director or designee shall approve a submitted are those annual (or in- community disaster loan to the extent terim) consolidated and/or individual it is determined that the local govern- official annual financial presentations ment has suffered a substantial loss of

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tax and other revenues and dem- mitted previously) for consideration by onstrates a need for financial assist- FEMA in determining whether the ance to perform its governmental func- level and frequency of periodic pay- tion as the result of the disaster. ments continue to be justified. The (2) Resubmission of application. If a local government shall also provide the loan application is disapproved, in latest available data on anticipated whole or in part, by the Associate Di- and actual tax and other revenue col- rector because of inadequacy of infor- lections. Desired adjustments in the mation, a revised application may be disbursement schedule shall be sub- resubmitted by the local government mitted in writing at least 10 days prior within sixty days of the date of the dis- to the proposed disbursement date in approval. Decision by the Associate Di- order to ensure timely receipt of the rector on the resubmission is final. funds. A sinking fund should be estab- (d) Community disaster loan. (1) The lished to amortize the debt. loan shall not exceed the lesser of: (b) Financial management. (1) Each (i) The amount of projected revenue local government with an approved loss plus the projected unreimbursed Community Disaster Loan shall estab- disaster-related expenses of a munic- lish necessary accounting records, con- ipal operating character for the fiscal sistent with local government’s finan- year of the major disaster and the sub- cial management system, to account sequent 3 fiscal years, or (ii) 25 percent of the local govern- for loan funds received and disbursed ment’s annual operating budget for the and to provide an audit trail. fiscal year in which the disaster oc- (2) FEMA auditors, State auditors, curred. the GAR, the Regional Director, the (2) Promissory note. (i) Upon approval Associate Director, and the Comp- of the loan by the Associate Director troller General of the United States or or designee, he or she, or a designated their duly authorized representatives Loan Officer will execute a Promissory shall, for the purpose of audits and ex- Note with the applicant. The Note amination, have access to any books, must be co-signed by the State (see documents, papers, and records that § 206.364(d)(2)(ii)). The applicant should pertain to Federal funds, equipments, indicate its funding requirements on and supplies received under these regu- the Schedule of Loan Increments on lations. the Note. (c) Loan servicing. (1) The applicant (ii) If the State cannot legally cosign annually shall submit to FEMA copies the Promissory Note, the local govern- of its annual financial reports (oper- ment must pledge collateral security, ating statements, balance sheets, etc.) acceptable to the Associate Director, for the fiscal year of the major dis- to cover the principal amount of the aster, and for each of the 3 subsequent Note. The pledge should be in the form fiscal years. of a resolution by the local governing (2) The Headquarters, FEMA Office of body identifying the collateral secu- Disaster Assistance Programs, will re- rity. view the loan periodically. The purpose (Approved by Office of Management and of the reevaluation is to determine Budget under Control Number 3067–0034) whether projected revenue losses, disaster-related expenses, operating budg- § 206.365 Loan administration. ets, and other factors have changed (a) Funding. (1) FEMA will disburse sufficiently to warrant adjustment of funds to the local government when re- the scheduled disbursement of the loan quested, generally in accordance with proceeds. the Schedule of Loan Increments in the (3) The Headquarters, FEMA Office of Promissory Note. As funds are dis- Disaster Assistance Programs, shall bursed, interest will accrue against provide each loan recipient with a loan each disbursement. status report on a quarterly basis. The (2) When each incremental disburse- recipient will notify FEMA of any ment is requested, the local govern- changes of the responsible municipal ment shall submit a copy of its most official who executed the Promissory recent financial report (if not sub- Note.

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(d) Inactive loans. If no funds have increases due to inflation, the annual been disbursed from the Treasury, and operating budget or operating state- if the local government does not an- ment expenditures will be reduced ac- ticipate a need for such funds, the note cordingly for purposes of evaluating may be cancelled at any time upon a any request for loan cancellation. written request through the State and (5) It is not the purpose of this loan Regional Office to FEMA. However, program to underwrite predisaster since only one loan may be approved, budget or actual deficits of the local cancellation precludes submission of a government. Consequently, such defi- second loan application request by the cits carried forward will reduce any same local government for the same amounts otherwise eligible for loan disaster. cancellation. (b) Disaster-related expenses of a mu- § 206.366 Loan cancellation. nicipal operation character. (1) For pur- (a) Policies. (1) FEMA shall cancel re- pose of this loan, unreimbursed ex- payment of all or part of a Community penses of a municipal operating char- Disaster Loan to the extent that the acter are those incurred for general Associate Director determines that government purposes, such as police revenues of the local government dur- and fire protection, trash collection, ing the full three fiscal year period fol- collection of revenues, maintenance of lowing the disaster are insufficient, as public facilities, flood and other hazard a result of the disaster, to meet the op- insurance, and other expenses normally erating budget for the local govern- budgeted for the general fund, as de- ment, including additional unreim- fined by the Municipal Finance Officers bursed disaster-related expenses for a Association. municipal operating character. For (2) Disaster-related expenses do not loan cancellation purposes, FEMA in- include expenditures associated with terprets that term operating budget to debt service, any major repairs, re- mean actual revenues and expenditures building, replacement or reconstruc- of the local government as published in tion of public facilities or other capital the official financial statements of the projects, intragovernmental services, local government. special assessments, and trust and (2) If the tax and other revenues rates agency fund operations. Disaster ex- or the tax assessment valuation of penses which are eligible for reim- property which was not damaged or de- bursement under project applications stroyed by the disaster are reduced or other Federal programs are not eli- during the 3 fiscal years subsequent to gible for loan cancellation. the major disaster, the tax and other (3) Each applicant shall maintain revenue rates and tax assessment valu- records including documentation nec- ation factors applicable to such prop- essary to identify expenditures for un- erty in effect at the time of the major reimbursed disaster-related expenses. disaster shall be used without reduc- Examples of such expenses include but tion for purposes of computing reve- are not limited to: nues received. This may result in de- (i) Interest paid on money borrowed creasing the potential for loan can- to pay amounts FEMA does not ad- cellations. vance toward completion of approved (3) If the local government’s fiscal Project Applications. year is changed during the ‘‘full 3 year (ii) Unreimbursed costs to local gov- period following the disaster’’ the ac- ernments for providing usable sites tual period will be modified so that the with utilities for mobile homes used to required financial data submitted cov- meet disaster temporary housing re- ers an inclusive 36-month period. quirements. (4) If the local government transfers (iii) Unreimbursed costs required for funds from its operating funds ac- police and fire protection and other counts to its capital funds account, community services for mobile home utilizes operating funds for other than parks established as the result of or for routine maintenance purposes, or sig- use following a disaster. nificantly increases expenditures (iv) The cost to the applicant of flood which are not disaster related, except insurance required under Public Law

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93–234, as amended, and other hazard munity for each of the above fiscal insurance required under section 311, years: Public Law 93–288, as amended, as a (A) The market value of the tax base condition of Federal disaster assistance (dollars); for the disaster under which the loan is (B) The assessment ratio (percent); authorized. (C) The assessed valuation (dollars); (4) The following expenses are not (D) The tax levy rate (mils); considered to be disaster-related for (E) Taxes levied and collected (dol- Community Disaster Loan purposes: lars). (i) The local government’s share for (iv) Audit reports for each of the assistance provided under the Act in- above fiscal years certifying to the va- cluding flexible funding under section lidity of the Operating Statements. 406(c)(1) of the Act. The financial statements of the local (ii) Improvements related to the re- government shall be examined in ac- pair or restoration of disaster public cordance with generally accepted au- facilities approved on Project Applica- diting standards by independent cer- tions. tified public accountants. The report should not include recommendations (iii) Otherwise eligible costs for concerning loan cancellation or repay- which no Federal reimbursement is re- ment. quested as a part of the applicant’s dis- (v) Other financial information speci- aster response commitment, or cost fied in the Application for Loan Can- sharing as specified in the FEMA-State cellation. Agreement for the disaster. (2) Narrative justification. The applica- (iv) Expenses incurred by the local tion may include a narrative presen- government which are reimbursed on tation to amplify the financial mate- the applicant’s project application. rial accompanying the application and (c) Cancellation application. A local to present any extenuating cir- government which has drawn loan cumstances which the local govern- funds from the Treasury may request ment wants the Associate Director to cancellation of the principal and reconsider in rendering a decision on the lated interest by submitting an Appli- cancellation request. cation for Loan Cancellation through (d) Determination. (1) If, based on a re- the Governor’s Authorized Representa- view of the Application for Loan Can- tive to the Regional Director prior to cellation and FEMA audit, when deter- the expiration date of the loan. mined necessary, the Associate Direc- (1) Financial information submitted tor determines that all or part of the with the application shall include the Community Disaster Loan funds should following: be canceled, the principal amount (i) Annual Operating Budgets for the which is canceled will become a grant, fiscal year of the disaster and the 3 and the related interest will be for- subsequent fiscal years; given. The Associate Director’s deter- (ii) Annual Financial Reports (Rev- mination concerning loan cancellation enue and Expense and Balance Sheet) will specify that any uncancelled prin- for each of the above fiscal years. Such cipal and related interest must be re- financial records must include copies paid immediately and that, if imme- of the local government’s annual finan- diate repayment will constitute a ficial reports, including operating state- nancial hardship, the local government ments balance sheets and related con- must submit for FEMA review and ap- solidated and individual presentations proval, a repayment schedule for set- for each fund account. In addition, the tling the indebtedness on timely basis. local government must include an ex- Such repayments must be made to the planatory statement when figures in Treasurer of the United States and be the Application for Loan Cancellation sent to FEMA, Attention: Office of the form differ from those in the sup- Comptroller. porting financial reports. (2) A loan or cancellation of a loan (iii) The following additional infor- does not reduce or affect other dis- mation concerning annual real estate aster-related grants or other disaster property taxes pertaining to the com- assistance. However, no cancellation

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may be made that would result in a du- last to become due under the loan and plication of benefits to the applicant. shall not affect the obligation of the (3) The uncancelled portion of the borrower to pay the remaining install- loan must be repaid in accordance with ments. § 206.367. (4) The Associate Director may defer (4) Appeals. If an Application for payments of principal and interest Loan Cancellation is disapproved, in until FEMA makes its final determina- whole or in part, by the Associate Di- tion with respect to any Application rector or designee, the local govern- for Loan Cancellation which the bor- ment may submit any additional infor- rower may submit. However, interest mation in support of the application will continue to accrue. within 60 days of the date of disapproval. The decision by the Associate (5) Any costs incurred by the Federal Director or designee on the submission Government in collecting the note is final. shall be added to the unpaid balance of the loan, bear interest at the same rate (Approved by the Office of Management and as the loan, and be immediately due Budget under Control Number 3067–0026) without demand. § 206.367 Loan repayment. (6) In the event of default on this note by the borrower, the FEMA (a) Prepayments. The local govern- claims collection officer will take ac- ment may make prepayments against tion to recover the outstanding prin- loan at any time without any prepayment penalty. cipal plus related interest under Fed- (b) Repayment. To the extent not oth- eral debt collection authorities, includ- erwise cancelled, Community Disaster ing administrative offset against other Loan funds become du and payable in Federal funds due the borrower and/or accordance with the terms and condi- referral to the Department of Justice tions of the Promissory Note. The note for judicial enforcement and collection. shall include the following provisions: (c) Additional time. In unusual cir- (1) The term of a loan made under cumstances involving financial hard- this program is 5 years, unless ex- ship, the local government may request tended by the Associate Director. In- an additional period of time beyond the terest will accrue on outstanding cash original 10 year term to repay the in- from the actual date of its disburse- debtedness. Such request may be ap- ment by the Treasury. proved by the Associate Director sub- (2) The interest amount due will be ject to the following conditions: computed separately for each Treasury (1) The local government must sub- disbursement as follows: I=P×R×T, mit documented evidence that it has where I=the amount of simple interest, applied for the same credit elsewhere P=the principal amount disbursed; and that such credit is not available at R=the interest rate of the loan; and, a rate equivalent to the current Treas- T=the outstanding term in years from ury rate. the date of disbursement to date of re- (2) The principal amount shall be the payment, with periods less than 1 year original uncancelled principal plus re- computed on the basis of 365 days/year. lated interest. If any portion of the loan is cancelled, the interest amount due will be com- (3) The interest rate shall be the puted on the remaining principal with Treasury rate in effect at the time the the shortest outstanding term. new Promissory Note is executed but (3) Each payment made against the in no case less than the original inter- loan will be applied first to the interest est rate. computed to the date of the payment, (4) The term of the new Promissory and then to the principal. Prepayments Note shall be for the settlement period of scheduled installments, or any por- requested by the local government but tion thereof, may be made at any time not greater than 10 years from the date and shall be applied to the installments the new note is executed.

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§§ 206.368–206.389 [Reserved] § 206.393 Providing assistance. Following the Associate Director’s Subpart L—Fire Suppression decision on the State request, the Re- Assistance gional Director will notify the Gov- ernor and the Federal firefighting agency involved. The Regional Direc- SOURCE: 55 FR 2318, Jan. 23, 1990, unless tor may request assistance from Fed- otherwise noted. eral agencies if requested by the State. § 206.390 General. For each fire or fire situation, the State shall prepare a separate Fire When the Associate Director deter- Project Application based on Federal mines that a fire or fires threaten such Damage Survey Reports and submit it destruction as would constitute a to the Regional Director for approval. major disaster, assistance may be authorized, including grants, equipment, § 206.394 Cost eligibility. supplies, and personnel, to any State (a) Cost principles. See 44 CFR 13.22, for the suppression of any fire on pub- Allowable Costs, and the associated licly or privately owned forest or grass- OMB Circular A–87, Cost Principles for land. State and Local Governments. (b) Program specific eligible costs. (1) § 206.391 FEMA-State Agreement. Expenses to provide field camps and meals when made available to the eli- Federal assistance under section 420 gible employees in lieu of per diem of the Act is provided in accordance costs. with a continuing FEMA-State Agree- (2) Costs for use of publicly owned ment for Fire Suppression Assistance equipment used on eligible fire sup- (the Agreement) signed by the Gov- pression work based on reasonable ernor and the Regional Director. The State equipment rates. Agreement contains the necessary (3) Costs to the State for use of U.S. terms and conditions, consistent with Government-owned equipment based on the provisions of applicable laws, Exec- reasonable costs as billed by the Fed- utive Orders, and regulations, as the eral agency and paid by the State. Only Associate Director may require and direct costs for use of Federal Excess specifies the type and extent of Federal Personal Property (FEPP) vehicles and assistance. The Governor may des- equipment on loan to State Forestry ignate authorized representatives to and local cooperators, can be paid. execute requests and certifications and (4) Cost of firefighting tools, mate- otherwise act for the State during fire rials, and supplies expended or lost, to emergencies. Supplemental agreements the extent not covered by reasonable shall be executed as required to update insurance. (5) Replacement value of equipment the continuing Agreement. lost in fire suppression, to the extent § 206.392 Request for assistance. not covered by reasonable insurance. (6) Costs for personal comfort and When a Governor determines that safety items normally provided by the fire suppression assistance is war- State under field conditions for fire- ranted, a request for assistance may be fighter health and safety. initiated. Such request shall specify in (7) Mobilization and demobilization detail the factors supporting the re- costs directly relating to the Federal quest for assistance. In order that all fire suppression assistance approved by actions in processing a State request the Associate Director. are executed as rapidly as possible, the (8) Eligible costs of local govern- State may submit a telephone request mental firefighting organizations to the Regional Director, promptly fol- which are reimbursed by the State pur- lowed by a confirming telegram or let- suant to an existing cooperative mu- ter. (Approved by the Office of Manage- tual aid agreement, in suppressing an ment and Budget under the Control approved incident fire. Numbers 3067–0066) (9) State costs for suppressing fires on Federal land in cases in which the

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State has a responsibility under a co- §§ 206.396–206.399 [Reserved] operative agreement to perform such action on a nonreimbursable basis. Subpart M—Minimum Standards This provision is an exception to normal FEMA policy under the Act and is SOURCE: 67 FR 8852, Feb. 26, 2002, unless intended to accommodate only those otherwise noted. rare instances that involve State fire suppression of section 420 incident fires § 206.400 General. involving co-mingled Federal/State and (a) As a condition of the receipt of privately owned forest or grassland. any disaster assistance under the Staf- (10) In those instances in which as- ford Act, the applicant shall carry out sistance under section 420 of the Act is any repair or construction to be fi- provided in conjunction with existing nanced with the disaster assistance in Interstate Forest Fire Protection Com- accordance with applicable standards pacts, eligible costs are reimbursed in of safety, decency, and sanitation and accordance with eligibility criteria es- in conformity with applicable codes, tablished in this section. specifications and standards. (c) Program specific ineligible costs. (1) (b) Applicable codes, specifications, Any costs for presuppression, salvaging and standards shall include any dis- timber, restoring facilities, seeding and aster resistant building code that planting operations. meets the minimum requirements of (2) Any costs not incurred during the the National Flood Insurance Program incident period as determined by the (NFIP) as well as being substantially Regional Director other than reason- equivalent to the recommended provi- able and directly related mobilization sions of the National Earthquake Haz- and demobilization costs. ards Reduction Program (NEHRP). In (3) State costs for suppressing a fire addition, the applicant shall comply on co-mingled Federal land where such with any requirements necessary in re- costs are reimbursable to the State by gards to Executive Order 11988, Flood- a Federal agency under another statute plain Management, Executive Order (see 44 CFR part 151). 12699, Seismic Safety of Federal and Federally Assisted or Regulated New § 206.395 Grant administration. Building Construction, and any other (a) Project administration shall be in applicable Executive orders. accordance with 44 CFR part 13, and (c) In situations where there are no applicable portions of subpart G, 44 locally applicable standards of safety, CFR part 206. decency and sanitation, or where there are no applicable local codes, specifica- (b) In those instances in which reim- tions and standards governing repair or bursement includes State fire suppres- construction activities, or where the sion assistance on co-mingled State Regional Director determines that oth- and Federal lands (§ 206.394(b)(9)), the erwise applicable codes, specifications, Regional Director shall coordinate and standards are inadequate, then the with other Federal programs to pre- Regional Director may, after consulta- clude any duplication of payments. tion with appropriate State and local (See 44 CFR part 151.) officials, require the use of nationally (c) Audits shall be in accordance with applicable codes, specifications, and the Single Audit Act of 1984, Pub. L. 98– standards, as well as safe land use and 502. (See subpart G of this part.) construction practices in the course of (d) A State may appeal a determina- repair or construction activities. tion by the Regional Director on any (d) The mitigation planning process action related to Federal assistance for that is mandated by section 322 of the fire suppression. Appeal procedures are Stafford Act and 44 CFR part 201 can contained in 44 CFR 206.206. assist State and local governments in

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determining where codes, specifica- Grant award means total of Federal tions, and standards are inadequate, and non-Federal contributions to com- and may need to be upgraded. plete the approved scope of work. Grantee means the government to § 206.401 Local standards. which a grant is awarded and which is The cost of repairing or constructing accountable for the use of the funds a facility in conformity with minimum provided. The grantee is the entire codes, specifications and standards legal entity even if only a particular may be eligible for reimbursement component of the entity is designated under section 406 of the Stafford Act, in the grant award document. Gen- as long as such codes, specifications erally, the State is the grantee. How- and standards meet the criteria that ever, an Indian tribal government may are listed at 44 CFR 206.226(b). choose to be a grantee, or it may act as a subgrantee under the State. An In- § 206.402 Compliance. dian tribal government acting as a A recipient of disaster assistance grantee will assume the responsibil- under the Stafford Act must document ities of a ‘‘state’’, under this subpart, for the Regional Director its compli- for the purposes of administering the ance with this subpart following the grant. completion of any repair or construc- Indian tribal government means any tion activities. Federally recognized governing body of an Indian or Alaska Native tribe, band, Subpart N—Hazard Mitigation nation, pueblo, village, or community Grant Program that the Secretary of Interior acknowledges to exist as an Indian tribe under the Federally Recognized Tribe List SOURCE: 55 FR 35537, Aug. 30, 1990, unless Act of 1994, 25 U.S.C. 479a. This does otherwise noted. not include Alaska Native corpora- § 206.430 General. tions, the ownership of which is vested in private individuals. This subpart provides guidance on Local Mitigation Plan is the hazard the administration of hazard mitiga- mitigation plan required of a local or tion grants made under the provisions Indian tribal government acting as a of section 404 of the Robert T. Stafford subgrantee as a condition of receiving Disaster Relief and Emergency Assist- a project subgrant under the HMGP as ance Act, 42 U.S.C. 5170c, hereafter outlined in 44 CFR 201.6. Stafford Act, or the Act. Standard State Mitigation Plan is the [59 FR 24356, May 11, 1994] hazard mitigation plan approved under 44 CFR part 201, as a condition of re- § 206.431 Definitions. ceiving Stafford Act assistance as out- Activity means any mitigation meas- lined in § 201.4. ure, project, or action proposed to re- State Administrative Plan for the Haz- duce risk of future damage, hardship, ard Mitigation Grant Program means the loss or suffering from disasters. plan developed by the State to describe Applicant means a State agency, local the procedures for administration of government, Indian tribal government, the HMGP. or eligible private nonprofit organiza- Subgrant means an award of financial tion, submitting an application to the assistance under a grant by a grantee grantee for assistance under the to an eligible subgrantee. HMGP. Subgrant application means the re- Enhanced State Mitigation Plan is the quest to the grantee for HMGP funding hazard mitigation plan approved under by the eligible subgrantee, as outlined 44 CFR part 201 as a condition of rein § 206.436. ceiving increased funding under the Subgrantee means the government or HMGP. other legal entity to which a subgrant Grant application means the request is awarded and which is accountable to to FEMA for HMGP funding, as out- the grantee for the use of the funds lined in § 206.436, by a State or tribal provided. Subgrantees can be a State government that will act as grantee. agency, local government, private non-

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profit organizations, or Indian tribal Mitigation Grant Program for major government as outlined in § 206.433. In- disasters declared before June 10, 1993. dian tribal governments acting as a The nonFederal share may exceed the subgrantee are accountable to the Federal share. FEMA will not con- State grantee. tribute to costs above the Federally approved estimate. [67 FR 8852, Feb. 26, 2002] [55 FR 35537, Aug. 30, 1990, as amended at 59 § 206.432 Federal grant assistance. FR 24356, May 11, 1994; 67 FR 8853, Feb. 26, (a) General. This section describes the 2002; 67 FR 61515, Oct. 1, 2002] extent of Federal funding available § 206.433 State responsibilities. under the State’s grant, as well as limitations and special procedures applica- (a) Grantee. The State will be the ble to each. Grantee to which funds are awarded (b) Amounts of assistance. The total of and will be accountable for the use of Federal assistance under this subpart those funds. There may be subgrantees shall not exceed either 15 or 20 percent within the State government. of the total estimated Federal assist- (b) Priorities. The State will deter- ance (excluding administrative costs) mine priorities for funding. This deter- provided for a major disaster under 42 mination must be made in conform- U.S.C. 5170b, 5172, 5173, 5174, 5177, 5178, ance with § 206.435. 5183, and 5201 as follows: (c) Hazard Mitigation Officer. The (1) Fifteen (15) percent. Effective No- State must appoint a Hazard Mitiga- vember 1, 2004, a State with an ap- tion Officer, as required under 44 CFR proved Standard State Mitigation part 206 subpart M, who serves as the Plan, which meets the requirements responsible individual for all matters outlined in 44 CFR 201.4, shall be eligi- related to the Hazard Mitigation Grant ble for assistance under the HMGP not Program. to exceed 15 percent of the total esti- (d) Administrative plan. The State mated Federal assistance described in must have an approved administrative this paragraph. Until that date, exist- plan for the Hazard Mitigation Grant ing, FEMA approved State Mitigation Program in conformance with § 206.437. Plans will be accepted. (2) Twenty (20) percent. A State with § 206.434 Eligibility. an approved Enhanced State Mitiga- (a) Applicants. The following are eli- tion Plan, in effect prior to the disaster gible to apply for the Hazard Mitiga- declaration, which meets the require- tion Program Grant: ments outlined in 44 CFR 201.5 shall be (1) State and local governments; eligible for assistance under the HMGP (2) Private non-profit organizations not to exceed 20 percent of the total es- or institutions that own or operate a timated Federal assistance described in private non-profit facility as defined in this paragraph. § 206.221(e); (3) The estimates of Federal assist- (3) Indian tribes or authorized tribal ance under this paragraph (b) shall be organizations and Alaska Native vil- based on the Regional Director’s esti- lages or organizations, but not Alaska mate of all eligible costs, actual native corporations with ownership grants, and appropriate mission assign- vested in private individuals. ments. (b) Plan requirement. (1) For all disas- (c) Cost sharing. All mitigation meas- ters declared on or after November 1, ures approved under the State’s grant 2004, local and tribal government appli- will be subject to the cost sharing pro- cants for subgrants must have an ap- visions established in the FEMA-State proved local mitigation plan in accord- Agreement. FEMA may contribute up ance with 44 CFR 201.6 prior to receipt to 75 percent of the cost of measures of HMGP subgrant funding. Until No- approved for funding under the Hazard vember 1, 2004, local mitigation plans Mitigation Grant Program for major may be developed concurrent with the disasters declared on or after June 10, implementation of subgrants. 1993. FEMA may contribute up to 50 (2) Regional Directors may grant an percent of the cost of measures ap- exception to this requirement in ex- proved for funding under the Hazard traordinary circumstances, such as in a

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small and impoverished community be used to develop State, tribal and/or when justification is provided. In these local mitigation plans to meet the cases, a plan will be completed within planning criteria outlined in 44 CFR 12 months of the award of the project part 201. grant. If a plan is not provided within (2) Types of projects. Projects may be this timeframe, the project grant will of any nature that will result in probe terminated, and any costs incurred tection to public or private property. after notice of grant’s termination will Eligible projects include, but are not not be reimbursed by FEMA. limited to: (c) Minimum project criteria. To be eli- (i) Structural hazard control or pro- gible for the Hazard Mitigation Grant tection projects; Program, a project must: (ii) Construction activities that will (1) Be in conformance with the State result in protection from hazards; Mitigation Plan and Local Mitigation (iii) Retrofitting of facilities; Plan approved under 44 CFR part 201; (iv) Property acquisition or reloca- (2) Have a beneficial impact upon the tion, as defined in paragraph (e) of this designated disaster area, whether or section; not located in the designated area; (v) Development of State or local (3) Be in conformance with 44 CFR mitigation standards; part 9, Floodplain Management and (vi) Development of comprehensive Protection of Wetlands, and 44 CFR mitigation programs with implementa- part 10, Environmental Considerations; tion as an essential component; (4) Solve a problem independently or (vii) Development or improvement of constitute a functional portion of a so- warning systems. lution where there is assurance that the project as a whole will be com- (e) Property acquisition and relocation pleted. Projects that merely identify or requirements. A project involving prop- analyze hazards or problems are not el- erty acquisition or the relocation of igible; structures and individuals is eligible (5) Be cost-effective and substan- for assistance only if the applicant en- tially reduce the risk of future damage, ters an agreement with the FEMA Re- hardship, loss, or suffering resulting gional Director that provides assur- from a major disaster. The grantee ances that: must demonstrate this by documenting (1) The following restrictive cov- that the project; enants shall be conveyed in the deed to (i) Addresses a problem that has been any property acquired, accepted, or repetitive, or a problem that poses a from which structures are removed significant risk to public health and (hereafter called in section (d) the safety if left unsolved, property): (ii) Will not cost more than the an- (i) The property shall be dedicated ticipated value of the reduction in both and maintained in perpetuity for uses direct damages and subsequent nega- compatible with open space, rective impacts to the area if future disas- reational, or wetlands management ters were to occur. Both costs and ben- practices; and efits will be computed on a net present (ii) No new structure(s) will be built value basis, on the property except as indicated (iii) Has been determined to be the below: most practical, effective, and environ- (A) A public facility that is open on mentally sound alternative after con- all sides and functionally related to a sideration of a range of options, designated open space or recreational (iv) Contributes, to the extent prac- use; ticable, to a long-term solution to the (B) A rest room; or problem it is intended to address, (C) A structure that is compatible (v) Considers long-term changes to with open space, recreational, or wet- the areas and entities it protects, and lands management usage and proper has manageable future maintenance floodplain management policies and and modification requirements. practices, which the Director approves (d) Eligible activities. (1) Planning. Up in writing before the construction of to 7% of the State’s HMGP grant may the structure begins.

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(iii) After completion of the project, ited circumstances in which there are no application for additional disaster extraordinary threats to lives, public assistance will be made for any purpose health or safety or improved property. with respect to the property to any (h) Packaging of programs. Section 404 Federal entity or source, and no Fed- funds may be packaged or used in com- eral entity or source will provide such bination with other Federal, State, assistance. local, or private funding sources when (2) In general, allowable open space, appropriate to develop a comprehen- recreational, and wetland management sive mitigation solution, though sec- uses include parks for outdoor rec- tion 404 funds cannot be used as a reational activities, nature reserves, match for other Federal funds. cultivation, grazing, camping (except [55 FR 35537, Aug. 30, 1990, as amended at 59 where adequate warning time is not FR 24356, May 11, 1994; 67 FR 8853, Feb. 26, available to allow evacuation), tem- 2002; 67 FR 61515, Oct. 1, 2002] porary storage in the open of wheeled vehicles which are easily movable (ex- § 206.435 Project identification and se- cept mobile homes), unimproved, pre- lection criteria. vious parking lots, and buffer zones. (a) Identification. It is the State’s re- (3) Any structures built on the prop- sponsibility to identify and select eligi- erty according to paragraph (d)(1) of ble hazard mitigation projects. All this section, shall be floodproofed or funded projects must be consistent elevated to the Base Flood Elevation with the State Mitigation Plan. Hazard plus one foot of freeboard. Mitigation projects shall be identified (f) Inapplicability of the Uniform Relo- and prioritized through the State, In- cation Act. The Uniform Relocation As- dian tribal, and local planning process. sistance and Real Property Acquisition (b) Selection. The State will establish Policies Act of 1970 does not apply to procedures and priorities for the selec- real property acquisition projects tion of mitigation measures. At a min- which meet the criteria identified imum the criteria must be consistent below: with the criteria stated in § 206.434(b) (1) The project provides for the pur- and include: chase of property damaged by the (1) Measures that best fit within an major, widespread flooding in the overall plan for development and/or States of Illinois, Iowa, Kansas, Min- hazard mitigation in the community, nesota, Missouri, Nebraska, North Da- disaster area, or State; kota, South Dakota, and Wisconsin (2) Measures that, if not taken, will during 1993; have a severe detrimental impact on (2) It provides for such purchase sole- the applicant, such as potential loss of ly as a result of such flooding; life, loss of essential services, damage (3) It is carried out by or through a to critical facilities, or economic hard- State or unit of general local govern- ship on the community; ment; (3) Measures that have the greatest (4) The purchasing agency (grantee or potential impact on reducing future subgrantee) notifies all potential prop- disaster losses; erty owners in writing that it will not (c) Other considerations. In addition to use its power of eminent domain to ac- the selection criteria noted above, con- quire the properties if a voluntary sideration should be given to measures agreement is not reached; that are designed to accomplish mul- (5) The project is being assisted with tiple objectives including damage re- amounts made available for: duction, environmental enhancement, (i) Disaster relief by the Federal and economic recovery, when appro- Emergency Management Agency; or priate. (ii) By other Federal financial assist- [55 FR 35537, Aug. 30, 1990, as amended at 66 ance programs. FR 8853, Feb. 26, 2002] (g) Duplication of programs. Section 404 funds cannot be used as a substitute § 206.436 Application procedures. or replacement to fund projects or pro- (a) General. This section describes the grams that are available under other procedures to be used by the grantee in Federal authorities, except under lim- submitting an application for HMGP

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funding. Under the HMGP, the State or lands, and 44 CFR part 10, Environ- Indian tribal government is the grant- mental Considerations. ee and is responsible for processing (d) Application submission time limit. subgrants to applicants in accordance The State’s application may be amend- with 44 CFR part 13 and this part 206. ed as the State identifies and selects Subgrantees are accountable to the local project applications to be funded. grantee. The State must submit all local HMGP (b) Governor’s Authorized Representa- applications and funding requests for tive. The Governor’s Authorized Rep- the purpose of identifying new projects resentative serves as the grant admin- to the Regional Director within 12 istrator for all funds provided under months of the date of disaster declara- the Hazard Mitigation Grant Program. tion. The Governor’s Authorized Representa- (e) Extensions. The State may request tive’s responsibilities as they pertain the Regional Director to extend the ap- to procedures outlined in this section plication time limit by 30 to 90 day in- include providing technical advice and crements, not to exceed a total of 180 assistance to eligible subgrantees, and days. The grantee must include a jus- ensuring that all potential applicants tification in its request. are aware of assistance available and (f) FEMA approval. The application submission of those documents nec- and supplement(s) will be submitted to essary for grant award. the FEMA Regional Director for ap- (c) Hazard mitigation application. Upon proval. FEMA has final approval au- identification of mitigation measures, thority for funding of all projects. the State (Governor’s Authorized Rep- (g) Indian tribal grantees. Indian tribal resentative) will submit its Hazard governments may submit a SF 424 di- Mitigation Grant Program application rectly to the Regional Director. to the FEMA Regional Director. The application will identify one or more [67 FR 8853, Feb. 26, 2002] mitigation measures for which funding § 206.437 State administrative plan. is requested. The application must include a Standard Form (SF) 424, Appli- (a) General. The State shall develop a cation for Federal Assistance, SF 424D, plan for the administration of the Haz- Assurances for Construction Programs, ard Mitigation Grant Program. if appropriate, and an narrative state- (b) Minimum criteria. At a minimum, ment. The narrative statement will the State administrative plan must in- contain any pertinent project manage- clude the items listed below: ment information not included in the (1) Designation of the State agency State’s administrative plan for Hazard will have responsibility for program Mitigation. The narrative statement administration; will also serve to identify the specific (2) Identification of the State Hazard mitigation measures for which funding Mitigation Officer responsible for all is requested. Information required for matters related to the Hazard Mitiga- each mitigation measure shall include tion Grant Program. the following: (3) Determination of staffing require- (1) Name of the subgrantee, if any; ments and sources of staff necessary (2) State or local contact for the for administration of the program; measure; (4) Establishment of procedures to: (3) Location of the project; (i) Identify and notify potential ap- (4) Description of the measure; plicants (subgrantees) of the avail- (5) Cost estimate for the measure; ability of the program; (6) Analysis of the measure’s cost-ef- (ii) Ensure that potential applicants fectiveness and substantial risk reduc- are provided information on the appli- tion, consistent with § 206.434(c); cation process, program eligibility and (7) Work schedule; key deadlines; (8) Justification for selection; (iii) Determine applicant eligibility; (9) Alternatives considered; (iv) Conduct environmental and (10) Environmental information con- floodplain management reviews; sistent with 44 CFR part 9, Floodplain (v) Establish priorities for selection Management and Protection of Wet- of mitigation projects;

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(vi) Process requests for advances of can be met without additional Federal funds and reimbursement; funds, or which can be met by offset- (vii) Monitor and evaluate the ting cost underruns on other projects, progress and completion of the selected need not be submitted to the Regional projects; Director for approval, so long as the (viii) Review and approve cost over- full scope of work on all affected runs; projects can still be met. For cost over- (ix) Process appeals; runs which exceed Federal obligated (x) Provide technical assistance as funds and which require additional required to subgrantee(s); Federal funds, the Governor’s Author- (xi) Comply with the administrative ized Representative shall evaluate each requirements of 44 CFR parts 13 and cost overrun and shall submit a request 206; with a recommendation to the Re- (xii) Comply with audit requirements gional Director for a determination. of 44 CFR part 14; The applicant’s justification for addi- (xiii) Provide quarterly progress reports to the Regional Director on ap- tional costs and other pertinent mate- proved projects. rial shall accompany the request. The (c) Format. The administrative plan Regional Director shall notify the Gov- is intended to be a brief but sub- ernor’s Authorized Representative in stantive plan documenting the State’s writing of the determination and proc- process for the administration of the ess a supplement, if necessary. All re- Hazard Mitigation Grant Program and quests that are not justified shall be management of the section 404 funds. denied by the Governor’s Authorized This administrative plan should be- Representative. In no case will the come a part of the State’s overall total amount obligated to the State ex- emergency response or operations plan ceed the funding limits set forth in as a separate annex or chapter. § 206.432(b). Any such problems or cir- (d) Approval. The State must submit cumstances affecting project costs the administrative plan to the Re- shall be identified through the quar- gional Director for approval. Following terly progress reports required in para- each major disaster declaration, the graph (c) of this section. State shall prepare any updates, (c) Progress reports. The grantee shall amendments, or plan revisions required submit a quarterly progress report to to meet current policy guidance or FEMA indicating the status and com- changes in the administration of the pletion date for each measure funded. Hazard Mitigation Grant Program. Any problems or circumstances affect- Funds shall not be awarded until the ing completion dates, scope of work, or State administrative plan is approved project costs which are expected to re- by the FEMA Regional Director. sult in noncompliance with the ap- (Approved by the Office of Management and proved grant conditions shall be de- Budget under OMB control number 3067–0208) scribed in the report. [55 FR 35537, Aug. 30, 1990, as amended at 55 (d) Payment of claims. The Governor’s FR 52172, Dec. 20, 1990] Authorized Representative shall make a claim to the Regional Director for re- § 206.438 Project management. imbursement of allowable costs for (a) General. The State serving as each approved measure. In submitting grantee has primary responsibility for such claims the Governor’s Authorized project management and account- Representative shall certify that re- ability of funds as indicated in 44 CFR ported costs were incurred in the per- part 13. The State is responsible for en- formance of eligible work, that the ap- suring that subgrantees meet all pro- proved work was completed and that gram and administrative requirements. the mitigation measure is in compli- (b) Cost overruns. During the execu- ance with the provisions of the FEMA- tion of work on an approved mitigation State Agreement. The Regional Direc- measure the Governor’s Authorized tor shall determine the eligible amount Representative may find that actual of reimbursement for each claim and project costs are exceeding the ap- approve payment. If a mitigation proved estimates. Cost overruns which measure is not completed, and there is

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not adequate justification for non- (B) For the next $900,000, two percent completion, no Federal funding will be of such costs. provided for that measure. (C) For the next $4,000,000, one per- (e) Audit requirements. Uniform audit cent of such costs. requirements as set forth in 44 CFR (D) For those costs over $5,000,000, part 14 apply to all grant assistance one-half percent of such costs. provided under this subpart. FEMA (2) State management costs—(i) Grant- may elect to conduct a Federal audit ee. Except for the items listed in para- on the disaster assistance grant or on graph (b)(1)(i) of this section, other ad- any of the subgrants. ministration costs shall be paid in accordance with 44 CFR 13.22. Costs of § 206.439 Allowable costs. State personnel (regular time salaries (a) General. General policies for de- only) assigned to administer the Haz- termining allowable costs are estab- ard Mitigation Grant Program may be lished in 44 CFR 13.22. Exceptions to eligible when approved by the Regional those policies as allowed in 44 CFR 13.4 Director. Such costs shall be shared in and 13.6 are explained below. accordance with the cost share provisions of section 404 of the Act. For (b) Eligible direct costs. The eligible di- grantee administrative costs in the rect costs for administration and man- Disaster Field Office, the State shall agement of the program are divided submit a plan for the staffing of the into the following two categories. Disaster Field Office within 5 days of (1) Statutory administrative costs—(i) the opening of the office. This staffing Grantee. Pursuant to 406(f)(2) of the plan shall be in accordance with the Stafford Act, an allowance will be pro- administrative plan requirements of vided to the State to cover the extraor- § 206.437. After the close of the Disaster dinary costs incurred by the State for Field Office, costs of State personnel preparation of applications, quarterly (regular time salaries only) for con- reports, final audits, and related field tinuing management of the hazard inspections by State employees, in- mitigation grants may be eligible when cluding overtime pay and per diem and approved in advance by the Regional travel expenses, but not including reg- Director. The State shall submit a plan ular time for such employees. The al- for such staffing in advance of the re- lowance will be based on the following quirement. percentages of the total amount of as- (c) Eligible indirect costs—(1) Grantee. sistance provided (Federal share) for Indirect costs of administering the dis- all subgrantees in the State under sec- aster program are eligible in accord- tion 404 of the Stafford Act: ance with the provisions of 44 CFR part (A) For the first $100,000 of total as- 13 and OMB Circular A–87. sistance provided (Federal share), three (2) Subgrantee. No indirect costs of a percent of such assistance. subgrantee are separately eligible be- (B) For the next $900,000, two percent cause the percentage allowance in of such assistance. paragraph (b)(1)(ii) of this section nec- (C) For the next $4,000,000, one per- essary costs of requesting, obtaining cent of such assistance. and administering Federal assistance. (D) For assistance over $5,000,000, one-half percent of such assistance. § 206.440 Appeals. (ii) Subgrantee. Pursuant to section An eligible applicant, subgrantee, or 406(f)(1) of the Stafford Act, necessary grantee may appeal any determination costs of requesting, obtaining, and ad- previously made related to an applica- ministering Federal disaster assistance tion for or the provision of Federal as- subgrants will be covered by an allow- sistance according to the procedures ance which is based on the following below. percentages of total net eligible costs (a) Format and Content. The applicant under section 404 of the Stafford Act, or subgrantee will make the appeal in for an individual applicant (applicants writing through the grantee to the Re- in this context include State agencies): gional Director. The grantee shall re- (A) For the first $100,000 of net eligi- view and evaluate all subgrantee ap- ble costs, three percent of such costs. peals before submission to the Regional

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Director. The grantee may make grant- for this technical review may be in ad- ee-related appeals to the Regional Di- dition to other allotted time periods. rector. The appeal shall contain docu- Within 90 days of receipt of the report, mented justification supporting the ap- the Regional Director or Associate Di- pellant’s position, specifying the mone- rector/Executive Associate Director tary figure in dispute and the provi- will notify the grantee in writing of sions in Federal law, regulation, or pol- the disposition of the appeal. icy with which the appellant believes (e) Transition. (1) This rule is effec- the initial action was inconsistent.. tive for all appeals pending on and ap- (b) Levels of Appeal. (1) The Regional peals from decisions issued on or after Director will consider first appeals for May 8, 1998, except as provided in para- hazard mitigation grant program-re- graph (e)(2) of this section. lated decisions under subparts M and N (2) Appeals pending from a decision of this part. of an Associate Director/Executive As- (2) The Associate Director/Executive sociate Director before May 8, 1998 may Associate Director for Mitigation will be appealed to the Director in accord- consider appeals of the Regional Direc- ance with 44 CFR 206.440 as it existed tor’s decision on any first appeal under before May 8, 1998. paragraph (b)(1) of this section. (3) The decision of the FEMA official (c) Time Limits. (1) Appellants must at the next higher appeal level shall be make appeals within 60 days after re- the final administrative decision of ceipt of a notice of the action that is FEMA. being appealed. [63 FR 17111, Apr. 8, 1998] (2) The grantee will review and forward appeals from an applicant or subgrantee, with a written recommenda- PARTS 207–208 [RESERVED] tion, to the Regional Director within 60 days of receipt. PART 209—SUPPLEMENTAL PROP- (3) Within 90 days following receipt of ERTY ACQUISITION AND ELE- an appeal, the Regional Director (for VATION ASSISTANCE first appeals) or Associate Director/Ex- ecutive Associate Director (for second Sec. appeals) will notify the grantee in writ- 209.1 Purpose. ing of the disposition of the appeal or 209.2 Definitions. of the need for additional information. 209.3 Roles and responsibilities. 209.4 Allocation and availability of funds. A request by the Regional Director or 209.5 Applicant eligibility. Associate Director/Executive Associate 209.6 Project eligibility. Director for additional information 209.7 Priorities for project selection. will include a date by which the infor- 209.8 Application and review process. mation must be provided. Within 90 209.9 Appeals. days following the receipt of the re- 209.10 Project implementation require- quested additional information or fol- ments. 209.11 Grant administration. lowing expiration of the period for pro- 209.12 Oversight and results. viding the information, the Regional Director or Associate Director/Execu- AUTHORITY: Pub. L. 106–113, Div. B, sec. tive Associate Director will notify the 1000(a)(5) (enacting H.R. 3425 by cross-reference), 113 Stat. 1501, 1536; Pub. L. 106–246, grantee in writing of the disposition of 114 Stat. 511, 568; Robert T. Stafford Disaster the appeal. If the decision is to grant Relief and Emergency Assistance Act, 42 the appeal, the Regional Director will U.S.C. 5121, Reorganization Plan No. 3 of take appropriate implementing action. 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; (d) Technical Advice. In appeals in- E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. volving highly technical issues, the Re- 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 gional Director or Associate Director/ Comp., p. 412. Executive Associate Director may, at SOURCE: 66 FR 32669, June 15, 2001, unless his or her discretion, submit the appeal otherwise noted. to an independent scientific or technical person or group having expertise § 209.1 Purpose. in the subject matter of the appeal for This part provides guidance on the advice or recommendation. The period administration of a program to provide

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supplemental property acquisition and Qualified alien means an alien who elevation assistance made available by meets one of the following criteria: Congress to provide funds for the ac- (1) An alien lawfully admitted for quisition or elevation, for hazard miti- permanent residence under the Immi- gation purposes, of properties that gration and Nationality Act (INA); have been made uninhabitable by (2) An alien granted asylum under floods in areas that were declared section 208 of the INA; major disasters in federal fiscal years (3) A refugee admitted to the United 1999 and 2000. States under section 207 of the INA; (4) An alien paroled into the United § 209.2 Definitions. States under section 212(d)(5) of the Except as noted in this part, the defi- INA for at least one year; nitions listed at §§ 206.2 and 206.431 (5) An alien whose deportation is apply to the implementation of this being withheld under section 243(h) of part. the INA as in effect prior to April 1, Allowable open space uses means rec- 1997, or section 241(b)(3) of the INA; reational and wetland management (6) An alien granted conditional uses including: Parks for outdoor rec- entry pursuant to section 203(a)(7) of reational activities; nature reserves; the INA as in effect prior to April 1, cultivation; grazing; camping (except 1980; where adequate warning time is not (7) An alien who is a Cuban and Hai- available to allow evacuation); tem- tian entrant (as defined in section porary storage in the open of wheeled 501(e) of the Refugee Education Assist- vehicles which are easily movable (ex- ance Act of 1980); or cept mobile homes); unimproved, per- (8) An alien who (or whose child or meable parking lots; and buffer zones. parent) has been battered and meets Allowable uses generally do not include the requirements of 8 U.S.C. 1641(c). walled buildings, flood reduction lev- Qualified private nonprofit organization ees, highways or other uses that ob- means an organization with a construct the natural and beneficial func- servation mission as qualified under tions of the floodplain. section 170(h) of the Internal Revenue Applicant means a State agency, local Code of 1954, as amended, and the regu- government, or qualified private non- lations applicable under that section. profit organization that submits an ap- Repetitive Loss Structure means a plication for acquisition or elevation structure covered by a contract for assistance to the State or to FEMA. flood insurance under the National Cost-effective means that the mitiga- Flood Insurance Program (NFIP) that tion activity will not cost more than has incurred flood-related damage on the anticipated value of the reduction two occasions during a 10-year period, in both direct damages and subsequent each resulting in at least a $1000 claim negative impacts to the area if future payment; disasters were to occur. Both costs and State Hazard Mitigation Plan means benefits will be computed on a net the hazard mitigation plan that represent value basis. The State will flects the State’s systematic evalua- complete an analysis of the cost effec- tion of the nature and extent of vulner- tiveness of the project, in accordance ability to the effects of natural hazards with FEMA guidance and using a typically present in the State and in- FEMA-approved methodology. FEMA cludes a description of actions needed will review the State’s analysis. to minimize future vulnerability to Pre-event fair market value means the hazards. value a willing buyer would have paid Subgrantee means the government or and a willing seller would have sold a other legal entity to which a subgrant property for had the disaster not oc- is awarded and which is accountable to curred. the grantee for the use of the funds Principal residence means a residence provided. Subgrantees can be a State that is occupied by the legal owner and agency, local government, qualified is the dwelling where the legal owner private nonprofit organizations, or In- normally lives during the major por- dian tribes as outlined in 44 CFR tion of the calendar year. 206.434;

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Substantial Damage means damage of to subgrantees for project implementa- any origin sustained by a structure tion. The State will report program whereby the cost of restoring the progress and results to us. The States structure to its before-damage condi- also will recover and return to us any tion would equal or exceed 50 percent funds made available from other of the market value of the structure sources for the same purposes. When before the damage occurred; Native American tribes apply directly Uninhabitable means that properties to us, they will be the grantee and are certified by the appropriate State carry out ‘‘state’’ roles. or local official normally empowered to (c) Applicant (pre-award) and sub- make such certifications as meeting grantee (post-award). The applicant (a one or more of the following criteria: State agency, local government, or (1) Determined by an authorized local qualified private nonprofit organiza- government official to be substantially tion) will coordinate with interested damaged, according to National Flood homeowners to complete an applica- Insurance Program criteria contained tion to the State. The subgrantee im- in 44 CFR 59.1; plements all approved projects, gen- (2) Have been red- or yellow-tagged erally takes title to all property, and and declared uninhabitable due to envi- agrees to dedicate and maintain the ronmental contamination by flood- property in perpetuity for uses compat- waters, or otherwise determined to be ible with open-space, recreational, or uninhabitable by a State or local offi- wetlands management practices. The cial in accordance with current codes subgrantee will receive, review and or ordinances; or (3) Have been demolished due to dam- make final decisions about any ap- age or environmental contamination praisal disputes that are brought by by floodwaters. participating homeowners. The sub- We, our, or us means FEMA. grantee is accountable to the State, as well as to us, for the use of funds. [66 FR 32669, June 15, 2001; 66 FR 49554, Sept. (d) Participating homeowners. The par- 28, 2001] ticipating homeowners will notify the § 209.3 Roles and responsibilities. community of their interest to participate; provide necessary information to The following describes the general the community coordinator about roles of FEMA, the State, local com- property ownership, disaster damage, munities or other organizations that and other disaster benefits received or receive grant assistance, and partici- available; review the offer made from pating homeowners. the community; and accept it or re- (a) Federal. We will notify States quest a review appraisal. about the availability of funds, and will allocate available funding to § 209.4 Allocation and availability of States that received major disaster funds. declarations during the period covered (a) We will allocate available funds by the supplemental authority. Our Re- based on the number and value of prop- gional Directors will verify project eli- erties that meet the eligibility criteria gibility, provide technical assistance and whose owners want to participate to States upon request, make grant in an acquisition or elevation project. awards, and oversee program implementation. (b) We may reallocate funds for (b) State. The State will be the Grant- which we do not receive and approve ee to which we award funds and will be adequate applications. We will obligate accountable for the use of those funds. most available funds within 12 months The State will determine priorities for following the deadline for submitting funding within the State. This deter- applications, unless extenuating cir- mination must be made in conform- cumstances exist. ance with the HMGP project identifica- § 209.5 Applicant eligibility. tion and selection criteria (44 CFR 206.435). The State also will provide The following are eligible to apply to technical assistance and oversight to the State for a grant: applicants for project development and (a) State and local governments;

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(b) Indian tribes or authorized tribal (c) For acquisition projects, an owner organizations. A tribe may apply either who is not a United States citizen or to the State or directly to us; and qualified alien may receive current fair (c) Qualified private nonprofit orga- market value for his or her property. nizations. He or she may not receive additional amounts for pre-event fair market § 209.6 Project eligibility. value. (a) Eligible types of project activities. (d) Funds available under Pub. L. 106– 113 (the original Floyd supplemental This grant authority is for projects to appropriation) are limited to use for acquire floodprone properties and de- acquisition purposes only. molish or relocate structures per § 209.10(i), or to elevate floodprone § 209.7 Priorities for project selection. structures. Approved projects must meet the following criteria and comply (a) It is the State’s responsibility to with all other program requirements identify and select eligible buyout described in this rule; projects for funding under the supplemental grant program. All funded (b) Eligibility criteria. To be eligible, projects must be consistent with the projects must: State Hazard Mitigation Plan. The (1) Be cost effective. The State will mitigation planning process or any complete an analysis of the cost-effec- other appropriate means may identify tiveness of the project, in accordance buyout and elevation projects. with our guidance and using a method- (b) States will set priorities in their ology that we approve. We will review State mitigation plan to use as the the State’s analysis; basis for selecting projects for funding. (2) Include only properties that: The State’s priorities will address, at a (i) For acquisition, the owner agrees minimum, substantially damaged prop- to sell voluntarily; erties, repetitive loss target properties, (ii) Are within the 100-year floodplain and such other criteria that the State based on best available data or as iden- deems necessary to comply with the tified by a FIRM or FEMA-approved law. States and subgrantees are to give Disaster Recovery Map; priority consideration to projects for (iii) Were made uninhabitable (as cer- acquisition or elevations of repetitive tified by an appropriate State or local loss properties, and must include all el- official) by the effects of a declared igible repetitive loss properties in the major disaster during federal fiscal projects submitted to us for funding. years 1999 or 2000; (Approved under OMB control number 3067– (iv) For acquisition, had a pre-event 0212). fair market value of less than $300,000 [66 FR 32669, June 15, 2001; 66 FR 49554, Sept. just before the disaster event. Prop- 28, 2001] erties submitted for buyout under Pub. L. 106–113 (the original Hurricane Floyd § 209.8 Application and review proc- supplemental buyout program) are ex- ess. empt from this policy, with the limita- (a) General. This section describes the tion that in no case does the Federal procedures to be used by the State in share or offer for any such property ex- submitting an application for funding ceed $225,000; and under the Supplemental Property Ac- (v) Served as the principal residence quisition and Elevation Assistance pro- for the owner. For multifamily units gram. Under this program, the State is such as condominium buildings, all the grantee and is responsible for proc- units within the structure should be essing subgrants to applicants in ac- principal residences of the owners and cordance with 44 CFR part 13 and this not sublet. part. (3) Conform with 44 CFR part 9, (b) Timeframes. We will establish Floodplain Management and Protec- deadlines for States to submit application of Wetlands; 44 CFR part 10, Envi- tions, and States will set local applica- ronmental Considerations; and any ap- tion deadlines. States may begin for- plicable environmental and historic warding applications to us imme- preservation laws and regulations. diately upon Notice of Availability of

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Funds and must forward all applica- (i) Whether the property is now or tions not later than the date set by the ever has been used for commercial or Regional Director. States must provide industrial purposes, and to us the information described below (ii) Any information regarding his- in paragraph (c) of this section for each toric preservation that is readily avail- property proposed for acquisition or able; elevation in support of the supple- (9) Attachments for each property as mental allocation requested and within follows: the timeframe that we establish. We (i) A photograph of the structure will verify project eligibility estimates from the street; provided by States in order to assure (ii) Owner’s name; that all projects meet the criteria for (iii) Complete address, including zip the supplemental grant awards. We will code; perform an independent verification of (iv) Latitude and longitude; (v) The date of construction; this information for not less than 50 (vi) Proximity to the 100-year flood- percent of the properties submitted. plain; (c) Format. The State will forward its (vii) Panel and date of the applicable application to the Regional Director. Flood Insurance Rate Map, if any; The Application will include: a Stand- (viii) The elevation of the first habit- ard Form (SF) 424, Application for Fed- able floor and an estimate of the depth eral Assistance; FEMA form 20–15, of flooding in the structure; Budget Information—Construction (ix) The estimated pre-event fair Programs; Project Narrative (section market value of the home. Applicants 209.8(c)—community project applica- will estimate the value of properties tions (buyout plans) selected by the using the best available information, State); FEMA form 20–16, 20–16b and 20– such as inspections, public records and 16c Assurances and Certifications; market values of similar properties in Standard Form LLL, Disclosure of similar neighborhoods to arrive at a Lobbying Activities; FEMA form 20–10, pre-event fair market value that re- Financial Status Report; the Perform- flects what a willing buyer would have ance/Progress Report format; and the paid a willing seller had the disaster State’s certification that the State has not occurred. If tax assessment data reviewed all applications and that they are used as the basis, the applicant meet program eligibility criteria. The should add the relevant adjustment Project Narrative (community project percentage for that jurisdiction to ad- applications) will include: just the tax assessment to the current (1) Community applicant informa- fair market value. These adjustment tion, including contact names and data should be obtained from the juris- numbers; diction’s tax assessor’s office. For any (2) Description of the problem ad- jurisdictions where the adjustment fac- dressed by the proposed project; tor is over 25 percent, applicants (3) Description of the applicant’s de- should include a justification for the cision-making process, including alter- high adjustment factor. Applicants natives considered; should not include any other project costs in the property values. These (4) Project description, including costs will be reflected elsewhere; property locations/addresses and scope (x) Indication whether flood insur- of activities; ance was in force at the time of the (5) Project cost estimate and match loss, and policy number, if available. source; (xi) Indications that the property (6) For acquisition projects, open will meet the definition of uninhabit- space use description and maintenance able: assurance; (A) Substantial damage determina- (7) Risk and cost-effectiveness infor- tion, and name and title of determining mation, or State’s benefit-cost anal- official, or if not yet determined then: ysis; (1) For manufactured homes (mobile (8) Environmental and historic pres- homes), inundation of 1 foot or more of ervation information including water above the first habitable floor or

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other evidence of substantial damage; ceipt of our funding decision. The State or must forward any appeal from an appli- (2) For permanent structures other cant or subgrantee with a written rec- than manufactured homes, inundation ommendation to the Regional Director of 5 feet or more of water above the within 60 days of receipt. Within 90 first above-ground habitable floor or days following the receipt of an appeal, other evidence of substantial damage. the Regional Director will notify the Habitable floors do not include base- State in writing as to the new decision ments. or the need for more information. (B) Were red- or yellow-tagged and declared uninhabitable due to environ- § 209.10 Project implementation re- mental contamination by floodwaters, quirements. or otherwise determined to be uninhab- Subgrantees must enter into an itable by a State or local official under agreement with the State, with the current codes or ordinances; or written concurrence of the Regional (C) Were demolished due to damage Director, that provides the following or environmental contamination by assurances: floodwaters. (a) The subgrantee will administer (xii) Information regarding whether the grant and implement the project in the structure is on the NFIP repetitive accordance with program require- loss list (provide NFIP Repetitive Loss ments, 44 CFR parts 13 and 14, the Property Locator Number, if avail- grant agreement, and with applicable able); and Federal, State, and local laws and reg- (xiii) Observations on whether acqui- ulations. sition or elevation of the structure (b) The State and subgrantee will ad- may result in a mixture of vacant lots minister the grant in an equitable and and lots with structures remaining on impartial manner, without discrimina- them; and tion on the grounds or race, color, reli- (10) FEMA review and approval. We gion nationality, sex, age, or economic will review and verify the State’s eligi- status in compliance with section 308 bility determination and either ap- of the Stafford Act (42 U.S.C. 5151) and prove, deny, or request additional in- Title VI of the Civil Rights Act. In im- formation within 60 days. The Regional plementing the grant, the State and Director may extend this timeframe if the subgrantee will ensure that no dis- complicated issues arise. We have final crimination is practiced. approval authority for funding of all (c) The State and subgrantee will en- projects. sure that projects involving alterations to existing structures comply with all (Approved under OMB control number 3067– applicable State and local codes. 0279). (d) The State and subgrantee will en- [66 FR 32669, June 15, 2001; 66 FR 49554, Sept. sure that projects comply with applica- 28, 2001] ble State and local floodplain management requirements. Structures will be § 209.9 Appeals. elevated to the Base Flood Elevation. The State may appeal any decision (e) Property owners participating in that we make regarding projects sub- acquisition projects may receive assist- mitted for funding in the Supplemental ance up to the pre-event fair market Property Acquisition and Elevation As- value of their real property, except as sistance program. The State must sub- limited by the eligibility criteria. mit the appeal in writing to the Re- (f) The subgrantee will establish a gional Director and must include docu- process, which we must approve, mentation that justifies the request for whereby property owners participating reconsideration. The appeal must in acquisition projects may request a specify the monetary figure in dispute review of the appraisal for their prop- and the provisions in Federal law, reg- erty, or request a second appraisal. ulation, or policy with which the appel- (g) The State will reduce buyout as- lant believes the initial action was in- sistance by any duplication of benefits consistent. The applicant must appeal from other sources. Such benefits in- within 60 days of the applicant’s re- clude, but are not limited to, payments

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made to the homeowner for repair as- ees, highways or other uses that ob- sistance; insurance settlements; legal struct the natural and beneficial func- settlements; Small Business Adminis- tions of the floodplain. tration loans; and any other payments (3) After completing the acquisition made by any source to address the project, no application for future dis- property loss unless the property aster assistance will be made for any owner can provide receipts showing purpose with respect to the property to that the benefits were used for their in- any Federal entity or source, and no tended purpose to make repairs to the Federal entity or source will provide property. such assistance, even for the allowable (h) Increased Cost of Compliance cov- uses of the property described above. erage benefits under the National Flood Insurance Program (NFIP) may (4) Any structures built on the prop- be used to match elevation or acquisi- erty according to paragraph (i)(2) of tion and relocation projects. Increased this section, must be: Located to mini- Cost of Compliance claims can only be mize the potential for flood damage; used for NFIP-approved costs; these floodproofed; or elevated to the Base can then be applied to the project Flood Elevation plus one foot of grant match. This coverage does not freeboard. pay for property acquisition, but can (5) The subgrantee or other public pay demolition or structure relocation. property owner will seek the approval (i) The following restrictive cov- of the State grantee agency and our enants must be conveyed in the deed to Regional Director before conveying any property acquired, accepted, or any interest in the property to any from which structures are removed other party. The subgrantee or other (‘‘the property’’): public entity or qualified private non- (1) The property must be dedicated profit organization must retain all de- and maintained in perpetuity for uses velopment rights to the property. Our compatible with open space, rec- Regional Director will only approve reational, or wetlands management the transfer of properties that meet the practices; and criteria identified in this paragraph. (2) No new structure(s) will be built (6) In order to carry out tasks associ- on the property except as indicated in ated with monitoring, we, the sub- this paragraph: (A) A public facility that is open on grantee, or the State have the right to all sides and functionally related to a enter the parcel, with notice to the designated open space or recreational parcel owner, to ensure compliance use; with land use restrictions. Subgrantees (B) A public rest room; or may identify the open space nature of (C) A structure that is compatible the property on local tax maps to as- with open space, recreational, or wet- sist with monitoring. Whether the sub- lands management usage and proper grantee obtains full title or a conserva- floodplain management policies and tion easement on the parcel, the State practices, which the Director approves must work with subgrantees to ensure in writing before the construction of that the parcel owner maintains the the structure begins. property in accordance with land use (D) In general, allowable open space, restrictions. Specifically, the State recreational, and wetland management may: uses include parks for outdoor rec- (i) Monitor and inspect the parcel reational activities, nature reserves, every two years and certify that the cultivation, grazing, camping (except owner continues to use the inspected where adequate warning time is not parcel for open space or agricultural available to allow evacuation), tem- purposes; and porary storage in the open of wheeled (ii) Take measures to bring a non- vehicles that are easily movable (except mobile homes), unimproved, per- compliant parcel back into compliance meable parking lots and buffer zones. within 60 days of notice. Allowable uses generally do not include (7) Only as a last resort, we reserve walled buildings, flood reduction lev- the right to require the subgrantee to

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bring the property back into compli- (d) Financial reports. The State must ance and transfer the title and ease- provide a quarterly financial report to ment to a qualified third party for fu- us under 44 CFR 13.41. ture maintenance. (e) SMARTLINK Drawdowns. The (8) Every 2 years on October 1st, the State will make SMARTLINK subgrantee will report to the State, drawdowns to reimburse or advance al- certifying that the property continues lowable costs to subgrantees for ap- to be maintained consistent with the proved projects. provisions of the agreement. The State (f) Audit requirements. Uniform audit will report the certification to us. requirements as set forth in 44 CFR part 14 apply to all grant assistance § 209.11 Grant administration. provided under this subpart. We may elect to conduct a Federal audit on the (a) Cost share. We may contribute up disaster assistance grant or on any of to 75 percent of the total eligible costs. the subgrants. The State must ensure that non-Fed- (g) If a mitigation measure is not eral sources contribute not less than 25 completed, and there is not adequate percent of the total eligible costs for justification for non-completion, no the grant. The State or any subgrantee Federal funding will be provided for cannot use funds that we provide under that project. this Act as the non-Federal match for other Federal funds nor can the State § 209.12 Oversight and results. or any subgrantee use other Federal (a) FEMA oversight. Our Regional Di- funds as the required non-Federal rectors are responsible for overseeing match for these funds, except as pro- this grant authority and for ensuring vided by statute. that States and subgrantees meet all (b) Allowable costs. A State may find program requirements. Regional Direc- guidance on allowable costs for States tors will review program progress quar- and subgrantees in Office of Manage- terly. ment and Budget (OMB) Circulars A–87 (b) Monitoring and enforcement. We, and A–122 on Cost Principles. States subgrantees, and States will monitor may use up to 7 percent of the grant the properties purchased under this au- funds for management costs of the thority and ensure that the properties grant. The State should include man- are maintained in open space use. We agement costs in its application. Sub- and the State may enforce the agree- grantees must include reasonable costs ment by taking any measures that we to administer the grant as a direct or they deem appropriate. project cost in their budget. (c) Program results. The State will re- (c) Progress reports. The State must view the effectiveness of approved provide a quarterly progress report to projects after each future flood event us under 44 CFR 13.40, indicating the in the affected area to monitor whether status and completion date for each projects are resulting in expected sav- project funded. The report will include ings. The State will report to us on any problems or circumstances affect- program effectiveness after project ing completion dates, scope of work, or completion and after each subsequent project costs that may result in non- flood event. compliance with the approved grant conditions. PARTS 210–294 [RESERVED]

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PART 295—CERRO GRANDE FIRE Subpart A—General ASSISTANCE § 295.1 Purpose. Subpart A—General This part implements the Cerro Grande Fire Assistance Act (CGFAA), Sec. Public Law 106–246, 114 Stat. 584, which 295.1 Purpose. requires that the Federal Emergency 295.2 Policy. Management Agency (FEMA) establish 295.3 Information and assistance. a process to evaluate, process and pay 295.4 Organization of this part 295. claims injuries and property damage 295.5 Overview of the claims process. resulting from the Cerro Grande Fire. 295.6 Partial payments. 295.7 Authority to settle or compromise § 295.2 Policy. claims. It is our policy to provide for the ex- Subpart B—Bringing a Claim Under the peditious resolution of meritorious CGFAA claims through a process that is administered with sensitivity to the bur- 295.10 Bringing a claim under the CGFAA. dens placed upon Claimants by the 295.11 Deadline for notifying FEMA of Cerro Grande Fire. losses. 295.12 Election of remedies. § 295.3 Information and assistance. 295.13 Subrogation. Information and assistance con- 295.14 Assignments. cerning the CGFAA is available from Subpart C—Compensation Available the Office of Cerro Grande Fire Claims Under the CGFAA (OCGFC), Federal Emergency Manage- ment Agency, P.O. Box 1480, Los Ala- 295.20 Prerequisite to compensation. mos, New Mexico, 87544–1480, or tele- 295.21 Allowable compensation. phone 1–888–748–1853 (toll free). The Cerro Grande Fire Assistance site on Subpart D—Claims Evaluation the World Wide Web can be accessed at 295.30 Establishing losses and damages. http://www.fema.gov/cerrogrande. In the 295.31 Reimbursement of claim expenses. interest of brevity, we do not restate 295.32 Determination of compensation due the provisions of the CGFAA in most to claimant. instances. Our website has a copy of 295.33 Supplementing claims. the CGFAA and we will provide a copy 295.34 Reopening a claim. upon request. 295.35 Access to records. 295.36 Confidentiality of information. § 295.4 Organization of this part 295. This part contains six subparts. Sub- Subpart E—Dispute Resolution part A provides an overview of the CGFAA process. Subpart B describes 295.40 Scope. the procedures for bringing a claim. 295.41 Administrative appeal. Subpart C explains what compensation 295.42 Arbitration. 295.43 Judicial review. is available. Subpart D discusses the claims evaluation process. Subpart E Subpart F—Glossary explains the dispute resolution process. Subpart F contains a glossary in which 295.50 Definitions. various terms used in the rule are de- AUTHORITY: Pub. L. 106–246, 114 Stat. 511, fined. 584; Reorganization Plan No. 3 of 1978, 43 FR 41493, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 § 295.5 Overview of the claims process. FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. (a) The CGFAA is intended to provide 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412. persons who suffered losses from the SOURCE: 66 FR 15959, Mar. 21, 2001, unless Cerro Grande Fire with a simple, expe- otherwise noted. dited process to seek redress from the

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United States. This section provides a mination an Administrative Appeal brief explanation of the claims process may be filed with the Director of for claims other than subrogation OCGFC. If the Claimant remains dis- claims. It is not intended to supersede satisfied after the appeal is decided, the more specific regulations that fol- the dispute may be resolved through low and explain the claims process in binding arbitration or heard in the greater detail. In order to obtain bene- United States District Court for the fits under this legislation, a person District of New Mexico. must submit all Cerro Grande Fire related claims against the United States § 295.6 Partial payments. to FEMA. A person who elects to pro- OCGFC, on its own initiative, or in ceed under the CGFAA is barred from response to a request by a Claimant, bringing a claim under the Federal may make one or more partial pay- Tort Claims Act or filing a civil action ments on the claim. A partial payment against the United States for damages can be made if OCGFC has a reasonable resulting from the Cerro Grande Fire. basis to estimate the Claimant’s dam- Judicial review of our decisions under the CGFAA is available. ages. Acceptance of a partial payment (b) The first step in the process is to in no way affects a Claimant’s ability file a Notice of Loss with OCGFC. to pursue an Administrative Appeal of OCGFC will provide the Claimant with the Authorized Official’s Determina- a written acknowledgement that the tion or to pursue other rights afforded claim has been filed and the claim by the CGFAA. Partial payment deci- number. sions cannot be appealed. (c) Shortly thereafter, a Claims Re- viewer will contact the Claimant to re- § 295.7 Authority to settle or compromise claims. view the claim. The Claims Reviewer will help the Claimant formulate a Notwithstanding any other provision strategy for obtaining any necessary of these regulations, the Director of documentation or other support. This OCGFC may extend an offer to settle or assistance does not relieve the Claim- compromise a claim or any portion of a ant of his or her responsibility for es- claim, which if accepted by the Claim- tablishing all elements of the Loss and ant will be binding on the Claimant the compensatory damages that are and on the United States, except that sought, including that the Cerro the United States may recover funds Grande Fire caused the Loss. After the improperly paid to a Claimant due to Claimant has had an opportunity to fraud or misrepresentation on the part discuss the claim with the Claims Re- of the Claimant or the Claimant’s rep- viewer, a Proof of Loss will be pre- resentative, a material mistake on our sented to the Claimant for signature. part or the Claimant’s failure to co- After any necessary documentation has operate in an audit as required by been obtained and the claim has been § 295.35. fully evaluated, the Claims Reviewer will submit a report to the Authorized Official. The Claims Reviewer is re- Subpart B—Bringing a Claim sponsible for providing an objective Under the CGFAA evaluation of the claim to the Author- § 295.10 Bringing a claim under the ized Official. CGFAA. (d) The Authorized Official will review the report and determine whether (a) Any Injured Person may bring a compensation is due to the Claimant. claim under the CGFAA by filing a No- The Claimant will be notified in writ- tice of Loss. A claim submitted on any ing of the Authorized Official’s Deter- form other than a Notice of Loss will mination. If the Claimant is satisfied not be accepted. The Claimant must with the decision payment will be provide a brief description of each Loss made after the Claimant returns a on the Notice of Loss. completed Release and Certification (b) A single Notice of Loss may be Form. If the Claimant is dissatisfied submitted on behalf of a Household with the Authorized Official’s Deter- containing Injured Persons provided

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that all Injured Persons on whose be- or by filing a civil action authorized by half the claim is presented are identi- any other provision of law. fied. (b) An Injured Person who files a (c) The Notice of Loss must be signed Federal Tort Claims Act claim or who by each Claimant, if the Claimant is an initiates a civil action against the individual or by a duly authorized legal United States or any officer, employee representative of each Claimant, if the or agent of the United States relating Claimant is an entity or an individual to the Cerro Grande Fire on or after who lacks the legal capacity to sign August 28, 2000 is not eligible under the the Notice of Loss. If one is signing a CGFAA to file a Notice of Loss. Notice of Loss as the legal representa- (c) An Injured Person who filed be- tive of a Claimant, the signer must dis- fore August 28, 2000 a Federal Tort close his or her relationship to the Claims Act claim or a civil action Claimant. FEMA may require a legal against the United States for injuries, representative to submit evidence of losses or damages relating to the Cerro authority. Grande Fire may file a Notice of Loss (d) Notice of Loss forms are available provided that the Federal Tort Claims from OCGFC by request. They may be Act claim is withdrawn or the Injured obtained through the mail, in person at Person is dismissed as a party to the the OCGFC office or by telephone re- civil action with prejudice not later quest. The Notice of Loss form can also than October 27, 2000. The withdrawal be downloaded from the Internet at of a Federal Tort Claims Act claim http://www.fema.gov/ cerrogrande. must be in the form of a signed, written statement on a form provided by (e) Notices of Loss may be filed with OCGFC that is filed with OCGFC not OCGFC by mail to P.O. Box 1480, Los later than October 27, 2000. OCGFC will Alamos, NM 87544–1480. OCGFC is un- promptly forward the original notice of able to accept Notices of Loss sub- withdrawal to the applicable federal mitted by facsimile or e-mail. agency and retain a copy in the Claim- (f) A Notice of Loss that is com- ant’s file. pletely filled out and properly signed is deemed to be filed on the date it is re- § 295.13 Subrogation. ceived by OCGFC. An insurer or other third party with the rights of a subrogee, who has com- § 295.11 Deadline for notifying FEMA of losses. pensated an Injured Person for Cerro Grande Fire related losses, may file a The deadline for filing a Notice of Subrogation Notice of Loss under the Loss is August 28, 2002. Except as pro- CGFAA for the subrogated claim. An vided in § 295.21(d) with respect to miti- insurer or other third party with the gation and in § 295.31(b) with respect to rights of a subrogee may file a Sub- the lump sum payment described there- rogation Notice of Loss without regard in, a Loss that has not been described: to whether the Injured Party who re- on a Notice of Loss, on a supplement to ceived payment from the insurer or a Notice of Loss or a request to supple- third party filed a Notice of Loss. A ment a Notice of Loss under § 295.33, or Subrogation Notice of Loss may not be a request to reopen a claim under filed until the insurer or other party § 295.34, received by OCGFC on or before with the rights of a subrogee has made August 28, 2002 cannot be compensated all payments that it believes the In- under the CGFAA. The CGFAA estab- jured Person is entitled to receive for lishes this deadline and does not pro- Cerro Grande Fire related losses under vide any extensions of the filing dead- the terms of the insurance policy or line. other agreement between the insurer or other party with the rights of a § 295.12 Election of remedies. subrogee and the Injured Person. By (a) By filing a Notice of Loss, an In- filing a Subrogation Notice of Loss for jured Person waives the right to seek any subrogated claim, the insurer or redress for Cerro Grande Fire related third party elects the CGFAA as its ex- claims against the United States clusive remedy against the United through the Federal Tort Claims Act States for all subrogated claims arising

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out of the Cerro Grande Fire. Subroga- (reduce) their damages, if possible, as tion claims must be made on a Sub- required by New Mexico tort law. rogation Notice of Loss form furnished (b) Exclusions. Except as otherwise by OCGFC. FEMA will evaluate sub- provided in the CGFAA, a Claimant rogation claims on their merits. FEMA will not receive compensation for any may reimburse insurers and other third injury or damage that is not compen- parties with the rights of a subrogee sable under the Federal Tort Claims for reasonable payments made to an In- Act and New Mexico law. Punitive jured Party on or before October 25, damages, statutory damages under § 30– 2000, which exceeded or were not re- 32–4 of the New Mexico Statutes Anno- quired by the terms of the insurance tated (1978), interest on claims, attor- policy or other agreement creating a ney’s fees and agents’ fees incurred in right of subrogation. FEMA will not re- prosecuting a claim under the CGFAA imburse insurers and other third par- or an insurance policy, adjusting costs ties with the rights of a subrogee for incurred by an insurer or other third payments made to an Injured Party party with the rights of a subrogee, and after October 25, 2000 that exceeded or taxes that may be owed by a Claimant are not required by the terms of the in- as a consequence of receiving an award surance policy or other agreement cre- are not recoverable from FEMA. The ating a right of subrogation. cost to a Claimant of prosecuting a claim under the CGFAA does not con- § 295.14 Assignments. stitute compensatory damages and is Assignment of claims and the right not recoverable from FEMA, except as to receive compensation for claims provided in § 295.31(b). under the CGFAA is prohibited and (c) Damages arising in the future. In will not be recognized by FEMA. the event that a lump sum payment is awarded to a Claimant for future damages the amount of the payment will be Subpart C—Compensation Discounted to Present Value. Available Under the CGFAA (d) Destruction of home—(1) Home and contents. Compensatory damages for § 295.20 Prerequisite to compensation. the Destruction of a Home may include In order to receive compensation the reasonable cost of reconstructing a under the CGFAA a Claimant must be home comparable in design, construc- an Injured Person who suffered a Loss tion materials, size and improvements as a result of the Cerro Grande Fire to the home that was lost taking into and sustained damages. account post-fire construction costs in the community in which the home ex- § 295.21 Allowable compensation. isted before the fire and current build- (a) Allowable compensation. The ing codes and standards. Compensatory CGFAA provides for the payment of damages may also include the cost of compensatory damages. Compensatory removing debris and burned trees, sta- damages are ‘‘real, substantial and just bilizing the land, replacing household money damages established by the contents, and compensation for any de- Claimant in compensation for actual or crease in the value of land on which real injury or loss.’’ In general, an In- the structure sat pursuant to para- jured Person will be compensated for graph (e) of this section. (2) Trees and Losses to the same extent that the landscaping. Compensation for the Re- plaintiff in a successful tort action placement Cost of destroyed trees and brought against a private party under landscaping will be limited to 25% of the laws of the State of New Mexico the pre-fire value of the structure and would be compensated. In addition the lot. CGFAA permits FEMA to compensate (3) Mitigation. If requested by a Injured Parties for certain categories Claimant, FEMA may compensate a of ‘‘loss of property,’’ ‘‘business loss,’’ Claimant for the reasonable cost of and ‘‘financial loss,’’ which are enu- mitigation measures that will reduce merated in the CGFAA. Damages must the property’s vulnerability to the fu- be reasonable in amount. Claimants ture risk of wildfire, flood or other nat- must take reasonable steps to mitigate ural hazards related to the Cerro

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Grande Fire. Mitigation compensation ing that Claimants repay Small Busi- made available under this section may ness Administration disaster loans con- not exceed fifteen percent of payments temporaneously with the receipt of from all sources (i.e., CGFAA, insur- CGFAA compensation awards. ance proceeds, FEMA assistance under (h) Mitigation. FEMA may com- the Stafford Act) for damage to the pensate Claimants for the cost of rea- structure and lot. The Claimant must sonable and cost-effective efforts in- obtain all government permits, approv- curred on or before August 28, 2003 to als and clearances required by applica- mitigate the heightened risks of wild- ble law, ordinance or regulation before fire, flood or other natural disaster reconstructing the mitigation measures. sulting from the Cerro Grande Fire The mitigation measures must be re- that are consistent with a OCGFC-ap- viewed by FEMA under applicable envi- proved Mitigation Compensation Plan. ronmental and historic preservation No more than 15% of the total amount laws. Claimants must construct the appropriated by Congress for the pay- mitigation measures for which they ment of Cerro Grande fire related have received compensation. claims may be allocated for mitigation (e) Reduction in the value of real prop- compensation under this subsection. erty. Compensatory damages may be Claimants seeking compensation under awarded for reduction in the value of this provision must file a Notice of real property that a Claimant owned Loss under § 295.10 or amend a Notice of before the fire if: Loss previously filed under § 295.33 or (1) The Claimant sells the real prop- § 295.34. The Notice of Loss or amend- erty in a good faith arm’s length trans- ment must specify that compensation action that is closed no later than Au- for mitigation is sought. The Notice of gust 28, 2002 and realizes a loss in the Loss must be filed or a proposed pre-fire value; or amendment under § 295.33 or § 295.34 (2) The Claimant can establish that submitted no later than August 28, the value of the real property was per- 2002. A separate request for mitigation manently diminished as a result of the assistance must be filed with OCGFC Cerro Grande Fire. no later than August 28, 2003. Claim- (f) Destruction of unique items of per- ants must construct the mitigation sonal property. Compensatory damages may be awarded for unique items of measures for which they have received personal property that were destroyed compensation. as a result of the Cerro Grande Fire. If (i) Subsistence—(1) Allowable damages. the item can be replaced in the current FEMA may reimburse an Indian tribe, market, the cost to replace the item a Tribal Member or a Household In- will be awarded. If the item cannot be cluding Tribal Members for the reason- replaced in the current market, its fair able cost of replacing Subsistence Re- market value on the date it was de- sources customarily and traditionally stroyed will be awarded. used by the Claimant on or before May (g) Disaster recovery loans. FEMA will 4, 2000, but no longer available to the reimburse Claimants awarded com- Claimant as a result of the Cerro pensation under the CGFAA for inter- Grande Fire. For each category of Sub- est paid on Small Business Administra- sistence Resources, the Claimant must tion disaster loans and similar loans elect to receive compensatory damages obtained after May 4, 2000. Interest will either for the increased cost of obtain- be reimbursed for the period beginning ing Subsistence Resources from lands on the date that the loan was taken not damaged by the Cerro Grande Fire out and ending on the date when the or for the cost of procuring substitute Claimant receives a compensation resources in the cash economy. Long- award (other than a partial payment). term damage awards will be made in Claimants are required to use the pro- the form of lump sum cash payments ceeds of their compensation awards to to eligible Claimants. repay Small Business Administration (2) Proof of subsistence use. FEMA disaster loans. FEMA will cooperate may consider evidence submitted by with the Small Business Administra- Claimants, Indian Tribes and other tion to formulate procedures for assur- knowledgeable sources in determining

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the nature and extent of a Claimant’s services not later than June 19, 2000 subsistence uses. provided that actual revenues earned (3) Duration of damages. Compen- by the business during the period May satory damages for subsistence losses 1–June 30, 2000 did not exceed reason- will be paid for the period between May able projections for the period and the 4, 2000 and the date when Subsistence shortfall between actual revenues and Resources can reasonably be expected reasonable projections resulted from to return to the level of availability the Cerro Grande Fire. Compensation that existed before the Cerro Grande will be the difference between the Fire. FEMA may rely upon the advice Claimant’s established post-fire price of experts in making this determina- for the good or service actually tion. charged to the general public and the (j) Flood insurance. A Claimant that post-fire discounted price charged to owned or leased real property in the counties of Los Alamos, Rio Arriba, fire survivors. Sandoval or Santa Fe at the time of (m) Duplication of benefits. The the Cerro Grande Fire who was not re- CGFAA allows FEMA to compensate quired by law to maintain flood insur- Injured Parties only if their damages ance before the fire and who did not have not been paid or will not be paid maintain flood insurance before the by insurance or a third party. fire may be reimbursed by FEMA for (1) Insurance. Claimants who carry reasonable flood insurance premiums insurance will be required to disclose incurred during the period beginning the name of the insurer(s) and the na- May 12, 2000 and ending May 12, 2002 on ture of the insurance and provide the owned or leased real property. Al- OCGFC with such insurance docu- ternatively, FEMA may provide flood mentation as OCGFC reasonably reinsurance to such Claimants directly quests. through a group or blanket policy. (2) Coordination with our Public Assist- (k) Out of pocket expenses for treatment ance Program. Injured Parties eligible of mental health conditions. FEMA may for disaster assistance under our Public reimburse an individual Claimant for Assistance Program are expected to reasonable out of pocket expenses in- apply for all available assistance. Com- curred for treatment of a mental pensation will not be awarded under health condition rendered by a licensed the CGFAA for: mental health professional, which condition resulted from the Cerro Grande (i) Emergency costs that are eligible Fire and which could not be effectively for reimbursement under the Public addressed through no-cost crisis coun- Assistance Program; or seling services available in the commu- (ii) Losses that are eligible for repair, nity. FEMA will not reimburse for restoration or replacement under the treatment rendered after December 31, Public Assistance Program; or 2001. (iii) Costs or charges determined ex- (l) Donations. FEMA will compensate cessive under the Public Assistance individual or business Claimants in the Program. counties of Los Alamos, Rio Arriba, (3) Benefits provided by non-govern- Sandoval and Santa Fe (including mental organizations and individuals. those located on pueblos and Indian Unless otherwise provided by these reg- reservations) for the cost of merchan- ulations, disaster relief payments made dise, use of equipment or other non- to a Claimant by a non-governmental personal services, directly or indirectly organization or an individual, other donated to survivors of the Cerro than wages paid by the Claimant’s em- Grande Fire not later than June 19, ployer or insurance payments, will be 2000. Donations will be valued at cost. disregarded in evaluating claims and FEMA will also compensate businesses located in the counties of Los Alamos, need not be disclosed to OCGFC by Rio Arriba, Sandoval and Santa Fe (in- Claimants. cluding those located on pueblos and (4) Benefits provided by our Individual Indian reservations) for discounts of- Assistance program. Compensation fered to fire survivors on goods and under the CGFAA will not be awarded

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for losses or costs that have been reim- before January 1, 2001 should submit a bursed under the Individual and Fam- signed Proof of Loss to OCGFC not ily Grant Program or any other FEMA later than June 19, 2001. Non-subroga- Individual Assistance Program. tion Claimants who file a Notice of (5) Worker’s compensation claims. Indi- Loss on or after January 1, 2001 should viduals who have suffered injuries that submit a signed Proof of Loss to are compensable under State or Fed- OCGFC not later than 150 days after eral worker’s compensation laws must the date when the Notice of Loss was apply for all benefits available under submitted. These deadlines may be ex- such laws. tended at the discretion of the Director of OCGFC for good cause. If a non-sub- Subpart D—Claims Evaluation rogation Claimant fails to submit a signed Proof of Loss within the time- § 295.30 Establishing losses and dam- frames set forth in this section and ages. does not obtain an extension from the (a) Burden of proof. The burden of Director of OCGFC, OCGFC may ad- proving Losses and damages rests with ministratively close the claim and re- the Claimant. A Claimant may submit quire the Claimant to repay any par- for the Administrative Record a state- tial payments made on the claim. Sub- ment explaining why the Claimant be- rogation Claimants will submit the lieves that the Losses and damages are Proof of Loss contemporaneously with compensable and any documentary evi- filing the Notice of Loss. dence supporting the claim. Claimants (c) Release and Certification Form. All will provide documentation, which is Claimants who receive compensation reasonably available, to corroborate under the CGFAA are required to sign the nature, extent and value of their a Release and Certification Form. The losses and/or to execute affidavits in a Release and Certification Form must form established by OCGFC. FEMA be executed by the Claimant or the may compensate a Claimant for a Loss Claimant’s legal representative if the in the absence of supporting docu- Claimant is an entity or lacks the legal mentation, in its discretion, on the capacity to execute the Release and strength of an affidavit or Proof of Certification Form. The Release and Loss executed by the Claimant, if docu- Certification Form must be received by mentary evidence substantiating the OCGFC within 120 days of the date loss is not reasonably available. FEMA when the Authorized Official’s Deter- may request that a business Claimant mination is rendered under § 295.32, or execute an affidavit, which states that if subsequent proceedings occur under the Claimant will provide documentary Subpart E of these regulations, not evidence, including but not limited to later than 60 days after the date when income tax returns, if requested by our further review of the decision (if avail- Office of the Inspector General or the able) is precluded. The United States General Accounting Office during an will not attempt to recover compen- audit of the claim. satory damages paid to a Claimant who (b) Proof of Loss. All Claimants are has executed and returned a Release required to attest to the nature and ex- and Certification Form within the peri- tent of each Loss for which compensa- ods provided above, except in the case tion is sought in the Proof of Loss. The of fraud or misrepresentation by the Proof of Loss, which will be in a form Claimant or the Claimant’s representa- specified by OCGFC, must be signed by tive, failure of the Claimant to cooper- the Claimant or the Claimant’s legal ate with an audit as required by § 295.35 representative if the Claimant is a not or a material mistake by FEMA. an individual or is an individual who lacks the legal capacity to execute the § 295.31 Reimbursement of claim ex- Proof of Loss. The Proof of Loss must penses. be signed under penalty of perjury and (a) FEMA will reimburse Claimants subject to the provisions of 18 for the reasonable costs they incur in U.S.C.1001, which establishes penalties copying documentation requested by for false statements. Non-subrogation OCGFC. FEMA will also reimburse Claimants who filed a Notice of Loss Claimants for the reasonable costs

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they incur in providing appraisals, or ceives the completed Release and Cer- other third-party opinions, requested tification Form. If the Claimant does by OCGFC. FEMA will not reimburse not either submit a Release and Cer- Claimant for the cost of appraisals, or tification Form to FEMA or initiate an other third party opinions, not re- Administrative Appeal no later than quested by OCGFC. 120 Days after the date that appears on (b) FEMA will provide a lump sum the Authorized Official’s Determina- payment for incidental expenses in- tion, he or she will be conclusively pre- curred in claims preparation to indi- sumed to have accepted the Authorized vidual and business Claimants that are Official’s Determination. The Director awarded compensatory damages under of OCGFC may modify the deadlines the CGFAA after a properly executed set forth in this subsection at the re- Release and Certification Form has quest of a Claimant for good cause been returned to OCGFC. The amount shown. of the lump sum payment will be the greater of $100 or 5% of CGFAA com- § 295.33 Supplementing claims. pensatory damages and insurance pro- A Claimant may amend the Notice of ceeds recovered by the Claimant for Loss to include additional claims at Cerro Grande Fire related losses (not any time before signing a Proof of including the lump sum payment or Loss. After the Claimant has submitted monies reimbursed under the CGFAA a Proof of Loss and before submission for the purchase of flood insurance), of the Release and Certification Form, but will not exceed $15,000. No more a Claimant may request that the Direc- than one lump sum payment will be tor of OCGFC consider one or more made to all Claimants in a Household, Losses not addressed in the Proof of regardless of whether the Household Loss. The request must be submitted in filed separate or combined Notices of writing to the Director of OCGFC and Loss. The following Claimants will not received not later than the deadline for be eligible to receive the lump sum filing an Administrative Appeal under payment: subrogation Claimants and § 295.32 or August 28, 2002, whichever is Claimants whose only Cerro Grande earlier. It must be supported by the Fire related loss is for flood insurance Claimant’s explanation of why the Loss premiums. was not previously reported. If good § 295.32 Determination of compensa- cause is found to consider the addition due to claimant. tional loss, the Director will determine whether compensation is due to the (a) Authorized Official’s report. After Claimant for the Loss under the Ad- OCGFC has evaluated all elements of a ministrative Appeal procedures de- claim as stated in the Proof of Loss, scribed in § 295.41. the Authorized Official will issue, and provide the Claimant with a copy of, § 295.34 Reopening a claim. the Authorized Official’s Determina- tion. (a) The Director of OCGFC may re- (b) Claimant’s options upon issuance of open a claim if requested to do so by the Authorized Official’s determination. the Claimant, notwithstanding the sub- Not later than 120 days after the date mission of the Release and Certifi- that appears on the Authorized Offi- cation Form, for the limited purpose of cial’s Determination, the Claimant considering issues raised by the request must either accept the findings by sub- to reopen if: mitting a Release and Certification (1) The Claimant desires mitigation Form to FEMA or initiate an Adminis- compensation and the request to re- trative Appeal in accordance with open is filed not later than August 28, § 295.41. The CGFAA requires that 2003 in accordance with § 295.21(d) or Claimants sign the Release and Certifi- (h); or cation Form to receive payment on (2) The Claimant closed the sale of their claims (except for partial pay- real property not later than August 28, ments). The Claimant will receive pay- 2002 and wishes to present a claim for ment of compensation awarded by the reduction in the value of the real prop- Authorized Official after FEMA re- erty under § 295.21(e) and the request to

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reopen is filed not later than August tion or seek judicial review following 28, 2002; or an Administrative Appeal. (3) The Claimant has incurred Re- placement Costs under § 295.21(d) in ex- § 295.41 Administrative appeal. cess of those previously awarded and is (a) Notice of appeal. A Claimant may not prohibited by the terms of an request that the Director of OCGFC re- agreement pertaining to home replace- view the Authorized Official’s Deter- ment with OCGFC from requesting mination by written request to the Ap- that the case be reopened; or peals Docket, Office of Cerro Grande (4) The Director of OCGFC otherwise Claims, P.O. Box 1480, Los Alamos, NM determines that Claimant has dem- 87544–1480, postmarked or delivered onstrated good cause. within 120 Days after the date that ap- (b) The Director of OCGFC may es- pears on the Authorized Official’s De- tablish a deadline by which requests to termination. The Claimant will submit reopen under paragraphs (a)(3) or (4) of along with the notice of appeal a state- this section must be submitted. The ment explaining why the Authorized deadline will be published as a notice Official’s Determination was incorrect. in the FEDERAL REGISTER and broadly (b) Acknowledgement of appeal. disseminated throughout the commu- OCGFC will acknowledge the receipt of nities, pueblos and Indian reservations appeals that are timely filed. Fol- in Los Alamos, Rio Arriba, Sandoval, lowing the receipt of a timely filed ap- and Santa Fe Counties. peal, the Director of OCGFC will obtain the Administrative Record from the § 295.35 Access to records. Authorized Official and transmit a For purpose of audit and investiga- copy to the Claimant. tion, a Claimant will grant the FEMA (c) Supplemental filings. The Claimant Office of the Inspector General and the may supplement the statement of rea- Comptroller General of the United sons and provide any additional docu- States access to any property that is mentary evidence supporting the ap- the subject of a claim and to any and peal within 60 Days after the date when all books, documents, papers, and the appeal is filed. The Director of records maintained by a Claimant or OCGFC may extend these timeframes under the Claimant’s control per- or authorize additional filings either taining or relevant to the claim. on his or her own initiative or in response to a request by the Claimant for § 295.36 Confidentiality of information. good cause shown. Confidential information submitted (d) Admissible evidence. The Claimant by individual Claimants is protected may rely upon any relevant evidence to from disclosure to the extent permitted support the appeal, regardless of by the Privacy Act. These protections whether the evidence was previously are described in the Privacy Act Notice submitted to the Claims Reviewer for provided with the Notice of Loss. Other consideration by the Authorized Offi- Claimants should consult with FEMA cial. concerning the availability of confiden- (e) Obtaining evidence. The Director of tiality protection under exemptions to OCGFC may request from the Claimant the Freedom of Information Act and or from the Authorized Official any ad- other applicable laws before submit- ditional information that is relevant to ting confidential, proprietary or trade the issues posed by the appeal in his or secret information. her discretion. (f) Conferences. The Director of Subpart E—Dispute Resolution OCGFC may schedule a conference to gain a better understanding of the § 295.40 Scope. issues or to explore settlement possi- This subpart describes a Claimant’s bilities. right to bring an Administrative Ap- (g) Hearings. The Director of OCGFC peal in response to the Authorized Offi- may exercise the discretion to convene cial’s Determination. It also describes an informal hearing to receive oral tes- the Claimant’s right to pursue arbitra- timony from witnesses or experts. The

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rules under which hearings will be con- arbitration is filed and before the time ducted will be established by the Direc- a decision is rendered, either party tor of OCGFC. Formal rules of evidence may request in writing that the Alter- applicable to court proceedings will nate Dispute Resolution Office stay not be used in hearings under this sub- further proceedings in the arbitration section. Hearings will be transcribed to facilitate settlement discussions. A and the transcript will be entered in mediator may be appointed (if re- the Administrative Record. quested by the parties) to facilitate (h) Decision on appeal. After the allot- settlement discussions. If both parties ted time for submission of evidence has concur in the request, the Alternate passed, the Director of OCGFC will Dispute Resolution Office will stay the close the Administrative Record and arbitration and appoint a mediator at render a written decision on the Ad- our expense. The stay may be termi- ministrative Appeal. The Director of OCGFC’s decision on the Administra- nated and the arbitration resumed tive Appeal will constitute the final de- upon written request of either party to cision of the Director of FEMA under the Alternate Dispute Resolution Of- §§ 104(d)(2)(B) and 104(i)(1) of the fice. If the dispute is settled, the Alter- CGFAA. nate Dispute Resolution Office will (i) Claimant’s options following appeal. issue an order terminating the arbitra- The Claimant’s concurrence with the tion and provide the Claimant with a decision in the Administrative Appeal Release and Certification Form. will be conclusively presumed unless (d) Selection of arbitrator. Arbitrators the Claimant initiates arbitration in will be selected from a list of qualified accordance with § 295.42 or seeks judi- arbitrators who have agreed to serve cial review in accordance with § 295.43. provided by the Alternate Dispute Res- If the Claimant concurs with the Direc- olution Office. If the amount in dispute tor’s determination, payment of any is $300,000 or less, the arbitration will additional damages awarded by the Di- be decided by one arbitrator selected rector will be made to the Claimant by the Claimant from the list. If the upon receipt of a properly executed Re- amount in dispute exceeds $300,000, a lease and Certification Form. panel of three arbitrators selected at § 295.42 Arbitration. random by the Alternate Dispute Reso- lution Office will decide the arbitra- (a) Initiating arbitration. A Claimant tion. who is dissatisfied with the outcome of the Administrative Appeal may ini- (e) Conduct of arbitration. The arbitra- tiate binding arbitration by submitting tion will be conducted in a manner de- a written request for arbitration to the termined by the arbitrator consistent Arbitration Administrator for Cerro with guidelines established by the Al- Grande Claims, Alternate Dispute Res- ternate Dispute Resolution Office. The olution Office, Federal Emergency Alternate Dispute Resolution Office Management Agency, 500 C Street, will provide these guidelines upon re- SW., room 214, Washington, DC 20472 on quest. a form provided by OCGFC. The writ- (f) Hearings. The arbitrator may con- ten request for arbitration must be re- vene a hearing at a location designated ceived not later than 60 days after the by the Alternate Dispute Resolution date that appears on the Administra- Office. Whenever possible hearings will tive Appeal decision. be held in Los Alamos, New Mexico un- (b) Permissible claims. A Claimant may less the parties jointly agree to a dif- not arbitrate an issue unless it was ferent location. raised and decided in the Administra- (g) Decision. After reviewing the evi- tive Appeal. Arbitration will be con- dence, the arbitrator(s) will render a ducted on the evidence in the Adminis- decision in writing to the Alternate trative Record. Evidence not pre- Dispute Resolution Office. The Alter- viously entered into the Administra- nate Dispute Resolution Office will tive Record will not be considered. (c) Settlement and mediation alter- transmit the decision to the Claimant natives. At any time after a request for and the Director of OCGFC. If a panel

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of three arbitrators conducts the arbi- trative Record. The court will uphold tration, at least two of the three arbi- our decision if it is supported by sub- trators must sign the decision. The de- stantial evidence on the record consid- cision will be rendered no later than 10 ered as a whole. If the judge has award- Days after a hearing is concluded or 60 ed damages over and above those pre- Days after the arbitration is initiated, viously paid, FEMA will cause the whichever is earlier. The Alternate damages to be paid to the Claimant Dispute Resolution Office may extend upon receipt of the Release and Certifi- the time for a decision. The decision cation Form or as otherwise specified will establish the compensation due to by order of the court. Claimants who the Claimant, if any, and the reasons have received any compensation under therefore. the CGFAA must return a Release and (h) Action on arbitration decision. The Certification Form as provided in Alternate Dispute Resolution Office § 295.30(c), regardless of whether the will forward the arbitration decision court awards additional compensation. and a Release and Certification Form to the Claimant. A Claimant who has Subpart F—Glossary received or who has been awarded any compensation under the CGFAA must § 295.50 Definitions sign and return the Release and Certifi- cation Form, regardless of whether any Administrative Appeal means an ap- additional compensation is awarded by peal of the Authorized Official’s Deter- the arbitration. Additional compensa- mination to the Director of OCGFC in tion awarded in the arbitration will be accordance with the provisions of Sub- paid to the Claimant after the signed part E of these regulations. Release and Certification Form is re- Administrative Record means all infor- ceived. mation submitted by the Claimant and (i) Final decision. The decision of the all information collected by FEMA arbitrator will be final and binding on concerning the claim, which is used to all parties and will not be subject to evaluate the claim and to formulate any administrative or judicial review. the Authorized Official’s Determina- The arbitrator may correct clerical, ty- tion. It also means all information that pographical or computational errors as is submitted by the Claimant or FEMA requested by the Alternate Dispute in an Administrative Appeal and the Resolution Office. decision of the Administrative Appeal. (j) Administration of arbitration. The It excludes the opinions, memoranda Alternate Dispute Resolution Office and work papers of our attorneys and will serve as arbitration administrator drafts of documents prepared by and will conclusively resolve any pro- OCGFC personnel and contractors. cedural disputes arising in the course Alternate Dispute Resolution Office of the arbitration. The Alternate Dis- means the Office established by FEMA pute Resolution Office will pay the fees to promote use of Alternative Dispute of the arbitrator and reimburse the ar- Resolution as a means of resolving dis- bitrator for arbitration related ex- putes. The address of the Alternate penses unless the parties jointly agree Dispute Resolution Office is Federal otherwise. Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. § 295.43 Judicial review. Authorized Official means an em- As an alternative to arbitration, a ployee of the United States who is dele- Claimant dissatisfied with the outcome gated with authority by the Director of of an Administrative Appeal may seek OCGFC to render binding determina- judicial review of the decision by tions on claims and to determine com- bringing a civil lawsuit against FEMA pensation due to Claimants under the in the United States District Court for CGFAA. the District of New Mexico. This law- Authorized Official’s Determination suit must be brought within 60 Days of means a report signed by an Author- the date that appears on the Adminis- ized Official and mailed to the Claim- trative Appeal decision. The court may ant evaluating each element of the only consider evidence in the Adminis- claim as stated in the Proof of Loss

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and determining the compensation, if not ‘‘Injured Persons’’ for purposes of any, due to the Claimant. the CGFAA. Claimant means a person who has Loss means ‘‘injury or loss of prop- filed a Notice of Loss under the erty, or personal injury or death,’’ as CGFAA. that phrase appears in the Federal Tort Claims Reviewer means an employee Claims Act, 28 U.S.C. 1346(b)(1), and the of the United States or an OCGFC con- several categories of ‘‘property loss,’’ tractor or subcontractor who is author- ‘‘business loss’’ or ‘‘financial loss’’ set ized by the Director of OCGFC to re- out in the § 104(d) of the CGFAA. view and evaluate claims submitted Mitigation Compensation Plan means a under the CGFAA. written mitigation plan submitted by a Days means calendar days, including local government with land use regu- weekends and holidays. latory authority or by an Indian tribe Destruction of a Home means destruc- that recommends specific mitigation tion or physical damage to a residence measures to reduce the heightened or the land upon which it sat, resulting risks of wildfire, flood or other natural from the Cerro Grande Fire. hazards resulting from the Cerro Discount to Net Present Value means a Grande Fire or seeks compensation for reduction of an award for damages aris- the cost of such measures expended being in the future by making allowance fore August 28, 2000, or both. The Miti- for the fact that such award, if prop- gation Compensation Plan may address erly invested would earn interest. property specific mitigation measures Household means a group of people, and community level mitigation meas- related or unrelated, who live together ures. on a continuous basis and does not in- Notice of Loss means a form supplied clude members of an extended family by OCGFC through which an Injured who do not regularly and continuously Person makes a binding, conclusive cohabit. and irrevocable election to have all Household Including Tribal Members Losses resulting from the Cerro Grande means a Household that existed on Fire reviewed by FEMA for possible May 4, 2000, which included one or compensation under the CGFAA. more Tribal Members as continuous Proof of Loss means a statement, residents. signed by a Claimant under penalty of Indian tribe means an entity listed on perjury and subject to the provisions of the most recent list of federally recog- 18 U.S.C.1001 that the claim is true and nized tribes published in the FEDERAL correct, attesting to the nature and ex- REGISTER by the Secretary of the Inte- tent of the Claimant’s injuries. rior pursuant to the Federally Recog- Public Assistance Program means the nized Indian Tribe List Act, 25 U.S.C. FEMA program establish under Sub- 479a, or successor legislation. chapter IV of the Robert T. Stafford Injured Person means an individual, Disaster Relief and Emergency Assist- regardless of citizenship or alien sta- ance Act, as amended, 42 U.S.C. 5121, et tus, an Indian tribe, corporation, tribal seq., which provides grants to States, corporation, partnership, company, as- local governments, Indian tribes and sociation, cooperative, joint venture, private nonprofit organizations for limited liability company, estate, emergency measures and repair, res- trust, county, city, State, school dis- toration and replacement of damaged trict, special district or other non-Fed- facilities. eral entity that suffered Loss resulting Replacement Cost means the cost of from the Cerro Grande Fire and any en- replacing an item that is damaged or tity that provided insurance to an In- destroyed with an item that is com- jured Person. The term Injured Person parable in quality and utility. includes an Indian tribe with respect to Release and Certification Form means a any claim relating to property or nat- document in the manner prescribed by ural resources held in trust for the In- § 104(e) of the CGFAA that all Claim- dian tribe by the United States. Lend- ants who have received or are awarded ers holding mortgages or security in- compensatory damages under the terests on property affected by the CGFAA must execute and return to Cerro Grande fire and lien holders are OCGFC as required by § 295.30(c).

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Subsistence Resources means food and Claimant without financial remunera- other items obtained through hunting, tion. fishing, firewood and other resource Tribal Member means an enrolled gathering, timbering, grazing or agri- member of an Indian Tribe. cultural activities undertaken by the PARTS 296–299 [RESERVED]

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PART 300—DISASTER ration of the requested assistance; the PREPAREDNESS ASSISTANCE recipient agency or organization within the State; the State official respon- Sec. sible for utilizing such assistance; the 300.1 Definitions. manner in which such assistance is to 300.2 Technical assistance. be utilized; and any other information 300.3 Financial assistance. needed for a full understanding of the AUTHORITY: 42 U.S.C. 5121 et seq.; Reorga- need for such requested assistance. nization Plan No. 3 of 1978; E.O. 12148. (b) The request for assistance re- SOURCE: 45 FR 13464, Feb. 29, 1980, unless quires participation by the State in the otherwise noted. technical assistance process. As part of its request for such assistance, the § 300.1 Definitions. State shall agree to facilitate coordi- As used in this part: nation among FEMA, local govern- (a) The Act means the Robert T. Staf- ments, State agencies and the busi- ford Disaster Relief and Emergency As- nesses and industries in need of assist- sistance Act, 42 U.S.C. 5121 et seq. ance in the areas of disaster prepared- (b) Disaster assistance plans means ness and mitigation. those plans which identify tasks needed to deliver disaster assistance and to [54 FR 2129, Jan. 19, 1989] avoid, reduce, or mitigate natural haz- § 300.3 Financial assistance. ards; make assignments to execute those tasks; reflect State authorities (a) The Regional Director may pro- for executing disaster assignments; and vide to States upon written request by provide for adequate training of per- the State Governor or an authorized sonnel in their disaster or mitigation representative, an annual improvement assignments. grant up to $50,000, but not to exceed 50 (c) Mitigation means the process of percent of eligible costs, except where systematically evaluating the nature separate legislation requires or permits and extent of vulnerability to the ef- a waiver of the State’s matching share, fects of natural hazards present in soci- e.g., with respect to ‘‘insular areas’’, as ety and planning and carrying out ac- that term is defined at 48 U.S.C. tions to minimize future vulnerability 1469a(d). The nonFederal share in all to those hazards to the greatest extent cases may exceed the Federal share. practicable. (b) The improvement grant shall be (d) State means any State of the product-oriented; that is, it must United States, the District of Colum- produce something measurable in a bia, Puerto Rico, the Virgin Islands, way that determines specific results, to Guam, American Samoa, Common- substantiate compliance with the grant wealth of the Northern Mariana Is- workplan objectives and to evidence lands, the Trust Territory of the Pa- contribution to the State’s disaster ca- cific Islands, the Federated States of pability. The following list, which is Micronesia, or the Republic of the Mar- neither exhaustive nor ranked in priority shall Islands. order, offers examples of eligible prod- [54 FR 2128, Jan. 19, 1989] ucts under the Disaster Preparedness Improvement Grant Program: § 300.2 Technical assistance. (1) Evaluations of natural hazards Requests for technical assistance and development of the programs and under section 201(b) of the Act shall be actions required to mitigate such haz- made by the Governor or his/her des- ards; ignated representative to the Regional (2) Hazard mitigation activities, in- Director. cluding development of predisaster (a) The request for technical assist- natural hazard mitigation plans, poli- ance shall indicate as specifically as cies, programs and strategies for State- possible the objectives, nature, and du- level multi-hazard mitigation;

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(3) Updates to State disaster assist- PART 302—CIVIL DEFENSE-STATE ance plans, including plans for the In- AND LOCAL EMERGENCY MAN- dividual and Family Grant (IFG) Pro- AGEMENT ASSISTANCE PRO- gram, Public Assistance Program, Haz- GRAM (EMA) ard Mitigation Grant Program, Dis- aster Application Center operations, Sec. damage assessment, etc.; 302.1 Purpose. (4) Handbooks to implement State 302.2 Definitions. disaster assistance program activities; 302.3 Documentation of eligibility. (5) Exercise materials (EXPLAN, sce- 302.4 Merit personnel systems. nario, injects, etc.) to test and exercise 302.5 Allocations and reallocations. procedures for State efforts in disaster 302.6 Fiscal year limitation. response, including provision of indi- 302.7 Use of funds, materials, supplies, equipment, and personnel. vidual and public assistance; 302.8 Waiver of ‘‘single’’ State agency re- (6) Standard operating procedures for quirements. individual State agencies to execute AUTHORITY: 50 U.S.C. app. 2251 et seq. Reor- disaster responsibilities for IFG, crisis ganization Plan No. 3 of 1978; E.O. 12148. counseling, mass care or other functional responsibilities; SOURCE: 48 FR 44211, Sept. 28, 1983, unless otherwise noted. (7) Training for State employees in their responsibilities under the State’s § 302.1 Purpose. disaster assistance plan; (a) The regulations in this part pre- (8) Report of formal analysis of State scribe the requirements applicable to enabling legislation and other authori- the Emergency Management Assist- ties to ensure efficient processing by ance (EMA) program for Federal finan- the State of applications by govern- cial contributions to the States, and mental entities and individuals for through the States to their political Federal disaster relief; subdivisions, for up to one half of the (9) An inventory of updated inven- necessary and essential State and local tory of State/local critical facilities civil defense personnel and administra- (including State/local emergency oper- tive expenses, under section 205 of the ations centers) and their proximity to Federal Civil Defense Act of 1950, as identified hazard areas; amended, and set forth the conditions (10) A tracking system of critical ac- under which such contributions will be tions (identified in postdisaster cri- made. tiques) to be executed by State or local (b) The intent of this program is to governments to improve disaster as- increase civil defense operational capa- sistance capabilities or reduce vulner- bility at the State and local levels of ability to natural hazards. government by providing Federal fi- (11) Plans or procedures for dealing nancial assistance so that personnel with disasters not receiving supple- and other resources can be made avail- mentary Federal assistance; able for essential planning and other administrative functions and activities (12) Damage assessment plans or pro- required in order to accomplish this ob- cedures; jective. (13) Procedures for search and rescue operations; and, § 302.2 Definitions. (14) Disaster accounting procedures. Except as otherwise stated or clearly (c) The State shall provide quarterly apparent by context, the definitions as- financial and performance reports to cribed in this section to each of the the Regional Director. Reporting shall listed terms shall constitute their be by program quarter unless otherwise meaning when used in the regulations agreed to by the Regional Director. in this part. Terms not defined in this [54 FR 2129, Jan. 19, 1989] part shall have the meaning set forth in their definition, if any, in the Fed- eral Civil Defense Act of 1950, as PART 301 [RESERVED] amended.

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(a) Act. The Federal Civil Defense Act gional Offices using FEMA Form 60–8 of 1950, as amended (50 U.S.C. App. 2251 transmitted to FEMA, P.O. Box 8181, et seq.). Washington, DC, 20024. One or more (b) Administrative expenses. Necessary copies of CPG 1–3 have been distributed and essential expenses, other than per- to each State and to each local govern- sonnel expenses as defined in this sec- ment participating in the program tion, of a grantee and its subgrantees under the regulations in this part. Cop- incurred in the administration of their ies of revisions and amendments are civil defense programs, as detailed in distributed to participating govern- CPG 1–3, Federal Assistance Handbook, ments (addressed to the Emergency and in CPG 1–32, FEMA Financial As- Management Coordinator) upon sistance Guidelines. issuance. (c) Annual submission. The State’s an- (f) Comprehensive Cooperative Agree- nual request for participation in the ment (CCA). Provides for each State a contributions program authorized by single vehicle for applying for and re- section 205 of the Act. As specified in CPG 1–3, it includes staffing patterns ceiving financial assistance for several (including job description changes), discrete FEMA programs and for orga- budget requirements, and any amend- nizing and reporting on emergency ments to the State administrative management objectives and accom- plan, a request for funds covering the plishments, particularly under the State and its subgrantees and program funded programs. statements of work for the grantee and (g) Emergency management. Refers to subgrantees under the Comprehensive the activities and measures undertaken Cooperative Agreement. by a State, or one of its political sub- (d) Approval. All approvals by the divisions, to manage a ‘‘civil defense Federal Emergency Management Agen- program’’ as defined and provided for cy (FEMA) as grantor agency required by the Federal Civil Defense Act of under the regulations in this part mean 1950, as amended, including without prior approval in writing signed by an limitation Title V, added by Public authorized FEMA official. When failure Law 96–342, and section 207, added by to obtain prior approval of an action Public Law 97–86. Title V calls for an has not resulted and is not expected to improved civil defense program that result in any failure of compliance includes: with a substantive requirement, and (1) A program structure for the re- approval after the fact is not contrary sources to be used for attack-related to law (or regulation having the effect civil defense; (2) a program structure of law), written approval after the fact for the resources to be used for dis- may be granted at the discretion of the aster-related civil defense; and (3) cri- authorized official. teria and procedures under which those (e) CPG 1–3. Civil Preparedness Guide resources planned for attack-related entitled ‘‘Federal Assistance Hand- civil defense and those planned for dis- book,’’ which sets forth detailed guid- aster-related civil defense can be used ance on procedures that a State and, where applicable, its political subdivi- interchangeably. Thus, emergency sions must follow in order to request fi- management includes ‘‘civil defense’’ nancial assistance from the grantor for and operations in either attack-re- agency. It also sets forth detailed related or disaster-related emergencies. quirements, terms, and conditions Section 207 allows Federal Civil De- upon which financial assistance is fense Act funds to be used for disaster granted under these regulations. In- preparedness and response if such use cluded are amendments by numbered ‘‘is consistent with, contributes to, and changes. References to CPG 1–3 include does not detract from attack-related provisions of any other volumes of the civil defense preparedness.’’ Also 44 CPG series specifically referenced in CFR part 312, Use of Civil Defense Per- CPG 1–3. Copies of the Civil Prepared- sonnel, Materials, and Facilities for ness Guides and the Civil Preparedness Natural Disaster Purposes, provides Circulars may be ordered by FEMA Re- terms and conditions for such use.

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(h) Director. The head of the grantor fice of the President (42 FR 45828) in- agency or another official of the Agen- cluding amendments or revisions as cy authorized in writing by the Direc- published in the FEDERAL REGISTER. tor to act officially on behalf of the Di- (See CPG 1–32, Financial Assistance rector. Guidelines). (i) Forms prescribed by the grantor (p) Emergency Operations Plan (EOP). agency. Forms prescribed by the grant- State or local government Emergency or agency are identified in CPG 1–3 and Operations Plans identify the available may be ordered by FEMA Regional Of- personnel, equipment, facilities, sup- fices using FEMA Form 60–8 trans- plies, and other resources in the juris- mitted to FEMA, P.O. Box 8181, Wash- diction and states the method or ington, DC, 20024. scheme for coordinated actions to be (j) Grantee. A State that has received taken by individuals and government EMA funds as a result of having a services in the event of natural, man- State administrative plan, a statement made and attack-related disasters. of work, and an annual submission, all (q) Personnel expenses. Necessary and approved by the grantor agency as essential civil defense expenses for per- meeting the requirements prescribed in sonnel on the approved staffing pattern this part and in CPG 1–3 for necessary of a grantee or subgrantee (including and essential State and local civil de- but not necessarily limited to salaries, fense personnel and administrative ex- wages, and supplementary compensa- penses for a current Federal fiscal tion and fringe benefits) for such em- year. ployees appointed in accordance with (k) Grantor agency. The Federal State and local government laws and Emergency Management Agency regulations under a system which (FEMA). meets Federal merit system and other (l) Interstate civil defense authority. applicable Federal requirements. Such Any civil defense authority established expenses must be supported by job de- by interstate compact pursuant to sec- scriptions, payrolls, time distribution tion 201(g) of the Act. records, and other documentation as (m) Necessary and essential civil de- detailed in CPG 1–3. Personnel com- fense expenses. Necessary and essential pensation and other costs incurred civil defense expenses are those re- with regard to employees who are not quired for the proper and efficient ad- on the civil defense staff but whose ministration of the civil defense pro- work serves the civil defense agency gram of a grantee or a subgrantee as (e.g., State’s budget and accounting of- described in a State administrative fice) may be charged as civil defense plan and statement of work approved expense to the extent covered therefore by the Regional Director as being con- in a federally approved indirect cost al- sistent with the national plan (i.e., pro- location plan. gram) for civil defense and as meeting (r) Political subdivisions. Local govern- other requirements for civil defense ments, including but not limited to cit- prescribed by or under provisions of the ies, towns, incorporated communities, Act. counties or parishes, and townships. (n) OMB Circular A–87. ‘‘Cost Prin- (s) Regional Director. A FEMA official ciples Applicable to Grants and Con- delegated authority to exercise speci- tracts with State and Local Govern- fied functions as they apply to grantees ments,’’ promulgated by the Office of and subgrantees, within the geo- Management and Budget, Executive Of- graphical area of a particular region as fice of the President, as published in identified (including address) in 44 CFR the FEDERAL REGISTER (46 FR 9548) and part 2. subsequent amendments or revisions. (t) State. Any of the actual States, (See CPG 1–32, Financial Assistance the District of Columbia, the Common- Guidelines). wealth of Puerto Rico, the Common- (o) OMB Circular A–102. ‘‘Uniform Ad- wealth of the Northern Mariana Is- ministrative Requirements for Grants- lands, and the territories of American in-aid to State and Local Govern- Samoa, Guam, and the Virgin Islands. ments,’’ promulgated by the Office of (u) State administrative plan (OMB Management and Budget, Executive Of- 3067–0138). A one-time submission with

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amendments as necessary to keep it being consistent with the national plan current, the plan is a formal descrip- (i.e., program) for civil defense and as tion of each participating State’s total meeting the requirements of the regu- civil defense program and of related lations in this part and CPG 1–3. A State and local laws, executive direc- State may allocate a portion of its tives, rules, and plans and procedures, EMA funds to an Indian tribe as a sub- including personnel standards adminis- grantee where the State has assumed tered on a merit basis, updated emer- jurisdiction pursuant to State law and gency operations plans, travel regula- tribal regulations. tions, indirect cost allocation plans (a) State administrative plans. Every and other information necessary to re- State has a State administrative plan flect the total civil defense program file with FEMA and is required to keep throughout the State. The plan also in- the plan current through amendments cludes without limitation documenta- as necessary. Such plans and amend- tion as to administrative and financial ments shall be reviewed by the Re- systems to assure compliance with uni- gional Director, who will advise the form grant-in-aid administrative re- State in writing as to the effect, if any, quirements for States and subgrantees changes will have on the continued eli- as required under OMB Circular A–102 gibility of the State and its sub- and with other requirements relevant to the eligibility of the State and its grantees. The Regional Director shall political subdivisions for participation not, however, approve any amendments in financial assistance programs for that would result in failure of the plan civil defense purposes. Detailed re- to meet these criteria: quirements are prescribed in CPG 1–3. (1) Provides for and is, pursuant to (Also see § 302.3.) State law, in effect in all political sub- (v) Statement of work. Formal identi- division of the State, mandatory on fication of specific actions to be ac- them, and, unless waived by the Direc- complished by a State and its political tor under section 204 of the Intergov- subdivisions during the fiscal year for ernmental Cooperation Act of 1968 (42 which Federal funds are being re- U.S.C. 4214), administered or supervised quested by the State. Submission is by a single State administrative agen- made to the FEMA Regional Director cy. In demonstrating that the State ad- as part of the CCA Program Narrative. ministrative plan for civil defense is in (w) Subgrantee. A political subdivi- effect in all political subdivisions of sion of a State listed in the State’s an- the State and mandatory on them, the nual submission (or amendments there- plan shall contain references to the ap- to) as approved by the grantor agency plicable State statutes and local ordi- (including any grantor agency-ap- nances, executive orders and direc- proved amendments thereto) as eligible tives, and rules and regulations at the to receive a portion of the Federal fi- State and local level that establish the nancial contribution provided for use civil defense authority, structure, within the State. The term includes In- plans, and procedures, including those dian tribes when the State has assumed relating to emergency operations, jurisdiction pursuant to State law and throughout the State. tribal regulations. (2) Provides assurance of nonFederal [48 FR 44211 Sept. 28, 1983, as amended at 51 contributions at least equal to Federal FR 12520, Apr. 11, 1986] funding for necessary and essential costs eligible under this program from § 302.3 Documentation of eligibility. any source consistent with State law, In order to remain eligible for Fed- but not from another Federal source eral financial contributions under the unless Federal law specifically author- regulations in this part, each State izes the use of funds from such Federal must have on file with FEMA a current source as part of the State’s share. State administrative plan, an emer- (3) Provides for the development of gency operations plan for civil defense, State and local government civil de- and an annual submission (including a fense emergency operations plans pur- statement of work) which have been suant to the standards approved by the approved by the Regional Director as Director.

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(4) Provides for the employment by gated in Attachment I of OMB Circular the State of full-time civil defense di- A–102. rector or deputy director. (11) Provides for the establishment (5) Provides for the establishment and maintenance at the State level and and maintenance of methods of per- by subgrantees of property manage- sonnel administration in public agen- ment systems in accordance with the cies administering or supervising the federally prescribed standards set forth civil defense program, at both the in Attachment N of OMB Circular A– State and local government levels, in 102. conformity with the Standards for a (12) Provides for the establishment Merit System of Personnel Administra- and maintenance at the State level and tion (5 CFR part 900), which incor- by subgrantees of systems for the pro- porate the Intergovernmental Per- curement of supplies, equipment, con- sonnel Act Merit Principles (Pub. L. struction, and other services, with the 91–648, section 2, 84 Stat. 1908) pre- assistance of grant funds, in accord- scribed by the Office of Personnel Man- ance with federally prescribed stand- agement pursuant to section 208 of the ards set forth in Attachment O of OMB Intergovernmental Personnel Act of Circular A–102. 1970, as amended. (13) Provides for disbursement of the (6) Provides for the establishment of appropriate share of the Federal grant safeguards to prohibit State and local to the State’s subgrantees in accord- government employees from using ance with requirements detailed in their positions for a purpose that is or CPG 1–3. gives the appearance of being moti- (14) Provides for the State’s super- vated by desire for private gain for vision and review of the civil defense themselves or others, particularly plans, programs, and operations of its those with whom they have family, subgrantees to obtain conformity and compliance with Federal requirements business, or other ties. and goals set forth or referenced in the (7) Provides that the State shall regulations in this part and as detailed make such reports (including without in CPG 1–3. limitation financial reports) in such (15) Contains a Statement of Compli- form and content as the Director may ance with grantor agency regulations require. relating to nondiscrimination in FEMA (8) Provides that the State and all programs (see 44 CFR part 7). subgrantees shall retain, in accordance (16) Provides for timely submission with OMB Circular A–102, and make to the appropriate Regional Director of available to duly authorized represent- amendments to the administrative atives of the Director and the U.S. plan as necessary to reflect the current Comptroller General all books, records, laws, regulation, criteria, plans, meth- and papers pertinent to the grant pro- ods, practices, and procedures for ad- gram for the purpose of making audits, ministration of the State’s civil de- examinations, excerpts, and transcripts fense program and those of its sub- necessary to conduct audits. grantees. (9) Provides for establishment and (17) Conforms to other Federal stand- maintenance of a financial manage- ards and requirements set forth or ref- ment system of grant-supported activi- erenced in the regulations in this part ties of the State and all subgrantees and as detailed in CPG 1–3. which meets the federally prescribed (18) Provides for performance of inde- standards promulgated in ‘‘Standards pendent organizationwide audits by for Grantee Financial Management State and local governments that re- Systems,’’ Attachment G of OMB Cir- ceive EMA funds of their financial op- cular A–102. erations, including compliance with (10) Provides for establishment and certain provisions of Federal law and maintenance of procedures for moni- regulation. toring and reporting grant program (b) Emergency Operations Plans and projet performance of the State (EOP’s). (1) Each participating State and its subgrantees which meet the shall have an EOP approved by the Re- federally prescribed standards promul- gional Director and conforming with

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the requirements for plan content set notify the State in writing. The State forth in this part and in CPG 1–3, and administrative plan is a one-time sub- in CPG 1–8 ‘‘Guide for the Development mission. Unless amendments are nec- of State and Local Emergency Oper- essary to meet Federal standards pre- ations Plans’’ and in CPG 1–8A, ‘‘Guide scribed in the regulations in this part for the Review of State and Local or in CPG 1–3 or to reflect changes in Emergency Operations Plans,’’ which the State’s administrative structure, plan must provide for coordinated ac- procedures, criteria, or activities, or tions to be undertaken throughout the unless a portion were conditionally ap- State in the event of attack and in the proved by the Regional Director as pro- event of other disasters. vided for in paragraph (e) of this sec- (2) Each subgrantee jurisdiction shall tion, no approval regarding the State have a local EOP which conforms with administrative plan will be required for the requirements for plan content as a State which participated for the pre- set forth in CPG 1–3 and CPG 1–8 and ceding Federal fiscal year. CPG 1–8A, and which has been approved (e) Agreement for contribution. Ap- by the local chief executive or other proval pursuant to procedures and cri- authorized official and accepted by the teria described in this part and in CPG Governor or other authorized State of- 1–3 of an annual submission of a State ficial as being consistent with the whose administrative plan is approved State’s EOP. and current shall constitute agreement (c) Each State Annual submission. between FEMA and the State as grant- should include in its annual CCA appli- ee for its participation and that of its cation the amount of EMA funding re- subgrantees in this program during the quested (see § 302.5(c)). In order to par- Federal fiscal year covered by the ap- ticipate for a particular Federal fiscal proved annual submission on the basis year, however, each State must also, of the requirements and conditions pre- within 60 days of receipt or notice of a scribed in this part, in CPG 1–3, and in formal allocation made pursuant to the other federally promulgated criteria criteria set forth in § 302.5 and in ac- referenced in this part. Refusal or fail- cordance with procedures and criteria ure to comply with such requirements specified in CPG 1–3, aubmit to the Re- gional Director an approvable annual and conditions may result in the grant- submission which includes: or agency cancelling, terminating, or (1) A request or amended request for suspending the grant, in whole or in a financial contribution from FEMA in part, and refraining from extending a specified amount for civil defense any further assistance to the grantee personnel and administrative expenses; or subgrantee until satisfactory assur- (see § 302.5 (d) through (h)). ance of future compliance has been re- (2) Unless previously submitted for ceived. the particular Federal fiscal year, a (f) Disapproval or conditional approval. statement of work for the State and If a State’s administrative plan or an- proposed subgrantees or amendments nual submission is disapproved, the Re- to a statement of work previously sub- gional Director will advise the State in mitted under the CCA. writing, including the reasons for such (3) Staffing patterns (including new disapproval and the revisions required or revised job descriptions not pre- for approval. The State shall have 30 viously submitted) on forms prescribed days from date of such notification in by FEMA for the civil defense organi- which to submit its revisions. In the zations of the State and proposed sub- event more time is required in which to grantees; and place the revisions into effect, the Re- (4) Any amendments to the State ad- gional Director may conditionally ap- ministrative plan required to reflect prove the State administrative plan or current status. annual submission subject to the speci- (d) Approval of State administrative fied conditions to be met within a spec- plan and annual submission. If the State ified time, as agreed by the State and administrative plan and the annual FEMA. submission are determined to be ap- (g) Appeals. (1) Appeal from a Re- provable, the Regional Director will so gional Director’s disapproval of a State

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administrative plan or an annual sub- fice of Personnel Management (OPM). mission or other final action as un- OPM has promulgated Standards for a justified under the criteria in CPG 1–3 System of Personnel Administration (5 may be made by letter to the Associate CFR part 900) which prescribe intergov- Director, State and Local Programs ernmental personnel standards on a and Support (FEMA), signed by an au- merit basis as a condition of eligibility thorized State official and submitted in the administration of grant pro- through the Regional Director. Such grams. OPM has approved FEMA adop- appeal letter shall be mailed or other- tion of these standards by the regula- wise transmitted so as to reach the Re- tions in this part. gional Director within 30 days after re- (b) Standard. Participation by each ceipt of the notification of disapproval. grantee and each subgrantee under the Failure to file its appeal on time may program covered in this part is subject result in withdrawal of the State’s al- to compliance with the following con- location and the proposed funding ditions regarding merit personnel sys- being reallocated by the Director. tems: (2) A local jurisdiction that regards the final action on its subgrant made Methods of personnel administration will by a State as unjustified under the cri- be established and maintained in public teria in CPG 1–3 may submit an appeal agencies administering or supervising the through the State to the Regional Di- administration of the civil defense program rector. Upon receipt of such an appeal, in conformity with the Standards for a Merit the Regional Director shall forward the System of Personnel Administration 5 CFR part 900, which incorporate the Intergovern- letter, together with all available per- mental Personnel Act Merit Principles (Pub. tinent documentation from the Re- L. 91–648, section 2, 84 Stat. 1909) prescribed gional Director’s files and any addi- by the Office of Personnel Management pur- tional documentation submitted by the suant to section 208 of the Intergovern- local jurisdiction in support of its ap- mental Personnel Act of 1970 as amended. peal, to the Associate Director, State and Local Programs and Support, for Section 302.3(a)(5) of this part provides, review and determination. The appeal in part, that State administrative shall contain all of the exceptions plans that fail to provide for fulfilling being taken by the State or local juris- this condition are not approvable. diction, and no exceptions will be determined piecemeal. § 302.5 Allocations and reallocations. (3) No portion of the appellant (a) The Director shall allocate the State’s allocation shall be reallocated entire amount of funds available for by FEMA, and no portion of a local ju- the purposes of this program from the risdiction’s allocation shall be reallo- appropriation for each fiscal year. The cated by the State, pending determina- allocation made to each State rep- tion of its appeal by the Director. The resents the total amount of funds State and local jurisdiction (if applica- available to pay the Federal share of ble) will be notified in writing of the necessary and essential civil defense Director’s decision, including a state- personnel and administrative expenses ment of the reasons therefor. of the State and its participating sub- (Approved by Office of Management and divisions during the fiscal year. Budget under control number 3067–0138) (b) The first calculation for devel- [48 FR 44211 Sept. 28, 1983, as amended at 51 oping the allocation for each State will FR 12520, Apr. 11, 1986] be a formula distribution in accordance with section 205(d) of the Act, made by § 302.4 Merit personnel systems. applying the following percentages to (a) Background. Section 208 of the the total sum of Emergency Manage- Intergovernmental Personnel Act, as ment Assistance in the President’s amended (42 U.S.C. 4728) authorizes budget request to Congress: Federal agencies to require, as a condi- (1) Fifty (50) percent will be allocated tion of participation in Federal assist- on the basis of the prior-year State al- ance programs, systems of a personnel locations, in fulfilment of the statu- administration consistent with per- tory requirement to give due regard to sonnel standards prescribed by the Of- ‘‘the relative state of development of

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civil defense readiness of the State’’ State and local personnel and adminis- (State and local levels). trative expenses for the fiscal year. (2) Thirty-three (33) percent will be (e) The formula distribution shall be allocated on the basis of the ratio of reviewed and evaluated, and adjusted the State’s population to the national as appropriate, by the Director, based population (50 States, District of Co- on the current situation in each State, lumbia, and Puerto Rico), in fulfilment the requests of all States, and rec- of the statutory requirements to give ommendations by the Regional Direc- due regard to ‘‘population’’ and to ‘‘the tors. The Director will consider the fol- criticality of target and support areas lowing five factors: and the areas which may be affected by (1) The ability of the State and its natural disasters with respect to the subgrantees to effectively expend such development of the total civil defense an amount for necessary and essential readiness of the Nation.’’ civil defense personnel and administra- (3) Fifteen (15) percent will be divided tive purposes. Past performance is a equally among the 50 States, the Dis- factor in this determination. trict of Columbia, and Puerto Rico. (2) Special circumstances existing in (4) In consonance with the statutory the State at the time of allocating provision allowing the Director to pre- which require unusual expenditures for scribe other factors concerning the civil defense. State allocations, the remaining two (3) Conditions peculiar to the State (2) percent will be held temporarily in which make strict application of math- reserve, to be used first to fund the ematical formula inequitable either to four territories of the Virgin Islands, that State or other States. American Samoa, Guam, and the Com- (4) The relative cost of civil defense monwealth of the Northern Mariana Is- personnel and administrative services lands. Conditions peculiar to those in that State; that is, whether such areas make strict application of the costs are considerably above or below mathematical formula in § 302.5(b) in- the national average for similar serv- equitable. Therefore, the Director will ices and expenses. consider prior-year allocations, per- (5) Substantial changes in the civil centage of total United States popu- defense readiness of the State not relation, and the factors set out in flected by its recent civil defense ex- § 302.5(e) (1), (2), (4), and (5) in deter- penditures. mining their allocations. The remain- (f) In September of each year, based ing balance of the reserve fund will on applications received and rec- then be used to restore any State ommendations by the Regional Direc- which would receive less by formula tors, the Director will make a ten- share than its formula share for the tative allocation to the States. This previous fiscal year, provided that the will include adjustments for States reserve balance is sufficient to do this that have indicated they will not be for all such States. Any remaining bal- using the total of the formula distribu- ance after this has been done will con- tion amount. States can then revise stitute a supplemental fund from which their earlier plans and applications to the Director will consider State re- more nearly reflect the level of funding quests for additional funding and the expected to become available. needs of any interstate civil defense (g) A State may provide to the Re- authorities. gional Director a preliminary annual (c) For initial planning purposes submission in an amount not to exceed only, each State will then be informed its tentative allocation. of the figure by the Regional Director. (h) By September 30 (or as soon The State will base its initial EMA ap- thereafter as feasible), the Director plication upon that figure but may re- will make a formal allocation based on, quest a smaller amount or with appro- or subject to, appropriation by Con- priate justification a larger amount. gress and allotment of the funds. This (d) The amount requested by the allocation for each State may include State shall not exceed 50 percent of its any additional amounts from the re- estimate of necessary and essential serve portion of the EMA funds, and

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shall be in accordance with the regula- leased to headquarters for reallocation tions in this part and CPG 1–3. on a national basis. In addition, the (i) Upon the appropriation becoming Regional Director may from time to available, and if requested by a State, time reallocate the amounts released the Regional Director may approve by a State from its allocation as no such State’s preliminary annual sub- longer being required for utilization in mission (if found to meet all require- accordance with an approved annual ments in this part and CPG 1–3) in an submission and award document. appropriate amount which does not ex- (m) Immediate notice to the head- ceed the amount of the State’s share of quarters EMA Program Manager of the Director’s formal allocation of the State reallocations is required in the Federal appropriation. An award docu- form of copies of EMA-approved An- ment obligating Federal funds on the nual Submission amendment docu- basis of the approved preliminary an- ments, accompanied by copies of as- nual submission may be executed in ac- sistance award/amendment documents cordance with the provisions of CPG 1– signed by regional and State author- 3. ized officials of both the releasing and (j) Based on and within 60 days after recipient States. notification of its formal allocation, (n) There is no dollar ceiling on the each State must provide to the Re- amount of funds that may be reallo- gional Director a final annual submis- cated among States in a region. How- sion which meets all requirements in ever, at any time that there are funds this part and CPG 1–3. If no changes are surplus to the eligible needs of the necessary, a State and the Regional Di- States within a region, those funds rector may adopt in writing the State’s should be promptly released to head- preliminary annual submission as its quarters for reallocation to other final annual submission. If no award States with unfunded additional re- document was executed based on a quirements. State’s preliminary annual submission, (o) On July 1 of each fiscal year, the such document will be executed on the authority to reallocate EMA funds basis of that State’s approved final an- shall revert to the Director. In addi- nual submission. tion, any excess EMA funds available (k) With regard to any State whose on that date, or that become available award document was executed pursu- during the remainder of the fiscal year, ant to a preliminary annual submission are to be promptly released to head- covering only part of its formal alloca- quarters for reallocation by the Direc- tion, upon approval (by the Regional tor. Director) of the final annual submission (including a revised statement of [48 FR 44211 Sept. 28, 1983, as amended at 51 work supporting the additional funding FR 12521, Apr. 11, 1986; 51 FR 43924, Dec. 5, request) the Regional Director shall 1986; 56 FR 29905, July 1, 1991] execute an amended award document obligating the balance of such State’s § 302.6 Fiscal year limitation. formal allocation. Federal appropriations for the pro- (l) After being advised of its annual gram covered by the regulations in this formal allocation, if a State fails to part are limited for obligation on a submit, within 60 days, an approvable Federal fiscal year basis. Each annual annual submission in the amount of its submission (or amendment thereto) allocation, the Regional Director may which results in a change in scope (e.g., reallocate the unused portion to other an increase in the amount of funds States in the region in such amounts other than a cost overrun) must be ap- as in his/her judgment will best assure proved during the Federal Fiscal year adequate development of the civil de- for which the funds to be charged were fense capability of the Nation. The ex- appropriated. Valid expenses incurred ception to this authority is in the by a State or its subgrantee during the event a State, or local jurisdiction, re- fiscal year but before obligation by fuses to participate in attack prepared- FEMA of funds under this program ness activities. EMA funds withheld or may qualify for payment of a Federal returned for that reason are to be re- financial contribution out of the funds

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subsequently appropriated for that fis- U.S.C. app. 2251 et seq.) will not be en- cal year. dangered by the use of such other State structure or arrangements. Attach- § 302.7 Use of funds, materials, sup- ment D of OMB Circular A–102 requires plies, equipment, and personnel. that such requests be given expeditious Financial contributions provided handling by the grantor agency and under the authority of section 205 of that, whenever possible, an affirmative the Act are provided for necessary and response be made. essential State and local civil defense personnel and administrative expenses [48 FR 44211 Sept. 28, 1983, as amended at 51 as prescribed by the regulations in this FR 12521, Apr. 11, 1986] part and the provisions of CPG 1–3, and are obligated only on the basis of docu- PART 303 [RESERVED] mentation justifying such need. (a) Emergencies. In addition to such PART 304—CONSOLIDATED civil defense use, Federal funds obli- GRANTS TO INSULAR AREAS gated under a grantee’s approved annual submission may be used, to the Sec. extent and under such terms and condi- 304.1 Purpose. tions as prescribed by the Director in 304.2 Definitions. CPG 1–3, for providing emergency as- 304.3 Conditions for a consolidated grant. sistance, including the use of civil de- 304.4 Allocations. fense personnel, organizational equip- 304.5 Audits and records. ment, materials, and facilities, in preparation for and response to actual at- AUTHORITY: 50 U.S.C. app. 2251 et seq.; Reor- tack-related events or natural disas- ganization Plan No. 3 of 1978; E.O. 12148. ters (including manmade SOURCE: 43 FR 39776, Sept. 7, 1978, unless catastrophies). otherwise noted. Redesignated at 44 FR 56173, (b) Limitations. Section 207 of the Act Sept. 28, 1979. allows use of funds under the Act, including those for this program, for nat- § 304.1 Purpose. ural (including manmade) disaster pre- The purpose of the regulations in this paredness and response purposes only part is to prescribe the basis under to the extent that such use is con- which the Federal Emergency Manage- sistent with, contributes to, and does ment Agency (FEMA) contributes Fed- not detract from attack-related pre- eral funds to an insular area through a paredness (reference 44 CFR part 312). consolidated grant.

§ 302.8 Waiver of ‘‘single’’ State agency § 304.2 Definitions. requirements. Section 205 of the Act requires that Except as otherwise stated when used plans for civil defense of the United in the regulations of this part, the States be administered or supervised meaning of the listed terms are as fol- by a single State agency (50 U.S.C. lows: App. 2286). Notwithstanding such law, (a) Insular areas. The Virgin Islands, section 204 of the Intergovernmental Guam, American Samoa, and the Gov- Cooperation Act of 1968 (42 U.S.C. 4214) ernment of the Northern Mariana Is- provides authority for the Director as lands. head of the grantor agency, upon the (b) Consolidated grant. A grant by State’s request, to waive the single FEMA to any insular area through an State agency requirement and to ap- allocation which combines funds for prove other State administrative struc- the State and local management pro- ture or arrangements, upon adequate gram and the State and local mainte- showing that the requirement prevents nance and services program for a single the establishment of the most effective Federal fiscal year. and efficient organizational arrange- (c) FEMA guidance material. FEMA ments within the State government. regulations (44 CFR chapter I), Civil First, however, the Director must have Preparedness Guide (CPG) 1–3, and found that the objectives of the Act (50 Civil Preparedness Circulars (CPC) as

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presently providing or hereafter a period of three years from submission amended or revised. of final billing and shall be available to [43 FR 39776, Sept. 7, 1978. Redesignated at 44 the Director, FEMA, and the Comp- FR 56173, Sept. 28, 1979, as amended at 48 FR troller General of the United States, 44554, Sept. 29, 1983] all as prescribed in FEMA guidance material and in accordance with OMB § 304.3 Conditions for a consolidated Circular A–102 (42 FR 45828–45891). grant. (a) In order to participate, an insular PARTS 305–311 [RESERVED] area must submit a (one-time) administrative plan as provided for in FEMA guidance material (to be maintained in PART 312—USE OF CIVIL DEFENSE current status) and must sign a (one- PERSONNEL, MATERIALS, AND time) civil rights assurance and a (one- FACILITIES FOR NATURAL DIS- time) grant agreement agreeing to ASTER PURPOSES comply with Federal requirements. (b) An insular area need not submit Sec. an application for a consolidated grant, 312.1 Purpose. but must submit an annual program 312.2 Definitions. paper which meets the requirements 312.3 Policy. prescribed in FEMA guidance material. 312.4 General. (c) Funds made available under a 312.5 Personnel. consolidated grant must be expended 312.6 Materials and facilities. for State and local management program expenses and/or State and local AUTHORITY: Sec. 803(a)(3) Pub. L. 97–86; sec. 401, Federal Civil Defense Act of 1950, as maintenance and services program ex- amended, 50 U.S.C. app. 2253; Reorganization penses as defined and described in Plan No. 3 of 1978; 3 CFR, 1978 Comp., p. 329; FEMA guidance material. Each partici- and E.O. 12148 of July 20, 1979, 44 FR 43239. pating insular area will determine the proportion in which funds granted to it SOURCE: 47 FR 43381, Oct. 1, 1982, unless otherwise noted. will be allocated between the two programs. § 312.1 Purpose. (d) Participating insular areas need not provide matching funds for consoli- The purpose of the regulations in this dated grants. part is to prescribe the terms and conditions under which civil defense per- [43 FR 39776, Sept. 7, 1978. Redesignated at 44 sonnel, materials, and facilities, sup- FR 56173, Sept. 28, 1979, as amended at 50 FR 40007, Oct. 1, 1985] ported in whole or in part through contributions under the Federal Civil De- § 304.4 Allocations. fense Act of 1950, as amended, 50 U.S.C. For each Federal fiscal year con- App. 2251, et seq., hereinafter referred cerned, the Director, FEMA, shall allo- to as ‘‘the Act’’, may be used for nat- cate to each participating insular area ural disasters, to the extent that such an amount not less than the sum of usage is consistent with, contributes grants for the two programs which the to, and does not detract from attack- Director, FEMA, has determined such related civil defense preparedness. insular area would otherwise be entitled to receive for such fiscal year. § 312.2 Definitions. Except as otherwise stated, when § 304.5 Audits and records. used in the regulations in this part, the (a) Audits. FEMA will maintain ade- meaning of the listed terms are as fol- quate auditing, accounting and review lows: procedures as outlined in FEMA guid- (a) The term attack means any attack ance material and OMB Circulars No. or series of attacks by an enemy of the A–73 and A–102. United States causing, or which may (b) Records. Financial records, sup- cause, substantial damage or injury to porting documents, statistical records, civilian property or persons in the and all other records pertinent to a United States in any manner by sabo- consolidated grant shall be retained for tage or by use of bombs, shellfire, or

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atomic-radiological, chemical, bac- ices; monitoring for specific hazards of teriological, or biological means or special weapons; unexploded bomb re- other weapons or processes; connaissance; essential debris clear- (b) The term natural disaster means ance; emergency welfare measures; and any hurricane, tornado, storm, flood, immediately essential emergency re- high water, wind-driven water, tidal pair or restoration of damaged vital fa- wave, tsunami, earthquake, volcanic cilities); eruption, landslide, mudslide, snow- (d) The word materials shall include storm, drought, fire, or other catas- raw materials, supplies, medicines, trophe in any part of the United States equipment, component parts and tech- which causes, or which may cause, sub- nical information and processes nec- stantial damage or injury to civilian essary for civil defense; property or persons and, for the pur- (e) The word facilities, except as oth- poses of the Act, any explosion, civil erwise provided herein, shall include disturbance, or any other manmade ca- buildings, shelters, utilities, and land; tastrophe shall be deemed to be a nat- (f) The term United States or States ural disaster; shall include the several States, the (c) The term civil defense means all District of Columbia, the Territories, those activities and measures designed and the possessions of the United or undertaken (1) to minimize the ef- States; fects upon the civilian population (g) The term political subdivisions caused, or which would be caused, by shall include local governments, in- an attack upon the United States, or cluding but not limited to cities, by natural disaster, (2) to deal with the towns, incorporated communities, immediate emergency conditions counties, parishes, and townships; and which would be created by any such at- (h) The term CPG 1–3 refers to tack, or natural disaster, and (3) to ef- FEMA’s ‘‘Federal Assistance Hand- fectuate emergency repairs to, or the book’’ promulgated as Civil Prepared- emergency restoration of vital utilities ness Guide (CPG) 1–3, as amended, by and facilities destroyed or damaged by numbered changes thereto and by Civil any such attack or natural disaster. Preparedness Circulars (CPC). CPG 1–3 Such term shall include, but shall not sets forth detailed guidance on proce- be limited to, (i) measures to be taken dures which a State and, where appli- in preparation for anticipated attack cable, its political subdivisions must or natural disaster (including the es- follow in order to request financial assistance from FEMA. It also sets forth tablishment of appropriate organiza- detailed requirements, terms, and con- tions, operational plans, and sup- ditions upon which financial assistance porting agreements; the recruitment is granted. and training of personnel; the conduct of research; the procurement and (Reorganization Plan No. 3 of 1978, E.O. 12127 stockpiling of necessary materials and and E.O. 12148) supplies; the provision of suitable [47 FR 43381, Oct. 1, 1982, as amended at 48 FR warning systems; the construction or 44545, Sept. 29, 1983] preparation of shelter areas, and control centers; and, when appropriate, § 312.3 Policy. the non-military evacuation of civil (a) It is the policy of FEMA to pro- population); (ii) measures to be taken vide a means of assistance to States during attack or natural disaster (in- and their political subdivisions in their cluding the enforcement of passive de- carrying out responsibilities to allevi- fense regulations prescribed by duly es- ate the suffering and damage from at- tablished military or civil authorities; tack-related or natural disasters by: the evacuation of personnel to shelter (1) Providing contributions for per- areas; the control of traffic and panic; sonnel, equipment, materials and fa- and the control and use of lighting and cilities that may be used in preparing civil communications); and (iii) meas- for or responding to disasters, provided ures to be taken following attack or that the use of such funds for natural natural disaster (including activities disasters is consistent with, contrib- for firefighting; rescue, emergency utes to, and does not detract from at- medical, health and sanitation serv- tack-related civil defense preparedness.

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(2) Encouraging the development of (d) State and local officials may use comprehensive disaster preparedness personnel, equipment, and facilities for and assistance plans, programs, capa- natural disasters outside the physical bilities, and organizations by the State boundaries of the jurisdiction and and its political subdivisions. under the conditions stated within this (3) Assisting in achieving greater co- regulation. ordination of disaster preparation and (e) Specific criteria relating to the response programs. preparedness and response activities (4) Providing technical advice and are given in §§ 312.5 and 312.6 of this guidance to States and their political part. subdivisions for organizing and preparing to meet the effects of disasters. § 312.5 Personnel. (b) These regulations are not to be FEMA contributes to the develop- interpreted as authorizing States and ment and support of emergency man- their political subdivisions to request agement organizations in the States or receive additional assistance relat- and their political subdivisions, and to ing to particular disaster incidents. the development, operation, and maintenance of specific programs, through § 312.4 General. payment of salaries and benefits of (a) The Director, FEMA, will provide State and local civil defense staff, and statements to States and their polit- the payment of administrative ex- ical subdivisions concerning Agency penses and travel, not to exceed 50 permission and goals, Annual Program cent. FEMA also provides contribu- Emphasis, and other directions, in- tions for training and education ex- structions, and technical guidance penses. The following use of such per- which together specify preparedness sonnel for natural disaster purposes is and response activities for both attack- allowable provided that such usage is related and natural disasters. consistent with, contributes to, and (b) States and their political subdivi- does not detract from attack-related sions may apply to FEMA for financial civil defense preparedness: assistance under the Act in a manner (a) In developing, maintaining, test- prescribed by Federal Regulations gov- ing and exercising plans, systems, and erning grants and cooperative agree- procedures for the protection of people ments. Such applications must be com- and property from the effects of at- patible with FEMA’s goals and require- tack-related disasters, States and their ments described in paragraph (a) of political subdivisions may include and this section. provide for natural disasters. (c) Financial contributions to States (b) Personnel supported in part and their political subdivisions are through contributions under the Act made by FEMA based on approval of may be assigned responsibilities for the activities and projects described in preparation for and response to natural the Annual Program Paper, and/or disasters in any specific emergency oc- Comprehensive Cooperative Agree- curring in a State or its political sub- ment, and which are in conformance divisions as determined by the respon- with provisions of CPG 1–3, and appli- sible State or local officials, respec- cable FEMA regulations set forth in tively. chapter 1 of this title 44, chapter 1, sub- (c) Personnel supported in whole chapter E, of the Code of Federal Regu- under the Act, may be assigned to lations. Financial contributions will emergency response operations for 15 not be made unless substantive activi- days at the discretion of State offi- ties and projects in preparation for and cials; approval of the FEMA Regional response to attack-related disasters are Director is required for the use of these identified, and progress is indicated in personnel in excess of 15 days. An as- the submissions, and recorded in pro- signment to emergency response oper- gram reporting systems. The presence ations does not preclude the accom- of unavoidable circumstances, and the plishment of program work and objec- good faith effort of the applicant, will tives. Failure to accomplish such work be considered if certain objectives are may subject the State to the with- not met. holding of funds contributed under the

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Act, or to collection of funds already 321.6 Participation of small business. obligated, not to exceed the estimated 321.7 [Reserved] cost of the work not performed, as de- 321.8 Reports. termined by the Regional Director. AUTHORITY: National Security Act of 1947, (d) In the event of an emergency or as amended 50 U.S.C. 404; Defense Production major disaster declared under the Dis- Act of 1950, as amended; 50 U.S.C. app. 2061 et aster Relief Act of 1974, as amended, seq.; Reorganization Plan No. 3 of 1978, 3 personnel will not be provided over- CFR, 1978 Comp., p. 329; E.O. 12148 (44 FR time compensation and expenses under 43239). the Act. SOURCE: 45 FR 44576, July 1, 1980, unless otherwise noted. § 312.6 Materials and facilities. FEMA also contributes to the devel- § 321.1 General. opment and support of emergency man- A sustained state of mobilization agement in the States and their polit- production readiness is necessary to ical subdivisions, and to the develop- place the United States in a defense ment, operation, and maintenance of posture which will enable the nation to specific programs, through providing defend itself against aggression in pe- certain materials and facilities. The ripheral conflicts or general war in- following may be used for natural dis- volving nuclear attacks on this coun- aster purposes provided that such try. Therefore, the facilities, machine usage is consistent with, contributes tools, production equipment, and to, and does not detract from attack- skilled workers necessary to produce related civil defense preparedness: (a) Materials provided and main- the wartime requirements of the De- tained through contributions under the partment of Defense, Department of Act. Energy, and the Maritime Administra- (b) Technical information, guidance tion shall be maintained in a state of through which technical assistance is readiness which will facilitate their provided, and training courses, may immediate use or conversion in time of contain examples, illustrations, discus- emergency, with especial emphasis on sion, suggested applications and uses of measures to maximize the probability material. of continued post-attack production of (c) Equipment loaned under provi- those items judged to be vital to sur- sions of the Contributions Project vival and victory. Loan Program. (d) Facilities, such as Emergency Op- § 321.2 Selection of the mobilization base. erating Centers, provided and maintained through contributions under the (a) The Department of Defense shall Act. select, for its mobilization base, facili- (e) Equipment loaned or granted to ties which produce or are capable of the States for civil defense purposes producing critically important mili- (e.g., radiological instruments, shelter tary items or components (military supplies). class A components used entirely in the production, maintenance, or repair PARTS 313–320 [RESERVED] of military items) which meet one of the following: PART 321—MAINTENANCE OF THE (1) Those items which would be so ur- MOBILIZATION BASE (DEPART- gent to the defense of this country that utmost effort must be exerted to MENT OF DEFENSE, DEPARTMENT produce them even in case of general OF ENERGY, MARITIME ADMINIS- war involving severe damage to the fa- TRATION) cilities necessary to produce these items and the components thereof. Sec. (2) Those items essential to survival 321.1 General. 321.2 Selection of the mobilization base. and retaliation, maintenance of health, 321.3 Maintaining the mobilization base. or combat efficiency required to sup- 321.4 Achieving production readiness. port peripheral war and which meet 321.5 Retention of industrial facilities. one or more of the following criteria:

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(i) Items requiring a long lead-time (2) Machine tools and production or long manufacturing cycle. equipment will be installed in these fa- (ii) Items currently not in production cilities to the extent found necessary or which are required in quantities far by the procuring agency. in excess of peacetime production. (3) Develop and maintain plans for al- (iii) Items requiring the conversion ternate production capacity in case of an industry or a number of plants disaster destroys current facilities, within an industry. such capacity to be located to the max- (iv) Items requiring materials or imum extent possible away from highly manufacturing processes essentially concentrated industrial areas and different from those in current use. major military installations. (v) Items for which industry does not (b) Other facilities selected as part of have production experience. the mobilization base, shall be main- Paragraph (a)(2) of this section is in- tained to the fullest extent possible. clusive of the Department of Defense (1) Procurement agencies shall inte- Preferential Planning List of End grate current procurement with their Items. industrial mobilization plans to the (b) In selecting facilities for the De- greatest possible extent with the objec- partment of Defense mobilization base, tive of supporting the mobilization consideration shall be given to their base within authorities and funds vulnerability to nuclear attack, with available. particular attention to the possibility (2) Data assembled on essential mobi- of (1) minimizing vulnerability of fa- lization suppliers by the industrial mo- cilities producing ‘‘urgent’’ items bilization planning of these agencies under paragraph (a)(1) of this section, shall be used in planning current pro- including the need for dispersal, procurement. The policy of using contrac- tective construction, and special secu- tors and facilities essential to the mo- rity measures to safeguard against sab- bilization base is considered to be in otage of clandestine attack, and (2) re- the best interest of the Government. ducing concentration of uncommon (3) Planned producers that are critical production facilities so that a deemed to be a part of the mobilization productive segment of each critical in- base will be invited to participate in dustry would be likely to survive a nu- appropriate current procurement. clear attack. (4) Upon expiration of current pro- (c) The Department of Energy and curement contracts in a facility, the the Maritime Administration, in co- procuring agency shall take such of the operation with the Federal Emergency following actions as are compatible Management Agency, shall determine with its plans for maintaining a state the items and facilities which meet the of readiness: above criteria for their respective pro- (i) Government-owned facilities and grams for maintaining the mobiliza- tools. Within the limitations that may tion base. be imposed by Congressional appropriations, place government-owned facili- § 321.3 Maintaining the mobilization ties and tools in standby status and es- base. tablish provisions for their adequate (a) Facilities selected to produce maintenance. This does not preclude ‘‘urgent’’ items shall be maintained the use of government-owned produc- within limits of existing procurement tion equipment, on a loan basis, to en- authority and funds available by the able the military departments to meet Department of Defense, the Depart- current production schedules, as pro- ment of Energy, and the Maritime Ad- vided in DMO–VII–4, Amendment 1. ministration in the following manners (ii) Privately-owned facilities and gov- to the maximum practical degree: ernment-owned tools. (A) Arrange with (1) Current procurement shall be management of privately-owned facili- placed in these facilities to the extent ties, wherever possible, to place gov- which will maintain them in a state of ernment-owned tools and production readiness compatible with the plans of equipment in the status provided by the procuring agency. DMO–VII–4, as amended, taking into

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account the desirability of safe loca- (iii) Protection of production facili- tion. ties from enemy sabotage through ade- (B) Arrange with management, on a quate physical security measures. voluntary basis, to keep a group of key (iv) Protection of personnel from managers, engineers, and skilled work- widespread radiological fallout through ers familiar with the items planned for provisions for decontamination and mobilization production. shelter. (C) Determine the gaps which exist in government-owned packages of tools § 321.5 Retention of industrial facilities. and production equipment needed to produce mobilization requirements in (a) Industrial properties, owned by privately-owned plants. Within the the Department of Defense, the Depart- limit of fund availability, plan the pro- ment of Energy, and the Maritime Ad- curement of such tools and equipment ministration, shall be retained in the with priority being given to long lead- Industrial reserves (National Industrial time tools and equipment or those not Reserve, Departmental Industrial Re- used in general manufacturing. These serve for the Department of Defense) of tools and equipment, when procured, the department and agencies to the ex- should be placed in the status provided tent the capacity of said reserves is by DMO–VII–4, as amended, taking into necessary for the production of defense account the desirability of safe loca- or defense-supporting end items, mate- tions. rials or components in a mobilization period. (D) Determine which government- (b) Each idle plant in the reserves owned tools and equipment have be- shall be reviewed annually by the come obsolete, or which would not be heads of the respective agencies to de- used in event of mobilization, and plan termine if the capacity of the plant for their disposal in accordance with continues necessary for mobilization the provisions of DMO–VII–4, as amend- purposes. ed. (c) Upon the determination by the § 321.4 Achieving production readi- head of the agency that the capacity of ness. a plant is excess to the mobilization requirements of the agency immediate (a) In order to achieve a capability steps will be taken to dispose of the for maximum production of ‘‘urgent’’ plant through existing government items during the initial phase of war, channels for surplus disposal. The Fed- the following readiness measures shall eral Emergency Management Agency be taken where advisable for facilities shall be informed by General Services producing such items: Administration of each proposed sur- (1) Establishment of emergency pro- plus action prior to final determina- duction schedules. tion. (2) Development of a production capability which would function under § 321.6 Participation of small business. widespread disruption and damage im- The agencies concerned with the posed by enemy attack, including, order shall, in all of their programs for where necessary: maintaining the mobilization base, be (i) Maintenance of an increased in- mindful of the national policy to pro- ventory of finished components and re- tect the interests of small business, lated production supplies at assembly and to assure the maximum participa- plants, or arrangements for alternative tion of small business in the mobiliza- supply lines where increased invention base, including current procure- tories are not feasible. ment. (ii) A capability to carry on urgent production without dependence on ad- § 321.7 [Reserved] ditional personnel, external sources of power, fuel, and water, or on long-dis- § 321.8 Reports. tance communications; with spare re- The Department of Defense, Depart- placements for highly vulnerable or un- ment of Energy, and Maritime Admin- reliable parts of production equipment. istration shall furnish the Director of

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the Federal Emergency Management (b) This guidance is designed to Agency with reports on items and fa- achieve a degree of national equity in cilities for programs under § 321.2 (a) the use of resources and to assign and and (b) of this part, and with such conserve resources effectively in the other periodic and special reports as he immediate postattack period. Until may require affecting the maintenance more specific instructions are avail- of the mobilization base. able, these are the general guidelines within which managerial judgment and PART 323—GUIDANCE ON PRI- common sense must be used to achieve ORITY USE OF RESOURCES IN IM- national objectives under widely dif- MEDIATE POST ATTACK PERIOD fering emergency conditions. (DMO–4) § 323.3 Responsibilities.

Sec. (a) As stated in The National Plan 323.1 Purpose. for Emergency Preparedness, the direc- 323.2 General policy. tion of resources mobilization is a Fed- 323.3 Responsibilities. eral responsibility. However, in the pe- 323.4 Priority activities in immediate post- riod immediately following an attack, attack period. certain geographical areas may be tem- 323.5 Assignment of resources. porarily isolated, and State and local APPENDIX 1 TO PART 323—LIST OF ESSENTIAL governments will assume responsi- SURVIVAL ITEMS bility for the use of resources remain- AUTHORITY: National Security Act of 1947, ing in such areas until effective Fed- as amended, 50 U.S.C. 404; Defense Produc- eral authority can be restored. State tion Act of 1950, as amended, 50 U.S.C. app. and local governments will not assume 2061 et seq.; Reorganization Plan No. 3 of 1978, responsibility for resources under the 3 CFR, 1978 Comp., p. 329; E.O. 12148 of July jurisdiction of a Federal agency where 20, 1979, 44 FR 43239. the Federal agency is able to function. SOURCE: 45 FR 44579, July 1, 1980, unless (b) As soon as possible after an at- otherwise noted. tack and until specific national direction and guidance on the use of re- § 323.1 Purpose. sources is provided, Federal, State, and This part: local officials will determine what re- (a) States the policy of the Federal sources are available, to what needs Government on use of resources in the they can be applied, how they are to be period immediately following a nuclear used, and the extent to which resources attack on the United States; are deficient or in excess of survival (b) Provides general guidance for needs. They will base determinations Federal, State, and local government as to the relative urgency for use of re- officials on activities to be accorded sources primarily upon the importance priority in the use of postattack re- of specific needs of defense, survival, sources; and and recovery. (c) Lists those items essential to national survival in the immediate § 323.4 Priority activities in immediate postattack period. postattack period. The following activities are to be ac- § 323.2 General policy. corded priority over all other claims (a) In an immediate postattack pe- for resources. There is no significance riod all decisions regarding the use of in the order of the listing—all are im- resources will be directed to the objec- portant. The order in which and the ex- tive of national survival and recovery. tent to which they are supported lo- In order to achieve this objective, cally may vary with local conditions postattack resources will be assigned and circumstances. If local conditions to activities concerned with the main- necessitate the establishment of an tenance and saving of lives, immediate order of priority among these activi- military defense and retaliatory oper- ties, that order shall be based on deter- ations, economic activities essential to minations of relative urgency among continued survival and recovery. the activities listed, the availability of

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resources for achieving the actions re- to meet the emergency requirements of quired, and the feasibility and timeli- the priority activities indicated above. ness of the activities in making the The principal objectives are to use most rapid and effective contribution available resources to serve essential to national survival. needs promptly and effectively, and to: (a) The immediate defense and retal- (a) Protect and to prevent waste or iatory combat operations of the Armed dissipation of resources prior to their Forces of the United States and its Al- assignment to priority activities; lies: This includes support of military (b) Support production of essential personnel and the production and dis- goods. Other production will be per- tribution of military and atomic weap- mitted to continue only from inven- ons, materials and equipment required tories on hand and when there is no to carry out these immediate defense emergency requirement for the re- and retaliatory combat operations. sources vital to this production. (b) Maintenance or reestablishment (c) Support construction for emer- of Government authority and control gency repair and restoration, construc- to restore and preserve order and to assure direction of emergency operations tion of facilities needed for survival, or essential for the safety and protection the conversion of facilities to survival of the people. This includes: use, where this can be accomplished (1) Police protection and movement quickly. Other construction already direction; under way should be stopped, and no (2) Fire defense, rescue and debris new construction started unless it can clearance; be used immediately for essential pur- (3) Warnings; poses upon completion. (4) Emergency information and instructions; APPENDIX 1 TO PART 323—LIST OF (5) Radiological detection, moni- ESSENTIAL SURVIVAL ITEMS toring and decontamination. This document contains a list of items con- (c) Production and distribution of sidered essential to sustain life at a produc- survival items and provision of services tive level to assure national survival in an essential to continued survival and emergency. The list identifies items to rapid recovery. (For list of survival which major attention should be given in all items, see appendix 1 to this part.) phases of preattack planning to insure the These include: availability of basic essentials for a produc- (1) Expedient shelter; tive economy in the event of a nuclear at- (2) Food, including necessary proc- tack. Supply-requirements studies and as- essing and storage; sessments for these items will be made to disclose critical deficiencies or other prob- (3) Feeding, clothing, lodging, and lems that can be anticipated. Revisions will other welfare services; be made as necessary to keep the items as (4) Emergency housing and commu- up-to-date as possible. nity services; The items are arranged by seven major (5) Emergency health services, in- groups: cluding medical care, public health and (1) Health Supplies and Equipment, sanitation; (2) Food, (6) Water, fuel, and power supply; (3) Body Protection and Household Oper- (7) Emergency repair and restoration ations, of damaged vital facilities. (4) Electric Power and Fuels, (d) Essential communications and (5) Sanitation and Water Supply, transportation services needed to carry (6) Emergency Housing and Construction out the above activities. Materials and Equipment, and (e) Provision of supplies, equipment, (7) General Use Items. and repair parts to produce and dis- Survival items are defined as ‘‘those items tribute goods needed for the above ac- without which large segments of the popu- tivities. lation would die or have their health so seriously impaired as to render them both bur- § 323.5 Assignment of resources. densome and non-productive.’’ The items have been classified into Group A or Group Resources required for essential uses, B, with Group A representing end products including manpower, will be assigned consumed or used directly by the population,

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and Group B consisting of those items essen- Oxygen. tial to the effective production and utiliza- Surgical antiseptics. tion of the Group A items, which are con- Sulfa drugs. sumed or used directly by the people. Synthetic plasma volume expanders. There are no Group B items in the cat- Vitamin preparations, pediatric. egories of Health Supplies and Equipment, Water for injection. Body Production and Household Operations, 2. Blood Collecting and Dispensing Supplies: and Emergency Housing and Construction Blood collecting and dispensing containers. Materials and Equipment. All of these items Blood donor sets. are considered to be consumed directly and Blood grouping and typing sera. any attempt to separate them in to A and B Blood recipient sets. groupings would be too arbitrary to be mean- Blood shipping containers. ingful. 3. Biologicals: It is important to keep in mind the fact Diphtheria toxoid. that while the items listed are the basic es- Diphtheria antitoxin. sentials necessary for maintaining a viable Diphtheria and tetanus toxoids and pertussis economy during the first six months fol- vaccine. lowing an attack, not all of them would cre- Gas gangrene antitoxin. ate problems that would require government Poliomyelitis vaccine, oral. action preattack to insure adequate supplies. Rabies vaccine. The aforementioned supply-requirements Smallpox vaccine. studies will be undertaken to identify the Tetanus antitoxin. problem areas. In developing supply data, all Tetanus toxoid, absorbed. available production capacity, existing in- Typhoid vaccine. ventories, and possible substitutions will be Typhus vaccine, epidemic. considered. For example, in analyzing cloth- Yellow fever vaccine. ing items, all available supplies would be 4. Surgical Textiles: considered from sport to dress shirts, from Adhesive plaster. overalls to dress suits. However, new produc- Bandage, gauze. tion would be limited to the simplest form of Bandage, muslin. the basic item which can be produced. The Bandage, plaster of paris. final determination as to which of the items Cotton, USP. are most critical and which may require Surgical pads. preattack actions by the Government, as Stockinette, surgical. well as the type of actions which must be Wadding, cotton sheet. taken, can be made only after a comprehensive supply-requirements analysis is com- 5. Emergency Surgical Instruments and Sup- pleted. plies: Airway, pharyngeal. LIST OF ESSENTIAL SURVIVAL ITEMS Anesthesia apparatus. Basin, wash, solution. I. HEALTH SUPPLIES AND EQUIPMENT Blade, surgical knife. Brush, scrub, surgical. Group A Catheter, urethral. 1. Pharmaceuticals: Containers for sterilization. Alcohol. Chisel, bone. Analgesics, non-narcotic. Drain, Penrose. Antibiotics and antibacterials. Dusting powder. Antidiabetic agents, oral. Forceps, dressing. Antihistamines. Forceps, hemostatic. Antimalarials. Forceps, obstetrical. Atropine. Forceps, tissue. Blood derivatives. Gloves, surgeon’s. Carbon dioxide absorbent. Handles, surgical knife. Cardiovascular depressants. Holder, suture needle. Cardiovascular stimulants. Inhaler, anesthesia, Yankauer (ether mask). Corticosteriods. Intravenous injection sets. Diuretics. Knife, cast cutting. General anesthetics. Lamps, for diagnostic instruments. Hypnotics. Lamps, for surgical lights. Insulin. Laryngoscope. Intravenous solutions for replacement ther- Light, surgical, portable. apy. Litter. Local anesthetics. Mallet, bone surgery. Lubricant, surgical. Needles, hypodermic, reusable. Morphine and substitutes. Needles, suture, eyed. Oral electrolytes. Otoscope and ophthalmoscope set.

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Probe, general operating. 6. Sugars and syrups. Important for palat- Razor and blades (for surgical preparation). ability and food energy. Retractor, rib. 7. Food adjuncts. Certain food adjuncts Retractor set, general operating. should be provided to make effective use of Rongeur, bone. available foods. These include antioxidants Saw, amputating. and other food preservatives, yeast, baking Saw, bone cutting, wire (Gigli). powder, salt, soda, seasonings and other con- Scissors, bandage. diments. In addition, coffee, tea, and cocoa Scissors, general surgical. are important for morale support. Sigmoidoscope. Speculum, vaginal. Group B Sphygmomanometer. Splint, leg, Thomas. Food containers. Splint, wire, ladder. Nitrogenous fertilizers. Sterilizer, pressure, portable. Seed and livestock feed. Stethoscope. Salt for livestock. Sutures, absorbable. Veterinary Medical Items: Sutures, absorbable, with attached needle. Anthrax vaccine. Sutures, nonabsorbable. Black leg vaccine. Sutures, nonabsorbable, with attached nee- Hog cholera vaccine. dle. Newcastle vaccine. Syringes, Luer, reusable (hypodermic syringes). III. BODY PROTECTION AND HOUSEHOLD Thermometers, clinical. OPERATIONS Tracheotomy tube. Group A Tube, nasogastric. Tubing, rubber or plastic, and connectors. 1. Clothing: Vascular prostheses. Gloves and mittens. Webbing, textile, with buckle. Headwear. 6. Laboratory Equipment and Supplies: Hosiery. Bacteriological culture media and apparatus. Outerwear. Balance, laboratory with weights. Shoes and other footwear. Blood and urine analysis instruments, equip- Underwear. ment and supplies. Waterproof outer garments. Chemical reagents, stains and apparatus. 2. Personal Hygiene Items: Glassware cleaning equipment. Diapers, all types. Laboratory glassware. Disposable tissues. Microscope and slides. First aid items (included on Health Supplies Water purification apparatus. and Equipment List). Nipples. Group B Nursing bottles, all types. None. Pins. Sanitary napkins. II. FOOD Soaps, detergents, and disinfectants. Group A Toilet tissue. 3. Household Equipment: 1. Milk group. Milk in all forms, milk prod- Bedding. ucts. Important for calcium, riboflavin, pro- Canned heat. tein, and other nutrients. Cots. 2. Meat and meat alternate group. Meat, Hand sewing equipment. poultry, fish, eggs; also dry beans, peas, nuts. Heating and cooking stoves. Important for protein, iron, and B-vitamins. Incandescent hand portable lighting equip- 3. Vegetable-fruit group. Including 1. Dark ment (including flashlights, lamps, bat- Green and yellow vegetables. Important for teries). Vitamin A. 2. Citrus fruit or other fruit or Kitchen, cooking, and eating utensils. vegetables. Important for Vitamin C. 3. Lamps (incandescent medium base) and lamp Other fruits and vegetables, including pota- holders. toes. Matches. 4. Grain products. Especially enriched, re- Nonelectric lighting equipment. stored, cereal and cereal products, and bread, Sleeping bags. flours, and meals. Important for energy, protein, iron, and B-vitamins. Group B 5. Fats and oils. Including butter, mar- garine, lard, and other shortening oils. Im- None. portant for palatability and food energy; IV. ELECTRIC POWER AND FUELS some for Vitamin A and essential fatty acids. 1. Electric Power.

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Group A V. SANITATION AND WATER SUPPLY Electricity. Group A Group B 1. Water. 2. Water Supply Materials: Conductors (copper and/or aluminum), in- a. Coagulation: cluding bare cable for high voltage lines Ferric chloride. and insulated wire or cable for lower volt- Ferrous sulfate. age distribution circuits. Ferric sulfate. Switches and circuit breakers. Chlorinated copperas. Insulators. Filter alum. Pole line hardware. Hydrated lime. Poles and crossarms. Pulverized limestone. Transformers (distribution, transmission, Soda ash. and mobile). b. Disinfection Chemicals: Tools for live-circuit operations, including High-test hypochlorites (70 percent) in rubber protective equipment, and drums, cans, ampules. linemen’s tools. Iodine tablets. Utility repair trucks, fully equipped. Liquid chlorine, including containers. Prime mover generator sets up to 501 kilo- Chlorine compounds (not gas). watts and 2400 volts, including portable c. Miscellaneous Materials: and mobile sets up to 150 kilowatts and 110/ Diatomaceous earth. 220/440 volts, 3-phase, 60-cycle complete Activated carbon. with fuel tank and switchgear in self-con- 3. Chemical Biological, and Radiological CBR tained units. Detection, Protection, and Decontamination 2. Petroleum Products. Items: Calibrators. Group A Chemical agent detection kits, air, food, and water. Gasoline. Dosimeters and chargers. Kerosene. Protective masks, clothing, helmets. Distillate fuel oil. Survey meters (Alpha, Beta, Gamma). Residual fuel oil. Warning signs—biological, chemical, and ra- Liquefied petroleum oil. diological contamination. Lubricating oil. 4. Insect and Rodent Control Items: Grease. a. Insecticides: DDT, water dispersible powder (75 percent). Group B Lindane powder, dusting (1 percent). Storage tanks. Malathion, liquid, emulsifiable concentrate Pumps for loading and unloading. (57 percent). Pressure containers and fittings for liquefied Deet (diethyltoluamide) 75 percent in dena- petroleum gas. tured alcohol. Pyrethrum. 3. Gas. b. Rodenticides: Anticoagulant type, ready-mixed bait. Group A ‘‘1080’’ (sodium monofluoroacetate) (for con- Natural gas. trolled use only). Manufactured gas. 5. General Sanitation: Lye. Group B Group B Various sizes of pipe (mostly steel). Various sizes of valves, fittings, and pressure 1. General Supplies and Equipment: regulators. Chemical feeders. Specialized repair trucks and equipment. Mobile and portable pressure filters. Chlorinators (gas and hypochlorites). 4. Solid Fuels. Pumps and appurtenances, Hand—Electric— Group A Gasoline—Diesel. Well-drilling equipment, including well cas- Coal and coke. ing, drive pipe and drive points. 2. Storage and Transport Equipment: Group B Lyster bags. Conveyor belting. Storage tanks, collapsible and portable. Insulated trail cables. Storage tanks, rigid, transportable. Trolley feeder wire. Storage tanks, wood stave, knock-down. Roof bolts. 3. Laboratory Equipment and Supplies:

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Membrane filter kits with filters and media. Truck tractors and trailers, including low Chlorine and pH determination equipment. bed. 4. Sanitation Equipment: Trucks up to five tons (25 percent equipped Hand sprayer, continuous type. with power takeoff). Hand sprayer, compression type. Welding equipment and supplies (electric and Hand duster, plunger type. acetylene). Spraying equipment for use with helicopter, fixed-wing light aircraft, high-speed fixed- wing attack aircraft, and cargo-type air- PARTS 324–325 [RESERVED] craft. PART 327—POLICY ON USE OF VI. EMERGENCY HOUSING AND CONSTRUCTION MATERIALS AND EQUIPMENT GOVERNMENT–OWNED INDUS- TRIAL PLANT EQUIPMENT BY PRI- Group A VATE INDUSTRY (DMO–10A) Asphalt and tar roofing and siding products. Builders hardware—hinges, locks, handles, Sec. etc. 327.1 Purpose. Building board, including insulating board, 327.2 Scope and applicability. laminated fiberboard, hardpressed fiber- 327.3 Policy. board, gypsum board, and asbestos cement 327.4 Disputes. (flat sheets and wallboard). Building papers. 327.5 Reports. Plastic patching, couplings, clamps, etc. for AUTHORITY: National Security Act of 1947, emergency repairs. as amended, 50 U.S.C. 404; Defense Produc- Plumbing fixtures and fittings. tion Act of 1950, as amended, 50 U.S.C. app. Prefabricated emergency housing. 2061 et seq.; Reorganization Plan No. 3 of 1978, Rough hardware—nails, bolts, screws, etc. 3 CFR, 1978 Comp., p. 329; E.O. 12148 of July Sewer pipe and fittings. 20, 1979, 44 FR 43239. Tents and tarpaulins; canvas, plastics, and other similar materials. SOURCE: 45 FR 44583, July 1, 1980, unless Lumber and allied products; Lumber, prin- otherwise noted. cipally 1-inch and 2-inch, minor quantities of small and large timbers; siding and § 327.1 Purpose. flooring; plywood; millwork, doors, and windows. This part establishes policy on the Masonry products—brick, cement, lime, con- use by private industry of Government- crete block, hollow tile, etc. owned industrial plant equipment. This Translucent window coverings. policy is necessary to maintain a high- Water pipe and hose, plus fittings—all types ly effective and immediately available including fire hose. reserve of such equipment for the Group B emergency preparedness programs of the U.S. Government. None.

VII. GENERAL USE ITEMS § 327.2 Scope and applicability. (a) This part applies to all Federal Group A departments and agencies having, for None. purposes of mobilization readiness, Group B Government-owned industrial plant equipment under their jurisdiction or Batteries, wet and dry cell. control and having emergency pre- Bulldozers. Fire fighting equipment. paredness functions assigned by Execu- Light equipment and hand tools (including tive orders concerning use of that electric powered) for carpentry, masonry, equipment. plumbing, and excavation. (b) As used herein, industrial plant Pipe installation materials and equipment. equipment means those items of equip- Refrigerators, mechanical. ment, each with an acquisition cost of Rigging tools—cables, ropes, tackles, hoists, $1,000 or more, that fall within speci- etc. Tank railroad cars. fied classes of equipment listed in DOD Tank Trucks and trailers. regulations. Classes of equipment may Tires. from time to time be added to or de- Trenching equipment. leted from this list.

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§ 327.3 Policy. tors whose facilities have been dam- (a) General. (1) Primary reliance for aged or destroyed. (d) All new defense production shall be placed upon Uniform rental rates. agreements entered into by any agency private industry. (2) When it is determined by an agen- of the Federal Government under cy that, because of the lack of specific which private business establishments industrial plant equipment, private in- are provided with Government-owned dustry of the United States cannot be industrial plant equipment shall be relied upon for needed Government pro- subject to rental rates established by duction, that agency may provide to the Secretary of Defense pursuant to private industry such Government- section 809 of Public Law 93–155. The owned industrial plant equipment as is rental rates shall ensure a fair and eq- deemed necessary to ensure required uitable return to the U.S. Government production capability. Requirements and be generally competitive with for such equipment should be reviewed commercial rates for like equipment. (e) at least annually to ascertain the con- Use of Government-owned industrial ( tinuing need, particularly with a view plant equipment for commercial non-Gov- ) Subject to adequate toward private industry furnishing the ernment purposes. controls being established under DOD equipment for long term requirements. (3) When it is necessary for Federal regulations pursuant to Public Law 93– agencies to supply Government-owned 155, and statutory authority for leas- industrial plant equipment to private ing, Government-owned industrial industry, these agencies will maintain plant equipment may be authorized for uniformity and fairness in the arrange- commercial use by contractors per- ments for the use of this equipment by forming contracts or subcontracts for following regulations for the use of the Government agency if it is nec- such equipment as developed and pub- essary to keep the equipment in a high lished by the Secretary of Defense pur- state of operational readiness through suant to section 809 of Public Law 93– regular usage to support the emer- 155. The regulations to be developed by gency preparedness programs of the the Secretary of Defense shall be in U.S. Government. consonance with this order. These reg- § 327.4 Disputes. ulations will attempt to ensure that no Government contractor is afforded an In the event of an interagency dis- advantage over his competitors and pute about the regulations developed that Government-owned industrial by the Department of Defense in ac- plant equipment is maintained prop- cordance with this order, the Director, erly and kept immediately available Federal Emergency Management Agen- for the emergency preparedness needs cy, shall adjudicate. of the United States. § 327.5 Reports. (b) Interagency use of idle equipment. In any instances in which a Govern- Such reports of operations under this ment contractor cannot meet Govern- order as may be required by the Fed- ment production schedules because eral Emergency Management Agency, necessary industrial plant equipment is shall be submitted to the Director. not available from private industry or from the contracting Federal depart- PART 328 [RESERVED] ment or agency, idle industrial plant equipment under the control of other PART 329—USE OF PRIORITIES AND Federal agencies may be made avail- ALLOCATION AUTHORITY FOR able for this purpose through existing FEDERAL SUPPLY CLASSIFICA- authorities on a transfer, loan, or re- TION (FSC) COMMON USE ITEMS placement basis by interagency agreement. (DMO–12) (c) Availability of equipment for emer- Sec. gency use. Government-owned indus- 329.1 Purpose. trial plant equipment may be provided 329.2 Policies. by controlling agencies for emergency 329.3 Procedures. use by essential Government contrac- 329.4 Implementation.

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AUTHORITY: Defense Production Act of 1950, justification to support the need for as amended, 50 U.S.C. app. 2061 et seq.; Reor- such assistance. ganization Plan No. 3 of 1978, 3 CFR, 1978 (b) Priority ratings may be used for Comp., p. 329; E.O. 12148 of July 20, 1979, 44 FR 43239; E.O. 10480 of Aug. 14, 1953, (18 FR the procurement of other authorized 4939) as amended. FSC Groups, Classes, and Items only in quantities required to meet the needs SOURCE: 45 FR 44585, July 1, 1980, unless otherwise noted. of approved programs of ratable agencies. The quantities of current procure- § 329.1 Purpose. ment of each Group, Class, and Item This part provides policy guidance shall be based on and shall not exceed concerning the use of priorities and al- the ratio of rated purchases to total location authority under title I of the purchases for that Group, Class, and Defense Production Act of 1950, as Item that was consummated in the 6- amended, for the procurement of com- month period preceding the first day of mon use items in the Federal Supply January and July in each year. Any Classification (FSC). other periodic cycle considered suitable and agreed to by the Domestic and § 329.2 Policies. International Business Administration, The following guidance is provided Department of Commerce, and the pro- pursuant to the Defense Production curing agency may be substituted. Act of 1950, as amended; section 201 of (c) In the interest of minimizing ad- Executive Order 10480, and § 322.2 of this ministrative costs, where rated pro- chapter (DMO–3). curement under paragraph (b)(2) of this (a) Priority ratings under title I of section, constitutes 97 percent or more the Defense Production Act of 1950, as of the total procurement of a Group, amended, are not authorized for cer- Class, or Item, all of the Group, Class, tain FSC Groups, Classes, and Items: (1) Which are of the types commonly or Item may be bought on ratings. available in commercial markets for § 329.3 Procedures. general consumption, (2) Which do not require major modi- Requests for additional authoriza- fication when purchased for military or tions of Classes, Groups, or Items other ratable government use, and should be presented to General Serv- (3) Which are in sufficient supply as ices Administration (AP), Washington, to cause no hindrance to the accom- DC, 20405, accompanied by a statement plishment of military or other national of justification indicating why the defense objectives. Class, Group, or Item should be re- Such Groups, Classes, and Items will be garded as necessary or appropriate to as specified from time to time by the promote the national defense and why Department of Commerce with the ap- defense-related requirements cannot be proval of the Federal Emergency Man- met without the use of priorities. agement Agency. Procurement in these Groups, Classes, and Items is to be § 329.4 Implementation. made without priority assistance, in- Departments and agencies involved cluding single service procurement with this program shall issue imple- that may include defense and defense- menting instructions and directives no supporting needs. In the event procure- later than 30 work days from the effec- ment difficulties are encountered which threaten timely delivery, appli- tive date of this order. Copies of such cation for special assistance may be instructions, directives, and related made for those categories of supply au- documents shall be furnished to the thorized special assistance in existing General Services Administration (AP) lists, and must be accompanied by full on a routine basis as issued.

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PART 330—POLICY GUIDANCE maintenance of energy facilities, can- AND DELEGATION OF AUTHORI- not reasonably be accomplished with- TIES FOR USE OF PRIORITIES AND out exercising this authority. ALLOCATIONS TO MAXIMIZE DO- (b) The authority contained in subsection 101(c) shall not be used to re- MESTIC ENERGY SUPPLIES IN AC- quire priority performance under con- CORDANCE WITH SUBSECTION tracts or orders relating to, or the allo- 101(c) OF THE DEFENSE PRO- cation of, any supplies of materials and DUCTION ACT OF 1950, AS equipment except for programs or AMENDED (DMO–13) projects to maximize domestic energy supplies as specifically determined by Sec. the Secretary of Energy, after coordi- 330.1 Purpose. nation with the Director, Federal 330.2 Policies. Emergency Management Agency. 330.3 Delegation of authority. (c) The allocation of, or priority per- AUTHORITY: Defense Production Act of 1950, formance under contracts or orders reas amended, including amendment to sec. lating to, supplies of materials and 101(c) by sec. 104 of the Energy Policy and equipment in support of authorized Conservation Act (Pub. L. 94–163) 50 U.S.C. programs or projects shall be so under- app. 2061 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12148 of taken as to ensure that: July 20, 1979, 44 FR 43239; E.O. 11912 of April (1) Supplies of the specified materials 13, 1976. and equipment are available to the extent practicable on time and in proper SOURCE: 45 FR 44586, July 1, 1980, unless otherwise noted. quantity to authorized programs or projects. § 330.1 Purpose. (2) The demands of these authorized This part: programs or projects are distributed (a) Establishes policy guidance on de- among suppliers on a fair and equitable termination and use of priorities and basis. allocations for materials and equip- (3) Allotments of supplies of mate- ment to maximize domestic energy rials and equipment are not made in supplies pursuant to section 104 of the excess of actual current requirements Energy Policy and Conservation Act of these authorized programs or (Pub. L. 94–163, 89 Stat. 878), which projects. added subsection 101(c) to the Defense (4) Fulfillment of the needs of these Production Act of 1950, as amended authorized programs and projects are (the Act); and achieved in such manner and to such (b) Delegates authority and assigns degree as to minimize hardship in the responsibility related thereto pursuant market place. to sections 7 and 8 of Executive Order (d) The authority of subsection 101(c) 11912, dated April 13, 1976. of the Act will not be used to control the general distribution of any supplies § 330.2 Policies. of material and equipment in the civil- (a) The authority of subsection 101(c) ian market, as that phrase is used in of the Act to require the allocation of, subsection 101(b) of the Act, except or priority performance under con- after Presidential approval as required tracts or orders relating to, supplies of by subsection 7(d) of Executive Order materials and equipment to maximize 11912. domestic energy supplies shall be limited to those exceptional cir- § 330.3 Delegation of authority. cumstances when it is found that: (a) The functions of the Director of (1) Such supplies of material and the Federal Management Agency under equipment are scarce, critical, and es- subsection 101(c) of the Act are hereby sential; and delegated to the Secretary of Com- (2) The maintenance or furtherance merce with respect to the areas of re- of exploration, production, refining, sponsibility designated and subject to transportation, or conservation of en- the limitations prescribed and section 7 ergy supplies, or the construction and of Executive Order 11912. Specifically:

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(1) The Secretary of Commerce is del- (d) Procedures to execute the above egated the function, provided in sub- delegations will be carried out in ac- section 101(c)(1) of the Act, of requiring cordance with guidance provided by the the allocation of, or priority perform- Director, Federal Emergency Manage- ance under contracts or orders (other ment Agency, pursuant to this order than contracts of employment) relat- and Executive Order 11912. ing to, supplies of materials and equipment to maximize domestic energy supplies, if the findings specified in PART 331—PRESERVATION OF THE subsection 101(c)(3) of the Act are MOBILIZATION BASE THROUGH made. THE PLACEMENT OF PROCURE- (2) The Secretary of Commerce is del- MENT AND FACILITIES IN LABOR egated those functions provided in sub- SURPLUS AREAS section 101(c)(3) of the Act, but shall redelegate to the Secretary of Energy Sec. the function of making the findings 331.1 Purpose. that supplies of materials and equip- 331.2 Policy. ment are critical and essential to 331.3 Scope and applicability. maximize domestic energy supplies. 331.4 Special consideration. The Secretary of Commerce shall re- 331.5 Production facilities. tain the functions of finding that supplies of materials and equipment are AUTHORITY: Reorganization Plan No. 3 of 1978, E.O. 10480, as amended, E.O. 12148. scarce, and that the purposes described in subsection 101(c)(3)(B) of the Act SOURCE: 45 FR 34885, May 23, 1980, unless cannot reasonably be accomplished otherwise noted. Redesignated at 45 FR 44575, without exercising the authority speci- July 1, 1980. fied in subsection 101(c)(1). This finding will include, to the extent practicable, § 331.1 Purpose. an assessment of the effects of using Success of the national defense pro- the authority for the project in ques- gram depends upon efficient use of all tion on other significantly impacted of our resources, including the labor projects. force and production facilities, which (b) The Director of the Federal Emer- are preserved through utilizing the gency Management Agency shall be re- skills of both management and labor. A sponsible for the overall coordination primary aim of Federal manpower pol- and direction of the functions provided icy is to encourage full utilization of by subsection 101(c) of the Act in a existing production facilities and manner similar to the exercise of func- workers in preference to creating new tions under subsections 101(a) and plants or moving workers, thus assist- 101(b) of the Act. In line with these ing in the maintenance of economic functions, the Director is also respon- balance and employment stability. sible for resolving any conflicts be- When large numbers of new workers tween claimant agencies regarding par- move to labor surplus areas, heavy bur- ticular supplies of materials and equip- dens are placed on community facili- ment. In addition, the Federal Emer- gency Management Agency will mon- ties, such as schools, hospitals, hous- itor the impact of the implementation ing, transportation, and utilities. On of the authorities of subsection 101(c) the other hand, when unemployment and other authorities under section 101 develops in certain areas, unemploy- of the Defense Production Act on each ment costs increase the total cost to other and on the national economy. the Government, and plants, tools, and (c) The functions assigned, delegated, workers’ skills remain idle and unable or required to be redelegated by this to contribute to our national defense order to the Secretary of Commerce program. Consequently, it is the pur- and the Secretary of Energy may not pose of Defense Manpower Policy No. be redelegated to other agencies with- 4B to direct attention to the potential out first being coordinated with the Di- of labor surplus areas when awarding rector, Federal Emergency Manage- appropriate procurement contracts and ment Agency. when locating new plants or facilities.

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§ 331.2 Policy. ganizations, expanding tourist busi- (a) It is the policy of the Federal ness, and available Federal aids. Government to award appropriate con- (b) The Administrator of the Small tracts to eligible labor surplus area Business Administration shall make concerns, to place production facilities available to small business concerns in in labor surplus areas, and to make the labor surplus areas all of its services, best use of our natural, industrial and endeavor to ensure opportunity for labor resources in order to achieve the maximum participation by such con- following objectives: cerns in Government procurement, and (1) To preserve management and em- give consideration to the needs of these ployee skills necessary to the fulfill- concerns in the making of joint small ment of Government contracts and business set-asides with Government purchases; procurement agencies. (2) To maintain productive facilities; (c) OFPP shall coordinate the main- (3) To improve utilization of the Na- tenance by Federal agencies of current tion’s total economic potential by information on the manufacturing ca- making use of the labor force resources pabilities of labor surplus area con- of each area; and cerns with respect to Government pro- (4) To help ensure timely delivery of curement and disseminate such infor- required goods and services and to pro- mation to Federal departments and mote readiness for mobilization by lo- agencies. cating procurement where the needed labor force and facilities are fully § 331.4 Special consideration. available. When an entire industry that sells a (b) This policy is consonant with the significant proportion of its production intent of Public Law 95–89 and Public to the Government is generally de- Law 95–507 as implemented by E.O. pressed or has a significant proportion 12073. In carrying out this policy, Fed- of its production, manufacturing and eral departments and agencies shall be service facilities located in a labor sur- guided by E.O. 12073, the policy direc- plus area, the Director, Federal Emer- tion of the Office of Federal Procure- gency Management Agency, or suc- ment Policy and implementing regula- cessor in function, after notice to and tions. hearing of interested parties, will give § 331.3 Scope and applicability. consideration to appropriate measures applicable to the entire industry. The provisions of this policy apply to all Federal departments and agencies, § 331.5 Production facilities. except as otherwise prohibited by law. In addition to these normal duties; All Federal departments and agencies (a) The Secretary of Commerce shall: shall give consideration to labor sur- (1) In cooperation with State eco- plus areas in the selection of sites for nomic development agencies, the Sec- Government-financed production facili- retary of Defense, the Administrator of ties, including expansion, to the extent General Services, and the Adminis- that such selection is consistent with trator of Small Business Administra- existing law and essential economic tion, assist concerns which have agreed and strategic factors. to perform contracts in labor surplus areas in obtaining Government pro- PART 332—VOLUNTARY AGREE- curement business by providing such MENTS UNDER SECTION 708 OF concerns with timely information on THE DEFENSE PRODUCTION ACT proposed Government procurements. OF 1950, AS AMENDED (2) Urge concerns planning new production facilities to consider the ad- Sec. vantages of locating in labor surplus 332.1 General provisions. areas. 332.2 Developing voluntary agreements. (3) Provide technical advice and 332.3 Carrying out voluntary agreements. counsel to groups and organizations in 332.4 Termination or modifying voluntary labor surplus areas on planning indus- agreements. trial parks, industrial development or- 332.5 Public access to records and meetings.

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AUTHORITY: Sec. 708, Defense Production which they apply, if that provision is Act of 1950, as amended (50 U.S.C. app. 2158); contrary to or inconsistent with them. E.O. 10480, 3 CFR, 1949–1953 Comp., p. 961, as Each voluntary agreement shall be amended; E.O. 12148, 44 FR 43239. construed as containing every sub- SOURCE: 46 FR 2350, Jan. 9, 1981, unless oth- stantive provision that these rules re- erwise noted. quire, whether or not a particular provision is included in the agreement. § 332.1 General provisions. (e) Pursuant to subsection 708(d) of (a) Pursuant to section 708 of the De- the DPA, the sponsor may establish fense Production Act of 1950, as amend- such advisory committees as he deems ed (50 U.S.C. App. 2158), the President to be necessary for developing or car- may consult with representatives of in- rying out voluntary agreements. Such dustry, business, financing, agri- advisory committees shall comply with culture, labor, or other interests, and this part as well as with the require- may approve the making of voluntary ments and procedures of the Federal agreements to help provide for the de- Advisory Committee Act (Pub. L. 92– fense of the United States by devel- 463, as amended). oping preparedness programs and expanding productive capacity and sup- § 332.2 Developing voluntary agree- ply beyond levels needed to meet essen- ments. tial civilian demand. (a) Purpose and scope. This section es- (b) Sponsor. (1) As used in this part, tablishes the standards and procedures ‘‘sponsor’’ of a voluntary agreement is by which voluntary agreements may be an officer of the Government who, pur- developed through consultation, pursu- suant to a delegation or redelegation of ant to subsection 708(c) of the DPA. the functions given to the President by (b) Proposal to develop an agreement. section 708 of the Defense Production (1) A sponsor who wishes to develop a Act (DPA) of 1950, as amended, pro- voluntary agreement shall submit to poses or otherwise provides for the de- the Attorney General and the Director velopment or carrying out of a vol- of the Federal Emergency Management untary agreement. Agency a document proposing the (2) The use of voluntary agreements, agreement. The proposal will include as authorized by section 708 of the DPA statements as to: The purpose of the to help provide for the defense of the agreement; the factual basis for mak- United States through the development ing the finding required in subsection of preparedness programs, is an activ- 708(c)(1) of the DPA; the proposed par- ity coordinated by the Director of the ticipants in the agreement; and any co- Federal Emergency Management Agen- ordination with other Federal agencies cy, as provided by sections 101 and accomplished in connection with the 501(a) of Executive Order 10480, as proposal. amended. (2) If the Attorney General, after con- (3) The sponsor of a voluntary agree- sultation with the Chairman of the ment shall carry out sponsorship func- Federal Trade Commission, approves tions subject to the direction and con- this proposal, the sponsor shall then trol of the Director of the Federal initiate one or more meetings of inter- Emergency Management Agency. ested persons to develop the agree- (c) This part applies to the development. ment and carrying out under section (c) Conduct of meetings held to develop 708 of the DPA, as amended, of all vol- the agreement. (1) The sponsor shall give untary agreements, and the carrying to the Attorney General, the Chairman out of any voluntary agreement which of the Federal Trade Commission, and was entered into under former section the Director of the Federal Emergency 708 of the DPA and in effect imme- Management Agency adequate written diately prior to April 14, 1976, and notice of each meeting to develop a which is in a period of extension as au- voluntary agreement. The sponsor thorized by subsection 708(f)(2) of the shall also publish in the FEDERAL REG- DPA. ISTER notice of the time, place, and na- (d) The rules in the part void any ture of each meeting at least seven provision of a voluntary agreement to days prior to the meeting.

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(2) The sponsor shall chair each § 332.3 Carrying out voluntary agree- meeting held to develop a voluntary ments. agreement. Both the Attorney General (a) Purpose and scope. This section es- and the Chairman of the Federal Trade tablishes the standards and procedures Commission, or their delegates, shall by which the participants in each ap- attend each of these meetings. proved voluntary agreement shall (3) Any interested person may attend carry out the agreement. a meeting held to develop a voluntary (b) Participants. The participants in agreement, unless the sponsor of the each voluntary agreement shall be rea- agreement limits attendance pursuant sonably representative of the appro- to § 332.5 of this part. priate industry or segment of that in- (4) Any interested person may, as set dustry. out in the FEDERAL REGISTER meeting (c) Conduct of meetings held to carry notice, submit written data and views out an agreement. (1) The sponsor of a concerning the proposed voluntary voluntary agreement shall initiate, or agreement, and at the discretion of the approve in advance, each meeting of Chairman of the meeting, may be given the participants in the agreement held the opportunity for oral presentation. to discuss problems, determine poli- (d) Maintenance of records. (1) The cies, recommend actions, and make de- sponsor is responsible for the making cisions necessary to carry out the of a full and verbatim transcript of agreement. each meeting. The Chairman shall send (2) The sponsor shall provide to the this transcript, and any voluntary Attorney General, the Chairman of the agreement resulting from the meeting, Federal Trade Commission, and the Di- to the Attorney General, the Chairman rector of the Federal Emergency Man- of the Federal Trade Commission, the agement Agency adequate prior notice Director of the Federal Emergency of the time, place, and nature of each Management Agency, and any other meeting, and a proposed agenda of each party or repository required by law. meeting. The sponsor shall also publish (2) The sponsor of a voluntary agree- in the FEDERAL REGISTER, reasonably ment shall maintain each meeting in advance of each meeting, a notice of transcript and voluntary agreement, time, place, and nature of the meeting. and make them available for public in- If the sponsor has determined, pursu- spection and copying the extent re- ant to § 332.5 of this part, to limit at- quired by § 332.5 of this part. tendance at the meeting, the sponsor (e) Effectiveness of agreements. The fol- shall publish this FEDERAL REGISTER lowing steps must occur before a new notice within ten days of the meeting. voluntary agreement or an extension of (3) Any interested person may attend an existing agreement may become ef- a meeting held to carry out a vol- fective: untary agreement unless the sponsor (1) The sponsor must approve the has restricted attendance pursuant to agreement and certify in writing that § 332.5 of this part. A person attending a it is necessary to carry out the pur- meeting under this section may poses of subsection 708(c)(1) of the present oral or written data, views, and DPA; arguments to any limitations on the (2) The Director of the Federal Emer- manner of presentation that the spon- gency Management Agency must ap- sor may impose. prove this certification, and submit it (4) No meeting shall be held to carry to the Attorney General with a request out any voluntary agreement unless a for a written finding; and Federal employee, other than an indi- (3) The Attorney General, after con- vidual employed pursuant to 5 U.S.C. sulting with the Chairman of the Fed- 3109, is in attendance. Any meeting to eral Trade Commission, must issue a carry out a voluntary agreement may written finding that the purposes of be attended by the sponsor of the subsection 708(c)(1) can not reasonably agreement, the Attorney General, the be achieved through a voluntary agree- Chairman of the Federal Trade Com- ment having less anti-competitive ef- mission, the Director of the Federal fects or without any voluntary agree- Emergency Management Agency, or ment. their delegates.

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(5) Notwithstanding any other provi- his participation in the agreement sion of this section, a meeting between upon written notice to the sponsor. a single participant and the sponsor Any antitrust immunity conferred solely to deliver or exchange informa- upon the participants in that agree- tion is not subject to the requirements ment by subsection 708(j) of the DPA and procedures of this section, provided shall not apply to any act or omission that a copy of the information is occurring after the termination of the promptly delivered to the Attorney voluntary agreement. Immediately General, the Chairman of the Federal upon modification of a voluntary Trade Commission, and the Director of agreement, no antitrust immunity the Federal Emergency Management shall apply to any subsequent act or Agency. omission that is beyond the scope of (d) Maintenance of records. (1) The the modified agreement. participants in any voluntary agreement shall maintain for five years all § 332.5 Public access to records and minutes of meetings, transcripts, rec- meetings. ords, documents, and other data, in- (a) Interested persons may, pursuant cluding any communications among to 5 U.S.C. 552, inspect or copy any vol- themselves or with any other member untary agreement, minutes of meet- of their industry, related to the car- ings, transcripts, records, or other data rying out of the voluntary agreement. maintained pursuant to these rules. The participants shall agree, in writ- (b) Except as provided by paragraph ing, to make available to the sponsor, (c) of this section, interested persons the Attorney General, the Chairman of may attend any part of a meeting held the Federal Trade Commission and the to develop or carry out a voluntary Director of the Federal Emergency agreement pursuant to these rules. Management Agency for inspection and (c) The sponsor of a voluntary agree- copying at reasonable times and upon ment may withhold material described reasonable notice any item that this in this section from disclosure and re- section requires them to maintain. strict attendance at meetings only on (2) Any person required by this para- the grounds specified in: graph to maintain records shall indi- (1) Section 552(b)(1) of 5 U.S.C., which cate specific portions, if any, that such applies to matter specifically required person believes should not be disclosed by Executive Order to be kept secret in to the public pursuant to § 332.5 of this the interest of the national defense or part, and the reasons therefor. Any foreign policy. This section shall be in- item made available to a Government terpreted to included matter protected official named in this paragraph shall under Executive Order 12065, dated be available from that official for pub- June 28, 1978 (3 CFR 1979–1975 Comp. p. lic inspection and copying to the ex- 678), establishing categories and cri- tent set forth in § 332.5 of this part. teria for classification; and (2) Section 552(b)(3) of 5 U.S.C., which § 332.4 Termination or modifying vol- applies to matter specifically exempted untary agreements. from disclosure by statute; and The Attorney General may terminate (3) Section 552(b)(4) of 5 U.S.C., which or modify a voluntary agreement, in applies to trade secrets and commer- writing, after consultation with the cial or financial information obtained Chairman of the Federal Trade Com- from a person as privileged and con- mission and the sponsor of the agree- fidential. ment. The sponsor of the agreement, with the concurrence of or at the direc- PART 333 [RESERVED] tion of the Director of the Federal Emergency Management Agency, may PART 334—GRADUATED terminate or modify a voluntary agree- MOBILIZATION RESPONSE ment, in writing, after consultation with the Attorney General and the Sec. Chairman of the Federal Trade Com- 334.1 Purpose. mission. Any person who is a party to 334.2 Policy. a voluntary agreement may terminate 334.3 Background.

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334.4 Definitions. programs to provide appropriate and 334.5 GMR system description. effective response options for consider- 334.6 Department and agency responsibil- ation in reacting to ambiguous and ities. 334.7 Reporting. specific warnings. (c) Departments and agencies will be AUTHORITY: National Security Act of 1947, provided early warning information de- as amended, 50 U.S.C. 404; Defense Produc- veloped by the intelligence community tion Act of 1950, as amended, 50 U.S.C. app. 2061 et seq; E.O. 12148 of July 20, 1979, 3 CFR, and policy statements of the President. 1979 Comp., p. 412; E.O. 10480 of Aug. 14, 1953, (d) Emergency resource preparedness 3 CFR, 1949–53 Comp., p. 962; E.O. 12472 of planning is essential to ensure that the Apr. 3, 1984; 3 CFR, 1984 Comp., p. 193; E.O. nation is adequately prepared to re- 12656 of Nov. 18, 1988, 53 FR 47491. spond to potential national emer- SOURCE: 55 FR 1821, Jan. 19, 1990, unless gencies. Such emergency resource pre- otherwise noted. paredness planning requires an exchange of information and planning § 334.1 Purpose. factors among the various departments (a) Provides policy guidance pursuant and agencies responsible for different to the Defense Production Act of 1950, resource preparedness actitivies. as amended; section 1–103 of Executive (e) To carry out their emergency Order 12148, as amended, which in- planning activities, civilian depart- cludes functions continued from E.O. ments and agencies require the Depart- 11051; section 104(f) of Executive Order ment of Defense’s (DOD) assessment of 12656; and part 2 of Executive Order potential military demands that would 10480. be made on the economy in a full range (b) Establishes a Graduated Mobiliza- of possible national security emer- tion Response (GMR) system for devel- gencies. Similarly, DOD planning oping and implementing mobilization should be conducted using planning re- actions that are responsive to a wide gimes consistent with the policies and range of national security threats and plans of the civilian resource depart- ambiguous or specific warning indica- ments and agencies. tors. GMR provides for a coherent deci- (f) Under section 104(c) of Executive sion making process with which to pro- Order 12656, FEMA is responsible for ceed with specific responses to an iden- coordinating the implementation of tified crisis or emergency. national emergency preparedness pol- (c) Provides guidance to the Federal icy with Federal departments and departments and agencies for devel- agencies and with state and local gov- oping plans that are responsive to a ernments and, therefore, is responsible GMR system and for preparing costed for developing a system of planning option packages, as appropriate, to im- procedures for integrating the emer- plement the plans. gency preparedness actions of federal, state and local governments. § 334.2 Policy. (g) Federal departments and agencies (a) As established in Executive Order shall design their preparedness meas- 12656, the policy of the United States is ures to permit a rapid and effective to have sufficient emergency response transition from routine to emergency capabilities at all levels of government operations, and to make effective use to meet essential defense and civilian of the period following initial indica- needs during any national security tion of a probable national security emergency. Accordingly, each Federal emergency. This will include: department and agency shall prepare (1) Development of a system of emer- its national security emergency pre- gency actions that defines alternatives, paredness plans and programs to re- processes, and issues to be considered spond adequately and in a timely man- during various stages of national secu- ner to all national security emer- rity emergencies; and gencies. (2) Identification of actions that (b) As part of emergency response, could be taken at the Federal and local the GMR system should be incor- levels of government in the early porated in each department’s and agen- stages of a national security emer- cy’s emergency preparedness plans and gency or pending national security

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emergency to mitigate the impact of or the impact of an event or crisis and re- reduce significantly the leadtime asso- duce significantly the lead time associ- ciated with full emergency action im- ated with a full national emergency ac- plementation. tion implementation. (b) National security emergency is any § 334.3 Background. occurrence, including natural disaster, (a) The GMR system is designed to military attack, technological emer- take into account the need to mobilize gency, or other emergency, that seri- the Nation’s resources in response to a ously degrades or threatens the na- wide range of crisis or emergency situ- tional security of the United States. ations. GMR is a flexible decision mak- (c) Mobilization is the process of mar- ing process of preparedness and re- shalling resources, both civil and mili- sponse actions which are appropriate tary, to respond to and manage a na- to warning indicators or an event. tional security emergency. Thus, GMR allows the government, as (d) GMR Plans are those agency docu- a whole, to take small or large, often ments that describe, in general, the ac- reversible, steps to increase its nations that an agency could take in the tional security emergency prepared- early stages of a national security ness posture. emergency, or upon receipt of warning (b) Crises, especially those resulting information about a possible national in major military activities, always security emergency. These actions have some political or economic con- would be designed to mitigate the im- text. As the risks of military action in- pact of, or reduce significantly, the crease, nations undertake more exten- lead times associated with full emer- sive preparations over a longer perod of gency action implementation. Such time to increase their military power. plans are required by section 201(4)(b) Such preparations by potential adver- of Executive Order 12656. saries shape the nature and gravity of (e) A Costed Option Package is a docu- the threat as well as its likelihood and ment that describes in detail a par- timing of occurrence. These measures ticular action that an agency could permit the development of reliable in- take in the early stages of a national dicators of threat at an early time in security emergency. The general con- the evolution of a crisis. Depending on tent of a GMR costed option package the nature of the situation or event includes alternative response options; and the nation involved, these early the resource implications of each op- warning indicators may emanate from tion; shortfalls, costs, timeframes and the political, socio-economic and/or in- political feasibility. dustrial sectors. (c) The GMR system enables the na- § 334.5 GMR system description. tion to approach mobilization planning The GMR system contains three and actions as part of the deterrent re- stages of mobilization activity (addi- sponse capability and to use it to re- tional intermediate GMR stages may duce the probability of conflict. Alter- be developed). For example, a Federal natively, if deterrence should fail, the department or agency might divide GMR system would enable the nation ‘‘Crisis Management’’ into two, three, to undertake a series of phased actions or more levels as suits its needs. intended to increase its ability to meet (a) Stage 3, Planning and Preparation. defense and essential civilian require- During the planning and preparation ments. The GMR system integrates the stage, Federal departments and agen- potential strength of the national cies develop their GMR plans and economy into U.S. national security maintain capability to carry out their strategy. mobilization-related responsibilities in accordance with section 201 of Execu- § 334.4 Definitions. tive Order 12656. General types of prob- (a) Graduated Mobilization Response lems likely to arise in a crisis situation (GMR) is a system for integrating mo- are identified along with possible bilization actions designed to respond methods for dealing with them. Invest- to ambiguous and/or specific warnings. ment programs can be undertaken to These actions are designed to mitigate overcome identified problems.

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(b) Stage 2, Crisis Management. During § 334.6 Department and agency re- the crisis management stage, GMR sponsibilities. plans are reviewed and capabilities will (a) During Stage 3, each Federal de- be re-examined in light of an actual partment and agency with mobilization event or crisis perceived to be emerg- responsibilities will develop GMR plans ing. as part of its emergency preparedness (1) Federal departments and agencies planning process in order to meet pos- may need to gather additional data on sible future crisis. Costed Option Pack- selected resources or increase their ages will be developed for actions that preparedness activities. Costed Option may be necessary in the early warning Packages may need to be updated or period. Option packages will be renew ones prepared for the response op- viewed, focused and refined during tion measures in each of the depart- Stage 2 to meet the particular emer- ment’s and agency’s area of responsi- gency. bility. For example, when it appears (b) Each department and agency likely that increased national re- should identify response actions appro- sources may be required, resource read- priate for the early stage of any crisis iness could be improved through the or emergency situation, which then procurement of essential long lead will be reviewed, focused and refined in time items, especially those that can Stage 2 for execution, as appropriate. be used even if the situation does not GMR plans should contain a menu of escalate. In general, long lead time costed option packages that provide de- preparedness actions would be consid- tails of alternative measures that may ered for implementation at this time. be used in an emergency situation. (2) Many preparedness actions at this (c) FEMA will provide guidance pur- stage would be handled through re- suant to Executive Order 12656 and will programming, but the Costed Option coordinate GMR plans and option pack- Packages may also require new fund- ages of DOD and the civilian depart- ing. ments and agencies to ensure consist- (3) If the crisis worsens, and prior to ency and to identify areas where addi- the declaration of national emergency, tional planning or investment is need- it may be necessary to surge certain ed. production and stockpile items for fu- (d) During State 2, FEMA will coordi- ture use. nate department and agency rec- (c) Stage 1, National Emergency/War. ommendations for action and forward During a national emergency or dec- them to the National Security Advisor laration of war, mobilization of all na- to make certain that consistency with tional resources escalates and GMR the overall national strategy planning will be subsumed into the overall mobi- is achieved. lization effort. As military require- (e) Departments and agencies will re- ments increase, the national resources fine their GMR plans to focus on the would increasingly be focused on the specific crisis situation. Costed option national security emergency. This packages should be refined to identify would involve diverting non-essential the resources necessary for the current demand for scarce resources from crisis, action taken to obtain those re- peacetime to defense uses, and con- sources, and GMR plans implemented verting industry from commercial to consistent with the seriousness of the military production. Both surge pro- crisis. duction and expansion of the nation’s (f) At Stage 1, declaration of national productive capacity may also be nec- emergency or war, the crisis is under essary. Supplemental appropriations the control of NSC or other central au- may be required for most Federal de- thority, with GMR being integrated partments and agencies having na- into partial, full or total mobilization. tional security emergency responsibil- At this point the more traditional ities. mechanisms of resource mobilization

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are pursued, focusing on resource allo- 350.14 Amendments to State plans. cation and adjudication with cog- 350.15 Appeal procedures. nizance of the essential civilian de- AUTHORITY: 42 U.S.C. 5131, 5201, 50 U.S.C. mand. app. 2253(g); Sec. 109 Pub. L. 96–295; Reorga- (g) Programs and plans developed by nization Plan No. 3 of 1978; E.O. 12127; E.O. the departments and agencies under 12148. this guidance should be shared, as ap- SOURCE: 48 FR 44335, Sept. 28, 1983, unless propriate, with States, local govern- otherwise noted. ments and the private sector to provide a baseline for their development of sup- § 350.1 Purpose. porting programs and plans. The purpose of the regulation in this § 334.7 Reporting. part is to establish policy and procedures for review and approval by the The Director of FEMA shall provide Federal Emergency Management Agen- the President with periodic assess- cy (FEMA) of State and local emer- ments of the Federal departments and gency plans and preparedness for the agencies capabilities to respond to na- offsite effects of a radiological emer- tional security emergencies and peri- gency which may occur at a commer- odic reports to the National Security cial nuclear power facility. Review and Council on the implementation of the approval of these plans and prepared- national security emergency preparedness involves preparation of findings ness policy. Pursuant to section 201(15) and determinations of the adequacy of of Executive Order 12656, departments the plans and capabilities of State and and agencies, as appropriate, shall consult and coordinate with the Director local governments to effectively imple- of FEMA to ensure that their activities ment the plans. and plans are consistent with current § 350.2 Definitions. National Security Council guidelines and policies. An evaluation of the Fed- As used in this part, the following eral departments and agencies partici- terms are defined: pation in the graduated mobilization (a) Director means the Director, response program may be included in FEMA, or designee; these reports. (b) Regional Director means a Re- gional Director of FEMA, or designee; PARTS 335–349 [RESERVED] (c) Associate Director means the Asso- ciate Director, State and Local Pro- PART 350—REVIEW AND AP- grams and Support, FEMA, or des- PROVAL OF STATE AND LOCAL ignee; (d) FEMA means the Federal Emer- RADIOLOGICAL EMERGENCY gency Management Agency; PLANS AND PREPAREDNESS (e) NRC means the Nuclear Regu- latory Commission; Sec. 350.1 Purpose. (f) EPZ means Emergency Planning 350.2 Definitions. Zone. 350.3 Background. (g) Emergency Planning Zone (EPZ) is 350.4 Exclusions. a generic area around a commercial 350.5 Criteria for review and approval of nuclear facility used to assist in offsite State and local radiological emergency emergency planning and the develop- plans and preparedness. ment of a significant response base. 350.6 Assistance in development of State and local plans. For commercial nuclear power plants, 350.7 Application by State for review and EPZs of about 10 and 50 miles are delin- approval. eated for the plume and ingestion expo- 350.8 Initial FEMA action on State plan. sure pathways respectively. 350.9 Exercises. (h) Plume Exposure Pathway refers to 350.10 Public meeting in advance of FEMA whole body external exposure to approval. 350.11 Action by FEMA Regional Director. gamma radiation from the plume and 350.12 FEMA Headquarters review and ap- from deposited materials and inhala- proval. tion exposure from the passing radio- 350.13 Withdrawal of approval. active plume. The duration of primary

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exposures could range in length from those with plants scheduled for oper- hours to days. ation in the near future. (i) Ingestion Exposure Pathway refers (b) This assignment was given to to exposure primarily from ingestion of FEMA because of its responsibilities water or foods such as milk and fresh under Executive Order 12148 to estab- vegetables that have been contami- lish Federal policies for and coordinate nated with radiation. The duration of civil emergency planning, management primary exposure could range from and assistance functions and to rep- hours to months. resent the President in working with (j) Full participation refers to an exer- State and local governments and the cise in which: (1) State and local gov- private sector to stimulate vigorous ernment emergency personnel are en- participation in civil emergency pre- gaged in sufficient numbers to verify paredness programs. Under section 201 the capability to respond to the actions of the Disaster Relief Act of 1974 (42 required by the accident scenario; (2) U.S.C. 5131), and other statutory func- the integrated capability to adequately tions, the Director of FEMA is charged assess and respond to an accident at a with the responsibility to develop and commercial nuclear power plant is implement plans and programs of dis- tested; and (3) the implementation of aster preparedness. the observable portions of State and/or (c) There are two sections in the local plans is tested. NRC’s fiscal year 1982/1983 Appropria- (k) Partial participation refers to the tion Authorization (Pub. L. 97–415) that engagement of State and local govern- pertain to the scope of this rule. ment emergency personnel in an exer- (1) Section 5 provides for the issuance cise sufficient to adequately test direc- of an operating license for a commer- tion and control functions for protective action decisionmaking related to cial nuclear power plant by the NRC if emergency action levels and commu- it is determined that there exists a nication capabilities among affected State, local or utility plan which pro- State and local governments and the li- vides assurance that public health and censee. safety is not endangered by the oper- (l) Remedial exercise is one that tests ation of the facility. This section deficiencies of previous joint exercise would allow the NRC to issue an oper- that are considered significant enough ating license for such plants without to impact on the public health and FEMA-approved State and local gov- safety. ernment plans. (m) Local government refers to bor- (2) Section 11 provides for the oughs, cities, counties, municipalities, issuance of temporary licenses for op- parishes, towns, townships and other erating a utilization facility at a spe- local jurisdictions within the plume ex- cific power level to be determined by posure pathway EPZ when any of these the Commission, pending final action entities has specific roles in emergency by the Commission on the application. planning and preparedness in the EPZ. Also, this section authorizes the NRC (n) Site refers to the location at to issue temporary operating licenses which there is one or more commercial for these facilities without the comple- nuclear power plants. A nuclear power tion of the required (NRC) Commission plant is synonymous with a nuclear hearing process. A petition for such a power facility. temporary license may not be filed until certain actions are completed in- § 350.3 Background. cluding the submission of a State, local (a) On December 7, 1979, the Presi- or utility emergency response plan for dent directed the Director of FEMA to the facility. take the lead in State and local emer- (d) To carry out these responsibil- gency planning and preparedness ac- ities, FEMA is engaged in a coopera- tivities with respect to nuclear power tive effort with State and local govern- facilities. This included a review of the ments and other Federal agencies in existing emergency plans both in the development of State and local States with operating reactors and plans and preparedness to cope with

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the offsite effects resulting from radio- licensee emergency preparedness ex- logical emergencies at commercial nu- cept as these assessments and deter- clear power facilities. FEMA developed minations affect the emergency pre- and published the Federal Radiological paredness of State and local govern- Emergency Response Plan 50 FR 46542 ments. The regulation in this part ap- Nov. 8, 1985, to provide the overall supplies only to State and local planning port to State and local governments, and preparedness with respect to emer- for all types of radiological incidents gencies at commercial nuclear power including those occurring at nuclear facilities and does not apply to other power plants. facilities which may be licensed by (e) FEMA has entered into a Memo- NRC, nor to United States Govern- randum of Understanding (MOU) with ment-owned, non-licensed facilities nor the NRC to which it will furnish assess- the jurisdictions surrounding them. ments, findings and determinations as to whether State and local emergency § 350.5 Criteria for review and ap- plans and preparedness are adequate proval of State and local radio- and continue to be capable of imple- logical emergency plans and pre- mentation (e.g., adequacy and mainte- paredness. nance of procedures, training, re- (a) Section 50.47 of NRC’s Emergency sources, staffing levels and qualifica- Planning Rule (10 CFR parts 50 (appen- tion and equipment adequacy). These dix E) and 70 as amended) and the joint findings and determinations will be FEMA–NRC Criteria for Preparation and used by NRC under its own rules in Evaluation of Radiological Emergency Re- connection with its licensing and regu- sponse Plans and Preparedness in Sup- latory requirements and FEMA will port of Nuclear Power Plants (NUREG– support its findings in the NRC licens- 0654/FEMA–REP–1, Rev. 1, November ing process and related court pro- 1980) which apply insofar as FEMA is ceedings. concerned to State and local govern- (f) Notwithstanding the procedures ments, are to be used in reviewing, set forth in these rules for requesting evaluating and approving State and and reaching a FEMA administrative local radiological emergency plans and approval of State and local plans, find- preparedness and in making any findings and determinations on the current ings and determinations with respect status of emergency preparedness to the adequacy of the plans and the around particular sites may be re- capabilities of State and local govern- quested by the NRC and provided by ments to implement them. Both the FEMA for use as needed in the NRC li- planning and preparedness standards censing process. These findings and de- and related criteria contained in terminations may be based upon plans NUREG–0654/ FEMA–REP–1, Rev. 1 are currently available to FEMA or fur- to be used by FEMA and the NRC in re- nished to FEMA by the NRC through viewing and evaluating State and local the NRC/FEMA Steering Committee. government radiological emergency (g) An environmental assessment has plans and preparedness. For brevity, been prepared on which FEMA has de- only the planning standards contained termined that this rule will not have a in NUREG–0654/ FEMA–REP–1, Rev. 1 significant impact on the quality of the are presented below. human environment. (1) Primary responsibilities for emer- [48 FR 44335, Sept. 28, 1983, as amended at 51 gency response by the nuclear facility FR 34606, Sept. 30, 1986] licensee, and by State and local organizations within the Emergency Plan- § 350.4 Exclusions. ning Zones have been assigned, the The regulation in this part does not emergency responsibilities of the var- apply to, nor will FEMA apply any cri- ious supporting organizations have teria with respect to, any evaluation, been specifically established and each assessment or determination regarding principal response organization has the NRC licensee’s emergency plans or staff to respond to and augment its ini- preparedness, nor shall FEMA make tial response on a continuous basis. any similar determination with respect (2) On-shift facility licensee respon- to the integration of offsite and NRC sibilities for emergency response are

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unambiguously defined, adequate staff- for coordinated dissemination of infor- ing to provide initial facility accident mation to the public are established. response in key functional areas is (8) Adequate emergency facilities and maintained at all times, timely aug- equipment to support the emergency mentation of response capabilities is response are provided and maintained. available and the interfaces among (9) Adequate methods, systems and various onsite response activities and equipment for assessing and moni- offsite support and response activities toring actual or potential offsite con- are specified. (This standard applies sequences of a radiological emergency only to NRC licensees but is included condition are in use. here for completeness.) (10) A range of protective actions has (3) Arrangements for requesting and been developed for the plume exposure effectively using assistance resources pathway EPZ for emergency workers have been made, arrangements to ac- and the public. Guidelines for the commodate State and local staff at the choice of protective actions during an licensee’s near-site Emergency Oper- emergency, consistent with Federal ations Facility have been made and guidance, are developed and in place other organizations capable of aug- and protective actions for the ingestion menting the planned response have exposure pathway EPZ appropriate to been identified. the locale have been developed. (4) A standard emergency classifica- (11) Means for controlling radio- tion and action level scheme, the bases logical exposures, in an emergency, are of which include facility system and ef- establishd for emergency workers. The fluent parameters, is in use by the nu- means for controlling radiological ex- clear facility licensee, and State and posures shall include exposure guide- local response plans call for reliance on lines consistent with EPA Emergency information provided by facility licens- Worker and Lifesaving Activity Pro- ees for determinations of minimum ini- tective Action Guides. tial offsite response measures. (12) Arrangements are made for med- (5) Procedures have been established ical services for contaminated injured for notification, by the licensee, of individuals. State and local response organizations (13) General plans for recovery and and for the notification of emergency reentry are developed. personnel by all response organizations; the content of initial and fol- (14) Periodic exercises are (will be) lowup messages to response organiza- conducted to evaluate major portions tions and the public has been estab- of emergency response capabilities, lished; and means to provide early no- periodic drills are (will be) conducted tification and clear instruction to the to develop and maintain key skills and populace within the plume exposure deficiencies identified as a result of ex- pathway Emergency Planning Zone ercises or drills are (will be) corrected. have been established. (15) Radiological emergency response (6) Provisions exist for prompt com- training is provided to those who may munications among principal response be called upon to assist in an emer- organizations to emergency personnel gency. and to the public. (16) Responsibilities for plan develop- (7) Information is made available to ment and review and for distribution of the public on a periodic basis on how emergency plans are established, and they will be notified and what their planners are properly trained. initial actions should be in an emer- (b) In order for State of local plans gency (e.g., listening to a local broad- and preparedness to be approved, such cast station and remaining indoors), plans and preparedness must be deter- the principal points of contact with the mined to adequately protect the public news media for dissemination of infor- health and safety by providing reason- mation during an emergency (including able assurance that appropriate protec- the physical location or locations) are tive measures can be taken offsite in established in advance and procedures the event of a radiological emergency.

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§ 350.6 Assistance in development of State’s radiological emergency plan State and local plans. shall submit an application for such re- (a) An integrated approach to the de- view and approval to the FEMA Re- velopment of offsite radiological emer- gional Director of the Region in which gency plans by States, localities and the State is located. The application, the licensees of NRC with the assist- in the form of a letter from the ance of the Federal Government is the Govenor or from such other State offi- approach most likely to provide the cial as the Governor may designate, best protection to the public. Hence, shall contain one copy of the com- Federal agencies, including FEMA Re- pleted State plan, including coverage gional staff, will be made available of response in the ingestion exposure upon request to assist States and local- pathway EPZ. The application will also ities in the development of plans. include plans of all appropriate local (b) There now exists in each of the governments. The application shall ten standard Federal Regions a Re- specify the site or sites for which plan gional Assistance Committee (RAC) approval is sought. For guidance on the (formerly the Regional Advisory Com- local government plans that should be mittee) chaired by a FEMA Regional included with an application, refer to official and having members from the Part I.E. NUREG–0654/FEMA–REP–1, Nuclear Regulatory Commission, De- Rev. 1, entitled Contiguous Jurisdic- partment of Health and Human Serv- tion Governmental Emergency Plan- ices, Department of Energy, Depart- ning (see (e)). Only a State may request ment of Transportation, Environ- formal review of State or local radio- mental Protection Agency, the United logical emergency plans. States Department of Agriculture and (b) Generally, the plume exposure Department of Commerce. Whereas in pathway EPZ for nuclear power facili- 44 CFR part 351, the Department of De- ties shall consist of an area about 10 fense is listed as a potential member of miles (16 Km) in radius and the inges- the RACs, it is not listed in this rule tion exposure pathway EPZ shall con- because military nuclear facilities are sist of an area about 50 miles (80 Km) not the subject of concern. The RACs in radius. The exact size and configura- will assist State and local government tion of the EPZs surrounding a par- officials in the development of their ra- ticular nuclear power facility shall be diological emergency response plans, determined by State and local govern- and will review plans and observe exer- ments in consultation with FEMA and cises to evaluate the adequacy of these NRC taking into account such local plans and related preparedness. This conditions as demography, topography, assistance does not include the actual land characteristics, access routes and writing of State and local government local jurisdiction boundaries. The size plans by RAC members. of the EPZs may be determined by NRC (c) In accomplishing the foregoing, in consultation with FEMA on a case- the RACs will use the standards and by-case basis for gas cooled reactors criteria in NUREG–0654/FEMA–REP–1, and for reactors with an authorized Rev. 1, and will render such technical power level less than 250 Mw thermal. assistance as may be required, appro- The plans for the ingestion exposure priate to their agency mission and ex- pathway shall focus on such actions as pertise. In observing and evaluating ex- are appropriate to protect the public ercises, the RACs will identify, soon from ingesting contaminated food and after an exercise, any deficiencies ob- water. served in the planning and prepared- (c) A State may submit separately its ness effort including deficiencies in re- plans for the EPZs and the local gov- sources, training of staff, equipment, ernment plans related to individual nu- staffing levels and deficiencies in the clear power facilities. The purpose of qualifications of personnel. separate submissions is to allow approval of a State plan, and of the plans § 350.7 Application by State for review necessary for specific nuclear power fa- and approval. cilities in a multiple-facility State, (a) A State which seeks formal re- while not approving or acting on the view and approval by FEMA of the plans necessary for other nuclear

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power facilities within the State. If tions to States concerning perceived separate submissions are made, appro- gaps or deficiencies in the plans, and priate adjustments in the State plan the State may amend the plan at any may be necessary. In any event, FEMA time prior to forwarding to the Asso- approval of State plans and appropriate ciate Director of FEMA. local government plans shall be site (f) Two conditions for FEMA ap- specific. proval of State plans (including local (d) The applications shall contain a government plans) are the require- statement that the State plan, to- ments for an exercise (see § 350.9), and gether with the appropriate local for public participation (see §§ 350.9 and plans, is, in the opinion of the State, 350.10.). These activities occur during adequate to protect the public health the Regional review and prior to the and safety of its citizens living within forwarding of the plan to the Associate the emergency planning zones for the Director. nuclear power facilities included in the submission by providing reasonable as- § 350.9 Exercises. surance that State and local govern- (a) Before a Regional Director can ments can and intend to effect appro- forward a State plan to the Associate priate protective measures offsite in Director for approval, the State, to- the event of a radiological emergency. gether with all appropriate local gov- (e) FEMA and the States will make suitable arrangements in the case of ernments, must conduct a joint exer- overlapping or adjacent jurisdictions cise of that State plan, involving full 1 to permit an orderly assessment and participation of appropriate local gov- approval of interstate or interregional ernment entities, the State and the ap- plans. propriate licensee of the NRC. To the extent achievable, this exercise shall § 350.8 Initial FEMA action on State include participation by appropriate plan. Federal agencies. This exercise shall be (a) The Regional Director shall ac- observed and evaluated by FEMA and knowledge in writing within ten days by representatives of other Federal the receipt of the State application. agencies with membership on the RACs (b) FEMA shall publish a notice and by NRC with respect to licensee re- signed by the Regional Director or des- sponse. Within 48 hours of the comple- ignee in the FEDERAL REGISTER within tion of the exercise, a briefing involv- 30 days after receipt of the application, ing the exercise participants and Fed- that an application from a State has eral observers shall be conducted by been received and that copies are avail- the Regional Director to discuss the able at the Regional Office for review preliminary results of the exercise. If and copying in accordance with 44 CFR the exercise discloses any deficiencies 5.26. in the State and local plans, or the (c) The Regional Director shall fur- ability of the State and local govern- nish copies of the plan to members of ments to implement the plans, the the RAC for their analysis and evalua- FEMA representatives shall make tion. them known promptly in writing to ap- (d) The Regional Director shall make propriate State officials. To the extent a detailed review of the State plan, in- necessary, the State shall amend the cluding those of local governments, plan to incorporate recommended and assess the capability of State and changes or improvements or take other local governments to effectively imple- corrective measures, such as remedial ment the plan (e.g., adequacy and exercises,1 to demonstrate to the Re- maintenance of procedures, training, gional Director that identified weak- resources, staffing levels and qualifica- nesses have been corrected. tion and equipment adequacy). Evalua- (b) The Regional Director shall be tion and comments of the RAC mem- the FEMA official responsible for certi- bers will be used as part of the review fying to the Associate Director that an process. (e) In connection with the review, the 1 See § 350.2 for definitions of ‘‘full partici- Regional Director may make sugges- pation’’ and ‘‘remedial exercises’’.

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exercise of the State plan has been con- and NRC Regional Offices and the af- ducted, and that changes and correc- fected licensees. tive measures in accordance with para- (3) Each appropriate local govern- graph (a) of this section have been ment which has a site within its bound- made. aries or is within the 10-mile emer- (c) State and local governments that gency planning zone shall fully partici- have fully participated in a joint exer- pate in a joint exercise with the li- cise within one year prior to the effec- censee and the State at least every two tive date of this final rule will have years. For those local governments continuing approval of their radio- that have planning and preparedness logical emergency plans and prepared- responsibilities for more than one fa- ness by following the frequency indi- cility, the Regional Director may seek cated in paragraphs (c) (1) through (4) an exemption from this requirement by of this section. State and local govern- recommending alternative arrangements that have not fully participated ments for approval by the Associate in a joint exercise within one year Director. prior to the effective date of this final (4) States within the 50-mile emer- rule will follow the frequency indicated gency planning zone of a site shall ex- in paragraphs (c) (1) through (4) of this ercise their plans and preparedness re- section after completion of a joint ex- lated to ingestion exposure pathway ercise in which they have fully partici- measures at least once every five years pated. If, in developing exercise sched- in conjunction with a plume exposure ules with State and local governments pathway exercise for that site. to implement the requirements in paragraphs (c) (1) through (4) of this (5) Remedial exercises may be re- section, the Regional Director finds quired to correct deficiencies observed that unusual hardships would result, he in exercises conducted for continued may seek relief from the Associate Di- FEMA approval. Should this occur, the rector. FEMA Regional Director will deter- (1) Each State which has a commer- mine the participation required from cial nuclear power site within its the States and/or local governments. boundaries or is within the 10-mile (d) Within 48 hours of the completion plume exposure pathway Emergency of an exercise conducted for continued Planning Zone of such site shall fully FEMA approval, a briefing involving participate in an exercise jointly with the exercise participants and Federal the nuclear power plant licensee and observers shall be conducted by the Re- appropriate local governments at least gional Director to discuss the prelimi- every two years. nary results of the exercise. If the exer- (2) Each State with multiple sites cise discloses any deficiencies in the within its boundaries shall fully par- State and local plans, or the ability of ticipate in a joint exercise at some site the State and local governments to im- on a rotational basis at least every 2 plement the plans, the FEMA rep- years. When not fully participating in resentatives shall make them known an exercise at a site, the State shall promptly in writing to appropriate partially participate 2 at that site to State officials. To the extent nec- support the full participation of appro- essary, the State shall amend the plan priate local governments. Priority to incorporate recommended changes shall be given to new facilities seeking or improvements or take other correc- an operating license from the NRC and tive measures, such as remedial exer- which have not fully participated in a cises, to demonstrate to the Regional joint exercise involving the State, Director that identified weaknesses local governments and the licensee at have been corrected. The Regional Di- that site. State and local governments rector shall forward his or her evalua- will coordinate the scheduling of these tion of the exercise conducted for con- exercises with the appropriate FEMA tinued FEMA approval to the Associate Director including the certification 2 See § 350.2 for definition of ‘‘partial exer- that changes and corrective measures cise’’. have been made.

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(e) Following the exercise conducted the public. The public meeting should for continued FEMA approval, the Re- be held after the first joint (utility, gional Director shall conduct a meet- State and local governments) exercise ing in the vicinity of the nuclear power at a time mutually agreed to by State facility which will include the exercise and local authorities, licensee and participants, representatives from the FEMA and NRC Regional officials. This NRC and other appropriate Federal meeting shall be noticed in the local agencies and the public and media as newpaper with the largest circulation observers. The purpose of this meeting in the area, or other such media as the is to discuss the evaluation of the exer- Regional Director may select, on at cise. At the discretion of the Regional least two occasions, one of which is at Director, written comments from the least two weeks before the meeting public and media may be submitted at takes place and the other is within a or after the meeting. These comments few days of the meeting date. Local will be taken into consideration by the radio and television stations should be Regional Director in his or her evalua- notified of the scheduled meeting at tion. least one week in advance. Representa- (f) After FEMA approval of a State tives from NRC and other appropriate and local plan has been granted, failure Federal agencies should also be invited to exercise the State and local plans at to participate in these meetings. If, in the frequency and participation de- the judgment of the FEMA Regional scribed in this section shall be grounds Director, the public meeting or meet- for withdrawing FEMA approval. (See ings reveal deficiencies in the State § 350.13.) plan and/or the joint exercise, the Re- gional Director shall inform the State § 350.10 Public meeting in advance of of the fact together with recommenda- FEMA approval. tions for improvement. No FEMA ap- (a) During the FEMA Regional Office proval of State and local plans and pre- review of a State plan and prior to the paredness shall be made until a meet- submission by the Regional Director of ing described in this paragraph shall the evaluation of the plan and exercise have been held at or near the nuclear to the Associate Director, the FEMA power facility site for which the State Regional Director shall assure that is seeking approval. there is at least one public meeting conducted in the vicinity of the nu- § 350.11 Action by FEMA Regional Di- clear power facility. The purpose of rector. such a meeting, which may be con- (a) Upon completion of his or her re- ducted by the State or by the Regional view, including conduct of the exercise Director, shall be to: required by § 350.9 and after the public (1) Acquaint the members of the pub- meeting required by § 350.10, the Re- lic in the vicinity of each facility with gional Director shall prepare an eval- the content of the State and related uation of the State plan, including local plans, and with the conduct of the plans for local governments. Such eval- joint exercise which tested the plans; uation shall be specific with respect to (2) Answer any questions about the plans applicable to each nuclear fa- FEMA review of the plan and the exer- cility so that findings and determina- cise; tions can be made by the Associate Di- (3) Receive suggestions from the pub- rector on a site-specific basis. lic concerning improvements or (b) The Regional Director shall changes that may be necessary; and evaluate the adequacy of State and (4) Describe to the public the way in local plans and preparedness on the which the plan is expected to function basis of the criteria set forth in § 350.5, in the event of an actual emergency. and shall report the evaluation with re- (b) The Regional Director should as- spect to each of the planning standards sure that representatives from appro- mentioned therein as such apply to priate State and local government State and local plans and preparedness. agencies, and the affected utility ap- (c) The Regional Director shall for- pear at such meetings to make presen- ward the State plan together with his tations and to answer questions from or her evaluation and other relevant

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record material to the Associate Direc- the Governor(s) of the State(s), the tor. Relevant record material will in- NRC and the pertinent Regional Direc- clude the results of the exercise (i.e., tor(s), together with a statement in deficiencies noted and corrections writing explaining the reasons for the made), a summary of the deficiencies decision and requesting appropriate identified during the public meeting, plan or preparedness revision. Such recommendations made to the State statement shall be transmitted to the and commitments made by the State Governor(s) through the appropriate for effecting improvements in its plans Regional Director(s). The Associate Di- and preparedness and actions taken by rector shall immediately publish a no- the State. tice to this effect in the FEDERAL REG- ISTER. § 350.12 FEMA Headquarters review and approval. (d) The approval shall be of the State plan together with the local plans for (a) Upon receipt from a Regional Di- each nuclear power facility (including rector of a State plan, the Associate Director shall conduct such review of out-of-State facilities) for which ap- the State plan as he or she shall deem proval has been requested. FEMA may necessary. The Associate Director shall withhold approval of plans applicable arrange for copies of the plan, together to a specific nuclear power facility in a with the Regional Director’s evalua- multi-facility State, but nevertheless tion, to be made available to the mem- approve the State plan and associated bers of the Federal Radiological Pre- local plans applicable to other facili- paredness Coordinating Committee ties in a State. Approval may be with- (FRPCC) and to other offices of FEMA held for a specific site until plans for with appropriate guidance relative to all jurisdictions within the emergency any assistance that may be needed in planning zones of that site have been the FEMA review and approval process. reviewed and found adequate. (b) If, after formal submission of the (e) Within 30 days after the date of State plan and the Regional Director’s notification of approval for a par- evaluation, the Associate Director de- ticular nuclear power facility or within termines that the State plans and pre- 30 days of any statement of disapproval paredness: of a State plan, any interested person (1) Are adequate to protect the may appeal the decision of the Asso- health and safety of the public living in ciate Director to the Director; how- the vicinity of the nuclear power facil- ever, such an appeal must be made ity by providing reasonable assurance solely upon the ground that the Asso- that appropriate protective measures ciate Director’s decision, based on the can be taken offsite in the event of a available record, was unsupported by radiological emergency; and substantial evidence. (See § 350.15 for (2) Are capable of being implemented appeal procedures.) (e.g. adequacy and maintenance of procedures, training, resources, staffing § 350.13 Withdrawal of approval. levels and qualification and equipment adequacy); the Associate Director shall (a) If, at any time after granting ap- approve in writing the State plan. The proval of a State plan, the Associate Associate Director shall concurrently Director determines, on his or her own communicate this FEMA approval to initiative, motion or on the basis of in- the Governor of the State(s) in ques- formation another person supplied, tion, the NRC and the pertinent Re- that the State or local plan is no gional Director(s) and immediately longer adequate to protect public shall publish in the FEDERAL REGISTER health and safety by providing reason- a notice of this effect. able assurance that appropriate protec- (c) If, after formal submission of the tive measures can be taken, or is no State plan, the Associate Director is longer capable of being implemented, not satisfied with the adequacy of the he or she shall immediately advise the plan or preparedness with respect to a Governor of the affected State, through particular site, he or she shall concur- the appropriate Regional Director and rently communicate that decision to the NRC of that initial determination

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in writing. FEMA shall spell out in de- § 350.14 Amendments to State plans. tail the reasons for its initial deter- (a) The State may amend a plan sub- mination, and shall describe the defi- mitted to FEMA for review and ap- ciencies in the plan or the preparedness proval under § 350.7 at any time during of the State. If, after four months from the review process or may amend a the date of such an initial determina- plan at any time after FEMA approval tion, the State in question has not ei- has been granted under § 350.12. A State ther: must amend its plan in order to extend (1) Corrected the deficiencies noted, the coverage of the plan to any new nu- or (2) submitted an acceptable plan for clear power facility which becomes correcting those deficiencies, the Asso- operational after a FEMA approval or ciate Director shall withdraw approval in case of any other significant change. and shall immediately inform the NRC The State plan shall remain in effect as and the Governor of the affected State, approved while any significant change of the determination to withdraw ap- is under review. proval and shall publish in the FED- (b) A significant change is one which ERAL REGISTER and the local newspaper involves the evaluation and assessment having the largest daily circulation in of a planning standard or which in- the affected State notice of its with- volves a matter which, if presented drawal or approval. The basis upon with the plan, would need to have been which the Associate Director makes considered by the Associate Director in the determination for withdrawal of making a decision that State or local approval is the same basis used for re- plans and preparedness are: viewing plans and exercises, i.e., the (1) Adequate to protect the health planning standards and related criteria and safety of the public living in the in NUREGO654/FEMA/REP–1, Rev. 1. vicinity of the nuclear power facility (b) In the event that the State in by providing reasonable assurance that question shall submit a plan for cor- appropriate protective measures can be recting the deficiencies, the Associate taken offsite in the event of a radio- Director shall negotiate a schedule and logical emergency; and a timetable under which the State (2) Capable of being implemented. shall correct the deficiencies. If, on the (c) A significant change will be proc- agreed upon date, the deficiencies have essed in the same manner as if it were been corrected, the Associate Director an initial plan submission. However, shall withdraw the initial determina- the Regional Director may determine tion and the approval previously grant- that certain procedures, such as hold- ed shall remain valid. He or she shall ing a public meeting or a complete ex- inform the Governor(s), the NRC, the ercise, would be unnecessary. The ex- pertinent Regional Directors(s) and no- isting FEMA approval shall remain in tify the public as stated in paragraph effect while any significant changes (a) of this section. If, however, on the are under review. agreed upon date, the deficiencies are (d) Changes, such as a change in a not corrected, FEMA shall withdraw telephone number, that are not signifi- its approval and shall communicate its cant as defined in paragraphs (b) and decision to the Governor of the State (c) of this section, but are necessary to whose plan is in question, the NRC, the maintain currency of the plan, should appropriate Federal agencies and no- be forwarded to the Regional Director. tify the public as indicated above. (c) Within 30 days after the date of § 350.15 Appeal procedures. notification of withdrawal of approval (a) Any interested person may appeal of a State or local plan, any interested a decision made under §§ 350.12 and person may appeal the decision of the 350.13 of this part, by submitting to the Associate Director to the Director; Director, FEMA, a written notice of however, such an appeal must be made appeal, within 30 days after the appear- solely upon the ground that the Asso- ance in the FEDERAL REGISTER, of the ciate Director’s decision, based on the notice of decision relating to the mat- available record, was unsupported by ter being appealed. The appeal must be substantial evidence. (See § 350.15 for addressed to the Director, Federal appeal procedures.) Emergency Management Agency, 500 C

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Street, SW., Washington, DC, 20472. 351.25 The Department of Transportation. The appeal letter shall state specific 351.26 The United States Department of Ag- reasons for the appeal and include an riculture. 351.27 The Department of Defense. offer to provide documentation sup- 351.28 The Department of Commerce. porting appellate arguments. (b) Upon receipt of an appeal, the Di- AUTHORITY: 5 U.S.C. 552, Reorganization rector or the Director’s designee shall Plan No. 3 of 1978, E.O. 12127, E.O. 12148, E.O. review the file, as submitted to the As- 12241; Presidential Directive of Dec. 7, 1979. sociate Director, State and Local Pro- SOURCE: 47 FR 10759, Mar. 11, 1982, unless grams and Support, by the Regional otherwise noted. Director of the FEMA Region concerned, based on the information con- Subpart A—General tained in the file and the appeal letter, with supporting documentation. The § 351.1 Purpose. Director or the Director’s designee This part sets out Federal agency shall decide whether or not the Asso- roles and assigns tasks regarding Fed- ciate Director’s initial decision was eral assistance to State and local gov- supported by substantial evidence in ernments in their radiological emer- the file and is consistent with FEMA gency planning and preparedness ac- policy. tivities. Assignments in this part are (c) The decision of the Director or applicable to radiological accidents at the Director’s designee shall be pub- fixed nuclear facilities and transpor- lished in the FEDERAL REGISTER as the tation accidents involving radioactive final agency decision on the matter materials. and shall not be reviewable within FEMA, except upon a showing that it § 351.2 Scope. was procured by fraud or misrepresen- The emergency planning and pretation. In addition to publication in paredness responsibilities covered by the FEDERAL REGISTER, copies of the this part relate to consequences and decision shall be forwarded to the ap- activities which extend beyond the pellant, the Governor(s) of the State(s) boundaries of any fixed nuclear facility affected, the NRC and the affected li- with a potential for serious con- censee of the involved power facility. sequences and the area affected by a transportation accident involving ra- PART 351—RADIOLOGICAL EMER- dioactive materials. GENCY PLANNING AND PRE- PAREDNESS § 351.3 Limitation of scope. (a) This part covers Federal agency Subpart A—General assignments and responsibilities in connection with State and local emer- Sec. gency plans and preparedness meas- 351.1 Purpose. ures. It does not set forth criteria used 351.2 Scope. in the review and approval of these 351.3 Limitation of scope. plans and does not include any of the Subpart B—Federal Radiological Prepared- requirements associated with FEMA ness Coordinating Committee and Re- findings and determinations on the gional Assistance Committees adequacy of State and local government radiological emergency prepared- 351.10 Establishment of committees. ness. FEMA has published a separate 351.11 Functions of committees. rule on procedures and criteria for re- Subpart C—Interagency Assignments viewing and approving these plans and preparedness capabilities. Further- 351.20 The Federal Emergency Management more, this part does not set forth Fed- Agency. eral agency responsibilities or capabili- 351.21 The Nuclear Regulatory Commission. ties for responding to an accident at a 351.22 The Environmental Protection Agen- cy. fixed nuclear facility or a transpor- 351.23 The Department of Health and tation accident involving radioactive Human Services. materials. These responsibilities are 351.24 The Department of Energy. addressed in the ‘‘Federal Radiological

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Emergency Response Plan’’ (50 FR RACs will provide guidance and ori- 46542, November 8, 1985). entation to other agency members to (b) Nothing in this part authorizes assist them in carrying out their func- access to or disclosure of classified in- tions. formation required to be protected in accordance with Federal law or regula- § 351.11 Functions of committees. tion in the interest of national secu- (a) The FRPCC shall assist FEMA in rity. providing policy direction for the pro- [47 FR 10759, Mar. 11, 1982, as amended at 51 gram of Federal assistance to State FR 34606, Sept. 30, 1986] and local governments in their radiological emergency planning and pre- Subpart B—Federal Radiological paredness activities. The FRPCC will Preparedness Coordinating establish subcommittees to aid in car- Committee and Regional As- rying out its functions; e.g., research, training, emergency instrumentation, sistance Committees transportation, information, education § 351.10 Establishment of committees. and Federal response. The FRPCC will assist FEMA in resolving issues relat- (a) The Federal Radiological Pre- ing to granting of final FEMA approval paredness Coordinating Committee of a State plan. The FRPCC will co- (FRPCC) consists of the Federal Emer- ordinate research and study efforts of gency Management Agency, which its member agencies related to State chairs the Committee, Nuclear Regu- and local government radiological latory Commission, Environmental emergency preparedness to assure min- Protection Agency, Department of imum duplication and maximum bene- Health and Human Services, Depart- fits to State and local governments. ment of Energy, Department of Trans- The FRPCC will also assure that the portation, Department of Defense, research efforts of its member agencies United States Department of Agri- are coordinated with the Interagency culture, Department of Commerce and, Radiation Research Committee. where appropriate and on an ad hoc (b) The RACs will assist State and basis, other Federal departments and local government officials in the devel- agencies. In chairing the committee, opment of their radiological emergency FEMA will be responsible for assuring plans and will review these plans and that all agency assignments described observe exercises to evaluate adequacy in this rule are coordinated through of the plans. Each Federal agency the Committee and carried out with or member of the RACs will support the on behalf of State and local govern- functions of these committees by be- ments. coming knowledgeable of Federal plan- (b) The Regional Assistance Commit- ning and guidance related to State and tees (RACs), one in each of 10 standard local radiological emergency plans, of 1 Federal regions, consist of a FEMA their counterpart State organizations Regional Representative who chairs and personnel, where their agency can the Committee and representatives assist in improving the preparedness from the Nuclear Regulatory Commis- and by participating in RAC meetings. sion, Environmental Protection Agen- cy, Department of Health and Human Services, Department of Energy, De- Subpart C—Interagency partment of Transportation, United Assignments States Department of Agriculture, De- partment of Commerce and other Fed- § 351.20 The Federal Emergency Man- eral departments and agencies such as agement Agency. the Department of Defense, as appro- (a) Establish policy and provide lead- priate. The FEMA Chairperson of the ership via the FRPCC in the coordination of all Federal assistance and guid- 1 I (Boston); II (New York); III (Philadel- ance to State and local governments phia); IV (Atlanta); V (Chicago); VI (Dallas); for developing, reviewing, assessing VII (Kansas City); VIII (Denver); IX (San and testing the State and local radio- Francisco) and X (Seattle). logical emergency plans.

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(b) Issue guidance in cooperation (k) Issue guidance for establishment with other Federal agencies concerning of State and local emergency instru- their responsibilities for providing ra- mentation systems for radiation detec- diological emergency planning and pre- tion and measurement. paredness assistance to State and local (l) Provide guidance and assistance, governments. in coordination with NRC and HHS, to (c) Foster cooperation of industry, State and local governments con- technical societies, Federal agencies cerning the storage and distribution of and other constituencies in the radio- radioprotective substances and prophy- logical emergency planning and pre- lactic use of drugs (e.g., potassium io- paredness of State and local govern- dide) to reduce the radiation dose to ments. specific organs as a result of radio- (d) Develop and promulgate prepared- logical emergencies. ness criteria and guidance to State and local governments, in coordination § 351.21 The Nuclear Regulatory Com- with other Federal agencies, for the mission. preparation, review and testing of (a) Assess NRC nuclear facility (e.g., State and local radiological emergency commercial power plants, fuel proc- plans. essing centers and research reactors) (e) Provide assistance to State and licensee emergency plans for adequacy local governments in the preparation, to protect the health and safety of the review and testing of radiological public. emergency plans. (b) Verify that nuclear facility li- (f) Assess, with the assistance of censee emergency plans can be ade- other Federal agencies, the adequacy quately implemented (e.g., adequacy of State and local government emer- and maintenance of equipment, proce- gency plans and the capability of the dures, training, resources, staffing lev- State and local government officials to els and qualifications). implement them (e.g., adequacy and (c) Review FEMA’s findings and de- maintenance of equipment, procedures, terminations of State and local radio- training, resources, staffing levels and logical emergency plans for areas sur- qualifications) and report the findings rounding NRC licensed nuclear facili- and determinations to NRC. ties. (g) Review and approve State radiological emergency plans and prepared- (d) Take into account the overall ness in accordance with FEMA proce- state of emergency preparedness in dures in 44 CFR part 350. making decisions to issue operating licenses or shut down licensed operating (h) Develop, implement and maintain a program of public education and in- reactors, including the integration of formation to support State and local assessments of emergency preparedness radiological emergency plans and pre- onsite by the NRC and offsite by paredness. FEMA. (i) Develop and manage a radiological (e) Where not already established, de- emergency response training program termine, in cooperation with other to meet State and local needs, using Federal agencies, the appropriate plan- technical expertise and resources of ning bases for NRC licensed nuclear fa- other involved agencies. Develop and cilities including distances, times and field test exercise materials and co- radiological characteristics. ordinate the Federal assistance re- (f) Assist FEMA in developing and quired by States and localities in con- promulgating guidance to State and ducting exercises, including guidance local governments for the preparation for Federal observers. of radiological emergency plans. (j) Develop, with NRC and other Fed- (g) Participate with FEMA in assist- eral Agencies, representative scenarios ing State and local governments in de- from which NRC licensed facility oper- veloping their radiological emergency ators and State and local governments plans, evaluating exercises to test may select for use in testing and exer- plans and evaluating the plans and pre- cising radiological emergency plans. paredness.

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(h) Assist FEMA and DOT in the ment of Health and Human Services preparation and promulgation of guid- (HHS)/Food and Drug Administration.) ance to State and local governments (c) Assist FEMA in developing and for their use in developing the trans- promulgating guidance to State and portation portions of radiological local governments for the preparation emergency plans. of radiological emergency plans. (i) Provide representation to and sup- (d) Assist FEMA with the develop- port for the FRPCC and the RACs. ment, implementation and presen- (j) Assist FEMA in the development, tation to the extent that resources per- implementation and maintenance of mit of technical training for State and public information and education pro- local officials regarding PAGs and programs. tective actions, radiation dose assess- (k) Assist FEMA with other Federal ment and decisionmaking. agencies in the development of rep- (e) Participate with FEMA in assist- resentative scenarios from which nuclear facility operators and State and ing State and local governments in de- local governments may select for use veloping their radiological emergency in testing and exercising radiological plans, evaluating exercises to test emergency plans. plans and evaluating the plans and pre- (l) Assist FEMA in the development paredness. of guidance for State and local govern- (f) Assist FEMA in the development ments on emergency instrumentation of guidance for State and local govern- systems for radiation detection and ments on emergency instrumentation measurement. systems for radiation detection and (m) Assist FEMA with the develop- measurement. ment, implementation and presen- (g) Provide representation to and tation to the extent that resources per- support for the FRPCC and the RACs. mit of training programs for Federal, (h) Assist FEMA in developing rep- State and local radiological emergency resentative scenarios from which nu- preparedness personnel. clear facility operators and State and (n) Assist FEMA in providing guid- local governments may select for use ance and assistance to State and local in testing and exercising radiological governments concerning the storage emergency plans. and distribution of radioprotective sub- (i) Assist FEMA in the development, stances and prophylactic use of drugs implementation and maintenance of (e.g., potassium iodide) to reduce the public information and education pro- radiation dose to specific organs as a grams. result of radiological emergencies. § 351.23 The Department of Health and § 351.22 The Environmental Protection Human Services. Agency. (a) Develop and specify protective ac- (a) Establish Protective Action tions and associated guidance to State Guides (PAGs) for all aspects of radio- and local governments for human food logical emergency planning in coordi- and animal feed (in cooperation with nation with appropriate Federal agencies. the Environmental Protection Agen- (b) Prepare guidance for State and cy). local governments on implementing (b) Provide guidance and assistance PAGs, including recommendations on to State and local governments in pre- protective actions which can be taken paring programs related to mental to mitigate the potential radiation health, behavioral disturbances and ep- dose to the population. This guidance idemiology associated with radio- will be presented in the Environmental logical emergencies. Protection Agency (EPA) ‘‘Manual of (c) Assist FEMA in the development, Protective Action Guides and Protec- implementation and maintenance of tive Actions for Nuclear Incidents.’’ public information and education pro- (The preparation of PAGs related to grams to support State and local gov- human food and animal feed will be ernment radiological emergency plans done in coordination with the Depart- and preparedness.

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(d) Assist FEMA with the develop- § 351.24 The Department of Energy. ment, implementation and presen- (a) Determine the appropriate plan- tation to the extent that resources per- ning bases for the Department of En- mit of a radiological emergency train- ergy (DOE) owned and contractor oper- ing program to support State and local ated nuclear facilities (e.g., research government personnel in accident as- and weapon production facilities) in- sessment, protective actions and deci- cluding distances, time and radio- sionmaking. logical characteristics. (e) Develop and assist in providing the requisite training programs for (b) Assess DOE nuclear facility emer- State and local health, mental health gency plans for adequacy in contrib- and social service agencies. uting to the health and safety of the (f) Provide guidance to State and public. local governments on the use of radio- (c) Verify that DOE nuclear facility protective substances and prophylactic emergency plans can be adequately im- use of drugs (e.g., potassium iodide) to plemented (e.g., adequacy and mainte- reduce the radiation dose to specific nance of equipment, procedures, train- organs including dosage and projected ing, resources, staffing levels and radiation exposures at which such qualifications). drugs should be used. (d) Assist State and local govern- (g) Assist FEMA in developing and ments, within the constraints of na- promulgating guidance to State and tional security and in coordination local governments for the preparation with FEMA, in the preparation of those of radiological emergency plans. portions of their radiological emer- (h) Participate with FEMA in assist- gency plans related to DOE owned and ing State and local governments in de- contractor operated nuclear facilities veloping their radiological emergency and radioactive materials in transit. plans, evaluating exercises to test (e) Review and assess FEMA’s find- plans and evaluating the plans and pre- ings and determinations on the ade- paredness. quacy of and capability to implement (i) Provide representation to and sup- State and local radiological emergency port for the FRPCC and the RACs. plans for areas surrounding DOE nu- (j) Assist FEMA in developing rep- clear facilities. Make independent as- resentative scenarios from which nu- sessments of the overall State of plans clear facility operators and State and and preparedness. local governments may select for use (f) Serve as the lead agency for co- in testing and exercising radiological ordinating the development and emergency plans. issuance of interagency instructions (k) Assist FEMA in the development and guidance to implement the Federal of guidance for State and local govern- Radiological Monitoring and Assess- ments on emergency instrumentation ment Plan (FRMAP), which will re- systems for radiation detection and place the Interagency Radiological As- measurement. sistance Plan. The FRMAP provides (l) Assist, in cooperation with the the framework through which partici- United States Department of Agri- pating Federal agencies will coordinate culture (USDA), the State and local their emergency radiological moni- governments in the planning for the toring and assessment activities with safe production, during radiological those of State and local governments. emergencies, of human food and animal (g) Develop, maintain and improve feed in the emergency planning zones capability to detect and assess haz- around fixed nuclear facilities. ardous levels of radiation. (m) Assist FEMA, through the Inter- (h) Assist FEMA in developing and agency Radiation Research Committee, promulgating guidance to State and chaired by the Department of Health local governments for the preparation and Human Services, in the coordina- of radiological emergency plans. tion of Federal research efforts, pri- (i) Assist FEMA with the develop- marily in areas related to the bio- ment, implementation and presen- effects of radiation, applicable to State tation to the extent that resources per- and local plans and preparedness. mit of training programs for Federal,

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State and local radiological emergency way emergency planning zones around response personnel. fixed nuclear facilities. (j) Participate with FEMA in assist- (d) Develop, in coordination with ing State and local governments in de- FEMA, the HHS and other Federal veloping their radiological emergency agencies, guidance for assisting State plans, evaluating exercises to test and local governments in the produc- plans and evaluating the plans and pre- tion, processing and distribution of paredness. food resources under radiological emer- (k) Develop, with FEMA, representa- gency conditions. tive scenarios from which DOE facility (e) Assist FEMA with the develop- operators and State and local government, implementation and presen- ments may select for use in testing and tation to the extent that resources per- exercising radiological emergency mit of training programs of Federal, plans. State and local radiological emergency (l) Provide representation to and sup- personnel. port for the FRPCC and the RACs. (f) Provide representation to and sup- (m) Assist FEMA in the development port for the FRPCC and the RACs. of guidance for State and local governments on emergency instrumentation § 351.27 The Department of Defense. systems for radiation detection and (a) Determine appropriate planning measurement. bases for Department of Defense (DOD) nuclear facilities and installations § 351.25 The Department of Transpor- (e.g., missile bases, nuclear submarine tation. facilities and weapon storage sites) in- (a) Assist FEMA, along with NRC, in cluding distances, time and radio- the preparation and promulgation of logical characteristics. guidance to State and local govern- (b) Develop, with FEMA, representa- ments for their use in developing the tive scenarios from which DOD nuclear transportation portions of radiological facility commanders and State and emergency plans. local governments may select for use (b) Assist FEMA in its review and ap- in testing and exercising radiological proval of State and local radiological emergency plans. emergency plans and in the evaluation (c) Assist State and local govern- of exercises to test such plans. ments, within the constraints of na- (c) Provide guidance and materials tional security and in coordination for use in training emergency services with FEMA, in the development, re- and other response personnel for trans- view and assessment of those portions portation accidents involving radio- of their radiological emergency plans active materials and participate in related to DOD nuclear facilities and interagency planning for such training. assist State officials with planning for (d) Provide representation to and response to accidents involving DOD support for the FRPCC and the RACs. controlled radioactive materials in transit. § 351.26 The United States Department (d) Provide representation to and of Agriculture. support for the FRPCC and the RACs (a) Assist FEMA in developing and when appropriate. promulgating guidance to State and local governments for the preparation § 351.28 The Department of Commerce. of radiological emergency plans. (a) Assist State and local govern- (b) Participate with FEMA in assist- ments in determining their require- ing State and local governments in de- ments for meteorological and veloping their radiological emergency hydrological services for radiological plans, evaluating exercises to test emergencies and assist State and local plans and reviewing and evaluating the governments in preparing to meet plans and preparedness. these requirements within the limits of (c) Assist State and local govern- available resources. ments in preparing to implement pro- (b) Assist FEMA in developing and tective actions in food ingestion path- promulgating guidance to State and

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local governments for the preparation 352.24 Provision of technical assistance and of radiological emergency plans. Federal facilities and resources. (c) Participate with FEMA in assist- 352.25 Limitation on committing Federal ing State and local governments in de- facilities and resources for emergency veloping their radiological emergency preparedness. 352.26 Arrangements for Federal response in plans, evaluating exercises to test the licensee offsite emergency response plans and evaluating the plans and pre- plan. paredness. 352.27 Federal role in the emergency re- (d) Assist FEMA with the develop- sponse. ment, implementation and presen- 352.28 Reimbursement. tation to the extent that resources per- 352.29 Appeal process. mit of technical training for State and AUTHORITY: Federal Civil Defense Act of local officials in the use of 1950, as amended (50 U.S.C. app. 2251 et seq.;) meterological information in respond- Robert T. Stafford Disaster Relief and Emer- ing to radiological emergencies. gency Assistance Act, 42 U.S.C. 5121 et seq.; 31 (e) Provide representation to and U.S.C. 9701; Executive Order 12657; Executive support for the FRPCC and the RACs. Order 12148; Executive Order 12127 and Execu- (f) Assist FEMA in the development tive Order 12241. of guidance for State and local govern- SOURCE: 54 FR 31925, Aug. 2, 1989, unless ments on the exposure and location of otherwise noted. emergency instrumentation systems for radiation detection and measure- § 352.1 Definitions. ment. As used in this part, the following (g) The Federal Coordinator for Me- terms and concepts are defined: teorological Services and Supporting (a) Associate Director means the Asso- Research will, consistent with the pro- ciate Director, State and Local Pro- visions of the Office of Management grams and Support, FEMA or designee. and Budget Circular A–62, serve as the (b) Director means the Director, coordinating agent for any multi- FEMA or designee. agency meteorological aspects of as- (c) EPZ means Emergency Planning sisting State and local governments in Zone. their radiological emergency planning (d) FEMA means the Federal Emer- and preparedness. gency Management Agency. (e) NRC means the Nuclear Regu- PART 352—COMMERCIAL NU- latory Commission. CLEAR POWER PLANTS: EMER- (f) Regional Director means the Re- GENCY PREPAREDNESS PLAN- gional Director of FEMA or designee. NING (g) Local government means boroughs, cities, counties, municipalities, par- Sec. ishes, towns, townships or other local 352.1 Definitions. jurisdictions within the plume and in- 352.2 Scope, purpose and applicability. gestion exposure pathway EPZs that have specific roles in emergency plan- Subpart A—Certifications and ning and preparedness. Determinations (h) Decline or fail means a situation 352.3 Purpose and scope. where State or local governments do 352.4 Licensee certification. not participate in preparing offsite 352.5 FEMA action on licensee certification. emergency plans or have significant 352.6 FEMA determination on the commit- planning or preparedness inadequacies ment of Federal facilities and resources. and have not demonstrated the com- 352.7 Review and evaluation. mitment or capabilities to correct Subpart B—Federal Participation those inadequacies in a timely manner so as to satisfy NRC licensing require- 352.20 Purpose and scope. ments. 352.21 Participating Federal agencies. (i) Governor means the Governor of a 352.22 Functions of the Federal Radiological Preparedness Coordinating Committee State or his/her designee. (FRPCC). (j) Certification means the written 352.23 Functions of a Regional Assistance justification by a licensee of the need Committee (RAC). for Federal compensatory assistance.

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This certification is required to acti- paredness plans that are sufficient to vate the Federal assistance under this satisfy NRC licensing requirements or part. to participate adequately in the prepa- (k) Responsible local official means the ration, demonstration, testing, exer- highest elected official of an appro- cise, or use of such plans. In order to priate local government. request the assistance provided for in (l) Technical assistance means services this part, an affected nuclear power provided by FEMA and other Federal plant applicant or licensee shall certify agencies to facilitate offsite radio- in writing to FEMA that the above sit- logical emergency planning and pre- uation exists. paredness such as: Provision of support (b) The purposes of this part are as for the preparation off site radiological follows: (1) To establish policies and emergency response plans and proce- procedures for the submission of a li- dures; FEMA coordination of services censee certification for Federal assist- from other Federal agencies; provision ance under Executive Order 12657; (2) and interpretation of Federal guidance; set forth policies and procedures for provision of Federal and contract per- FEMA’s determination to accept, ac- sonnel to offer advice and rec- cept with modification, or reject the li- ommendations for specific aspects of censee certification; (3) establish a preparedness such as alert and notifica- framework for providing Federal as- tion and emergency public informa- sistance to licensees; and (4) provide tion. procedures for the review and evalua- (m) Federal facilities and resources tion of the adequacy of offsite radio- means personnel, property (land, build- logical emergency planning and pre- ings, vehicles, equipment), and oper- paredness. Findings and determina- ational capabilities controlled by the tions on offsite planning and prepared- Federal government related to estab- ness made under this part are provided lishing and maintaining radiological to the NRC for its use in the licensing emergency response preparedness. process. (n) Licensee means the utility which (c) This part applies only in instances has applied for or has received a license where Executive Order 12657 is used by from the NRC to operate a commercial a licensee and its provisions do not af- nuclear power plant. fect the validity of the emergency pre- (o) Reimbursement means the payment paredness developed by the licensee to FEMA/Federal agencies, jointly or independent of or prior to Executive severally, by a licensee and State and Order 12657. local governments for assistance and services provided in processing certifi- Subpart A—Certifications and cations and implementing Federal Determinations compensatory assistance under this part 352. § 352.3 Purpose and scope. (p) Host FEMA Regional Office means This subpart establishes policies and the FEMA Regional Office that has pri- procedures for submission by a com- mary jurisdiction by virtue of the nu- mercial nuclear power plant licensee of clear power plant being located within a certification for Federal assistance its geographic boundaries. under Executive Order 12657. It con- (q) Command and control means mak- tains policies and procedures for ing and issuing protective action deci- FEMA’s determinations, with respect sions and directing offsite emergency to a certification. It establishes a response resources, agencies, and ac- framework for providing Federal as- tivities. sistance to licensees. It also provides procedures for review and evaluation of § 352.2 Scope, purpose and applica- the adequacy of licensee offsite radio- bility. logical emergency planning and pre- (a) This part applies whenever State paredness. or local governments, either individually or together, decline or fail to pre- § 352.4 Licensee certification. pare commercial nuclear power plant (a) A licensee which seeks Federal as- offsite radiological emergency pre- sistance under this part shall submit a

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certification to the host FEMA Region of certification. Such statements shall Director that a decline or fail situation be submitted to FEMA within 10 days exists. The certification shall be in the of the date of notification provided to form of a letter from the chief execu- State and local government under tive officer of the licensee. The con- § 352.5(a). Any such statements shall be tents of this letter shall address the a part of the record and will be consid- provisions set forth in paragraphs (b) ered in arriving at recommendations or and (c) of this section. determinations made under the provi- (b) The licensee certification shall sions of this part. delineate why such assistance is needed (e) The host FEMA Regional Office based on the criteria of decline or fail shall provide, after consulting with for the relevant State or local govern- State and responsible local officials, a ments. recommended determination on wheth- (c) The licensee certification shall er a decline or fail situation exists to document requests to and responses the FEMA Associate Director within 30 from the Governor(s) or responsible days of receipt of the licensee certifi- local official(s) with respect to the ef- cation. forts taken by the licensee to secure (f) The FEMA Associate Director their participation, cooperation, com- shall make a determination on whether mitment of resources or timely correc- a decline or fail situation exists within tion of planning and preparedness fail- 45 days of receipt of the licensee cer- ures. tification and shall advise the licensee, (Approved by the Office of Management and NRC, and State and local officials. Budget (OMB) under control number 3067– (g) The times for actions set out 0201) above may be extended up to an aggregate of 30 days by the host Regional Di- § 352.5 FEMA action on licensee cer- rector or Associate Director, as appro- tification. priate. (a) Upon receiving a licensee certification, the host Regional Director § 352.6 FEMA determination on the shall immediately notify FEMA Head- commitment of Federal facilities quarters of the licensee certification. and resources. Within 5 days the host Regional Direc- (a) A licensee request for Federal fa- tor shall notify the Governor of an af- cilities and resources shall document fected State and the chief executive of- the licensee’s maximum feasible use of ficer of any local government that a its resources and its efforts to secure certification has been received, and the use of State and local government make a copy of the certification avail- and volunteer resources. able to such persons. Within 10 days, (b) Upon a licensee request for Fed- the host Regional Director shall ac- eral facilities and resources, FEMA knowledge in writing the receipt of the headquarters shall notify NRC and recertification to the licensee. quest advice from the NRC as to (b) Within 15 days of receipt of the whether the licensee has made max- certification, the Regional Director imum use of its resources and the ex- shall publish a notice in the FEDERAL tent to which the licensee has complied REGISTER that a certification from the with 10 CFR 50.47(c)(1). The host FEMA licensee has been received, and that Regional Director shall make a rec- copies are available at the Regional Of- ommendation to the FEMA Associate fice for review and copying in accord- Director on whether the provision of ance with 44 CFR 5.26. these facilities and resources is war- (c) FEMA Headquarters shall notify ranted. The FEMA Associate Director the NRC of receipt of the certification shall make a final determination as to and shall request advice from the NRC whether Federal facilities and re- on whether a decline or fail situation sources are needed. exists. (c) In making the determination (d) State and local governments may under paragraph (b) of this section, submit written statements to the host FEMA: Regional Director outlining their posi- (1) Shall work actively with the lition as to the facts stated in the letter censee, and before relying upon any

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Federal resources, shall make max- Order 12657 (E.O. 12657) has been re- imum feasible use of the licensee’s own quested. This subpart: resources, which may include agree- (a) Describes the process for pro- ments with volunteer organizations viding Federal technical assistance to and other government entities and the licensee for developing its offsite agencies; and emergency response plan after an af- (2) Shall assume that, in the event of firmative determination on the li- an actual radiological emergency or censee certification under subpart A (44 disaster, State and local authorities CFR 352.5(f)); would contribute their full resources (b) Describes the process for pro- and exercise their authorities in ac- viding Federal facilities and resources cordance with their duties to protect to the licensee after a determination the public and would act generally in under subpart A (44 CFR 352.6(d)) that conformity with the licensee’s radio- Federal resources are required; logical emergency preparedness plan. (c) Describes the principal response (d) The FEMA Associate Director functions which Federal agencies may shall make a determination on the be called upon to provide; need for and commitment of Federal (d) Describes the process for allo- facilities and resources. The FEMA de- cating responsibilities among Federal termination shall be made in consulta- agencies for planning site-specific tion with affected Federal agencies and emergency response functions; and in accordance with 44 CFR 352.21. (e) Provides for the participation of FEMA shall inform the licensee, the Federal agencies, including the mem- States and affected local governments bers of the FRPCC and the RACs. in writing of the Federal support which will be provided. This information § 352.21 Participating Federal agencies. shall identify Federal agencies that are to provide Federal support, the extent (a) FEMA may call upon any Federal and purpose of the support to be pro- agency to participate in planning for vided, the Federal facilities and re- the use of Federal facilities and resources to be committed and the limi- sources in the licensee offsite emer- tations on their use. The provision of gency response plan. the identified Federal support shall be (b) FEMA may call upon the fol- made under the policies and procedures lowing agencies, and others as needed, of subpart B of this part. to provide Federal technical assistance and Federal facilities and resources: § 352.7 Review and evaluation. (1) Department of Commerce; FEMA shall conduct its activities (2) Department of Defense; and make findings under this part in a (3) Department of Energy; manner consistent with 44 CFR part 350 (4) Department of Health and Human to the extent that those procedures are Services; appropriate and not inconsistent with (5) Department of Housing and Urban the intent and procedures required by Development; E.O. 12657. This Order shall take prece- (6) Department of the Interior; dence, and any inconsistencies shall be (7) Department of Transportation; resolved under the procedures in the (8) Environmental Protection Agen- NRC/FEMA Memorandum of Under- cy; standing (MOU) on planning and pre- (9) Federal Communications Commis- paredness. (50 FR 15485, April 18, 1985) sion; (10) General Services Administration; (11) National Communications Sys- Subpart B—Federal Participation tem; (12) Nuclear Regulatory Commission; § 352.20 Purpose and scope. (13) United States Department of Ag- This subpart establishes policy and riculture; and procedures for providing support for (14) Department of Veterans Affairs. offsite radiological emergency plan- (c) FEMA is the Federal agency pri- ning and preparedness in a situation marily responsible for coordinating where Federal support under Excutive Federal assistance. FEMA may enter

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into Memorandums of Understanding FEMA–REP–1, Rev. 1 and Supp. 1.1 or (MOU) and other instruments with approved alternative approaches, and Federal agencies to provide technical RAC members shall render such tech- assistance and to arrange for the com- nical assistance as appropriate to their mitment and utilization of Federal fa- agency mission and expertise. cilities and resources as necessary. (d) Following determination under FEMA also may use a MOU to delegate subpart A (44 CFR 352.6(d)) that Fed- to another Federal agency, with the eral facilities and resources are needed, consent of that agency, any of the the RAC will assist FEMA in identi- functions and duties assigned to fying agencies and specifying the Fed- FEMA. Following review and approval eral facilities and resources which the by OMB, FEMA will publish such docu- agencies are to provide. ments in the FEDERAL REGISTER. § 352.24 Provision of technical assistance and Federal facilities and re- § 352.22 Functions of the Federal Radi- sources. ological Preparedness Coordinating Committee (FRPCC). (a) Under a determination under subpart A (44 CFR 352.5(f) and 352.4(e)) that Under 44 CFR part 351, the role of the a decline or fail situation exists, FEMA FRPCC is to assist FEMA in providing and other Federal agencies will provide policy direction for the program of technical assistance to the licensee. technical assistance to State and local Such assistance may be provided dur- governments in their radiological ing the pendency of an appeal under emergency planning and preparedness § 352.29. activities. Under this subpart, the role (b) The applicable criteria for the use of the FRPCC is to provide advice to of Federal facilities and resources are FEMA regarding Federal assistance set forth in subpart A (44 CFR and Federal facilities and resources for 352.6(c)(1)(2)). Upon a determination implementing subparts A and B of this under subpart A (44 CFR 352.6(d)) that part. This assistance activity is ex- Federal resources or facilities will be tended to licensees. The FRPCC will required, FEMA will consult with the assist FEMA in revising the Federal FRPCC, the RAC, the individual Fed- Radiological Emergency Response Plan eral agencies, and the licensee, to de- (FRERP). termine the extent of Federal facilities and resources that the government § 352.23 Functions of a Regional Assist- could provide, and the most effective ance Committee (RAC). way to do so. After such consultation, (a) Under 44 CFR part 351, the role of FEMA will specifically request Federal a RAC is to assist State and local gov- agencies to provide those Federal fa- ernment officials to develop their radi- cilities and resources. The Federal ological emergency plans, to review agencies, in turn, will respond to con- the plans, and to observe exercises to firm the availability of such facilities evaluate the plans. Under subparts A and resources and provide estimates of and B of this part, these technical as- their costs. (c) FEMA will inform the licensee in sistance activities are extended to the writing of the Federal support which licensee. will be provided. This information will (b) Prior to a determination under identify Federal agencies which are to subpart A (44 CFR 352.6(d)) that Fed- be included in the plan, the extent and eral facilities and resources are needed, purpose of technical assistance to be the designated RAC for the specific site provided and the Federal facilities and will assist the licensee, as necessary, in resources to be committed, and the evaluating the need for Federal facili- limitations of their use. The informa- ties and resources, in addition to pro- tion will also describe the require- viding technical assistance under ments for reimbursement to the Fed- § 352.23(a). eral Government for this support. (c) In accomplishing the foregoing, the RAC will use the standards and 1 Copy available from FEMA Distribution evaluation criteria in NUREG–0654/ Center, P.O. Box 70274 Washington, DC 20024

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(d) FEMA will coordinate the Federal § 352.26 Arrangements for Federal re- effort in implementing the determina- sponse in the licensee offsite emer- tions made under subpart A (44 CFR gency response plan. 352.5(f) and 352.6(d)) so that each Fed- Federal agencies may be called upon eral agency maintains the committed to assist the licensee in developing a li- technical assistance, facilities, and re- censee offsite emergency response plan sources after the licensee offsite emer- in areas such as: gency response plan is completed. (a) Arrangements for use of Federal FEMA and other Federal agencies will facilities and resources for response participate in training, exercises, and functions such as: drills, in support of the licensee offsite (1) Prompt notification of the emer- emergency response plan. gency to the public; (e) In carrying out paragraphs (a) (2) Assisting in any necessary evacu- through (c) of this section, FEMA will ation; keep affected State and local govern- (3) Providing reception centers or ments informed of actions taken. shelters and related facilities and services for evacuees; (Approval by the OMB under control number (4) Providing emergency medical 3067–0201) services at Federal hospitals; and § 352.25 Limitation on committing Fed- (5) Ensuring the creation and mainte- eral facilities and resources for nance of channels of communication emergency preparedness. from commercial nuclear power plant licensees to State and local govern- (a) The commitment of Federal fa- ments and to surrounding members of cilities and resources will be made the public. through the authority of the affected (b) Arrangements for transferring re- Federal agencies. sponse functions to State and local (b) In implementing a determination governments during the response in an under subpart A (44 CFR 352.6(d)), that actual emergency; and Federal facilities and resources are (c) Arrangements which may be nec- necessary for emergency preparedness, essary for FEMA coordination of the FEMA shall take care not to supplant response of other Federal agencies. State and local resources. Federal facilities and resources shall be sub- § 352.27 Federal role in the emergency stituted for those of the State and response. local governments in the licensee off- In addition to the Federal component site emergency response plan only to of the licensee offsite emergency re- the extent necessary to compensate for sponse plan described in subpart B the nonparticipation or inadequate (§ 352.26), and after complying with E.O. participation of those governments, 12657, Section 2(b)(2), which states that and only as a last resort after consulta- FEMA: tion with the Governor(s) and respon- (2) Shall take care not to supplant State sible local officials in the affected and local resources and that FEMA shall area(s) regarding State and local par- substitute its own resources for those of ticipation. State and local governments only to the ex- (c) All Federal planning activities de- tent necessary to compensate for the nonparticipation or inadequate participation of scribed in this subpart will be con- those governments, and only as a last resort ducted under the assumption that, in after appropriate consultation with the Gov- the event of an actual radiological ernors and responsible local officials in the emergency or disaster, State and local affected area regarding State and local par- authorities would contribute their full ticipation; resources and exercise their authorities FEMA shall provide for initial Federal in accordance with their duties to pro- response activities, including command tect the public from harm and would and control of the offsite response, as act, generally, in conformity with the may be needed. Any Federal response licensee’s offsite emergency response role, undertaken pursuant to this sec- plan. tion, shall be transferred to State and

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local governments as soon as feasible 353.7 Failure to pay. after the onset of an actual emergency. APPENDIX A TO PART 353—MEMORANDUM OF UNDERSTANDING BETWEEN FEDERAL § 352.28 Reimbursement. EMERGENCY MANAGEMENT AGENCY AND In accordance with Executive Order NUCLEAR REGULATORY COMMISSION 12657, Section 6(d), and to the extent AUTHORITY: 31 U.S.C. 9701; E.O. 12657 of permitted by law, FEMA will coordi- Nov. 18, 1988; 3 CFR, 1988 Comp., p. 611; 50 nate full reimbursement, either jointly U.S.C. app. 2251 note; E.O. 12148 of July 20, or severally, to the agencies per- 1979; 3 CFR, 1979 Comp., p. 412, 50 U.S.C. app. forming services or furnishing re- 2251 note. sources, from any affected licensee and SOURCE: 56 FR 9455, March 6, 1991, unless from any affected nonparticipating or otherwise noted. inadequately participating State or local government. § 353.1 Purpose. § 352.29 Appeal process. This part sets out fees charged for site-specific radiological emergency (a) Any interested party may appeal planning and preparedness services ren- a determination made by the Associate dered by the Federal Emergency Man- Director, under §§ 352.5 and 352.6 of this agement Agency, as authorized by 31 part, by submitting to the Director, U.S.C. 9701. FEMA, a written notice of appeal, within 30 days after issuance. The ap- § 353.2 Scope. peal is to be addressed to the Director, Federal Emergency Management Agen- The regulation in this part applies to cy, 500 C Street SW., Washington, DC all licensees who have applied for or 20472. The appeal letter shall state the have received a license from the Nu- specific reasons for the appeal and in- clear Regulatory Commission to oper- clude documentation to support appel- ate a commercial nuclear power plant. lant arguments. The appeal is limited to matters of record under §§ 352.5 and § 353.3 Definitions. 352.6. As used in this part, the following (b) Within 30 days of receipt of this terms and concepts are defined: letter, the FEMA Director or designee (a) FEMA means the Federal Emer- will review the record and make a final gency Management Agency. determination on the matter. (b) NRC means the Nuclear Regu- (c) Copies of this determination shall latory Commission. be furnished to the Appellant, the (c) Certification means the written State(s), affected local governments, justification by a licensee of the need and the NRC. for Federal compensatory assistance, (d) For purposes of this section, the as authorized in 44 CFR part 352 and term interested party means only a li- E.O. 12657. censee, a State or a local government, as defined in § 352.1(g). (d) Technical assistance means services provided by FEMA to facilitate offsite radiological emergency plan- PART 353—FEE FOR SERVICES IN ning and preparedness such as provi- SUPPORT, REVIEW AND AP- sion of support for the preparation of PROVAL OF STATE AND LOCAL offsite radiological emergency response GOVERNMENT OR LICENSEE RA- plans and procedures; provision of ad- DIOLOGICAL EMERGENCY vice and recommendations for specific PLANS AND PREPAREDNESS aspects of preparedness such as alert and notification and emergency public Sec. information. 353.1 Purpose. (e) Licensee means the utility which 353.2 Scope. has applied for or has received a license 353.3 Definitions. from the NRC to operate a commercial 353.4 Payment of fees. 353.5 Average cost per FEMA professional nuclear power plant. staff-hour. (f) Governor means the Governor of a 353.6 Schedule of services. State or his/her designee.

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(g) RAC means Regional Assistance logistics, exercise conduct and partici- Committee chaired by FEMA with rep- pation, evaluation, meetings and re- resentatives from the Nuclear Regu- ports; review and approval of Plan revi- latory Commission, Environmental sions that are utility-requested or ex- Protection Agency, Department of ercise inadequacy related; remedial ex- Health and Human Services, Depart- ercise, medical drill or any other exer- ment of Energy, Department of Agri- cise or drill upon which a license is culture, Department of Transportation, predicated, with regard to preparation, Department of Commerce and other review, conduct, participation, evalua- Federal Departments and agencies as tion, meetings and reports; the appropriate. issuance of interim findings pursuant (h) REP means FEMA’s Radiological to the FEMA/NRC Memorandum of Un- Emergency Preparedness Program. derstanding (MOU) (App. A of this (i) Fiscal Year means Federal fiscal part); review of utility plan submis- year commencing on the first day of sions through the NRC under the MOU; October through the thirtieth day of utility certification submission review September. under 44 CFR part 352 and follow-on ac- (j) Federal Radiological Preparedness tivities; site-specific adjudicatory pro- Coordinating Committee is the national ceedings and any other site-specific level committee chaired by FEMA with legal costs and technical assistance representatives from the Nuclear Regu- that is utility requested or exercise in- latory Commission, Environmental adequacy related. The professional Protection Agency, Department of staff rate for FY 91 is $39.00 per hour. Health and Human Services, Depart- The referenced FEMA/NRC MOU is pro- ment of Interior, Department of En- vided in this rule as appendix A. The ergy, Department of Transportation, professional staff rate for the REP Pro- United States Department of Agri- gram and related legal services will be culture, Department of Commerce and revised on a fiscal year basis using the other Federal Departments and agen- most current fiscal data available and cies as appropriate. the revised hourly rate will be published as a notice in the FEDERAL REG- § 353.4 Payment of fees. ISTER for each fiscal year if the rate in- Fees for site-specific offsite radio- creases or decreases. logical emergency plans and preparedness services and related site-specific § 353.6 Schedule of services. legal services are payable upon notifi- Recipients shall be charged the full cation by FEMA. FEMA services will cost of site-specific services based upon be billed at 6-month intervals for all the appropriate professional hourly accumulated costs on a site-specific staff rate for the FEMA services de- basis. Each bill will identify the costs scribed in this Section and for related related to services for each nuclear contractual services which will be power plant site. charged to the licensee by FEMA, at the rate and cost incurred. § 353.5 Average cost per FEMA profes- (a) When a State seeks formal review sional staff-hour. and approval by FEMA of the State’s Fees for FEMA services rendered will radiological emergency response plan be calculated based upon the costs for pursuant to 44 CFR part 350 (Review such services using a professional staff and Approval Process of State and rate per hour equivalent to the sum of Local Radiological Emergency Plans the average cost to the agency of main- and Preparedness), FEMA shall provide taining a professional staff member the services as described in 44 CFR part performing site-specific services re- 350 in regard to that request and fees lated to the Radiological Emergency will be charged for such services to the Preparedness Program, including sal- licensee, which is the ultimate bene- ary, benefits, administrative support, ficiary of FEMA services. This provi- travel and overhead. This rate will be sion does not apply where an operating charged when FEMA performs such license has been granted or the applica- services as: Development of exercise tion denied or withdrawn, except as objectives and scenarios, pre-exercise necessary to support biennial exercises

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and related activities. Fees will be review, conduct, participation, evalua- charged for all FEMA, but not other tion, meetings and reports. Federal agency activities related to (d) Utility certification submission such services, including but not limited review. When a licensee seeks Federal to the following: assistance within the framework of 44 (1) Development of exercise objec- CFR part 352 due to the decline or fail- tives and scenarios, preexercise logis- ure of a State or local government to tics, exercise conduct and participa- adequately prepare an emergency plan, tion, evaluation, meetings and reports. FEMA shall process the licensee’s cer- (2) Review of plan revisions that are exercise-inadequacy related; tification and make the determination (3) Technical assistance that is exer- whether a decline or fail situation ex- cise-inadequacy related; ists. Fees will be charged for services (4) Remedial exercise, medical drill, rendered in making the determination. or any other exercise or drill upon Upon the determination that a decline which maintenance of a license is or fail situation does exist, any serv- predicated, with regard to preparation, ices provided or secured by FEMA con- review, conduct, participation, evalua- sisting of assistance to the licensee, as tion, meetings and reports. described in 44 CFR part 352, will have (b) Interim findings. Where the NRC a fee charged for such services. seeks from FEMA under the FEMA/ (e) FEMA participation in site-spe- NRC MOU an interim finding of the cific NRC adjudicatory proceedings and status of radiological emergency plan- any other site-specific legal costs. ning and preparedness at a particular Where FEMA participates in NRC li- time for a nuclear power plant, FEMA censing proceedings and any related shall assess a fee to the licensee for court actions to support FEMA find- providing this service. The provision of ings as a result of its review and ap- this service consists of making a determination whether the plans are ade- proval of offsite emergency plans and quate to protect the health and safety preparedness, or provides legal support of the public living in the vicinity of for any other site specific FEMA ac- the nuclear power facility by providing tivities comprised in this rule, fees will reasonable assurance that appropriate be charged to the licensee for such par- protective measures can be taken off- ticipation. site in the event of a radiological emer- (f) Rendering technical assistance. gency and that such plans are capable Where FEMA is requested by a licensee of being implemented. to provide any technical assistance, or (c) NRC utility plan submissions. where a State or local government re- Fees will be charged for all FEMA but quests technical assistance in order to not other Federal agency activities re- correct an inadequacy identified as a lated to such services, including but result of a biennial exercise or any not limited to the following: other drill or exercise upon which (1) Development of exercise objec- maintenance of a license is predicated, tives and scenarios, preexercise logis- FEMA will charge such assistance to tics, exercise conduct and participation, evaluation and post-exercise the licensee for the provision of such meetings and reports. service. (2) Notice and conduct of public meeting. § 353.7 Failure to pay. (3) Regional finding and determina- In any case where there is a dispute tion of adequacy of plans and prepared- over the FEMA bill or where FEMA ness followed by review by FEMA finds that a licensee has failed to pay a Headquarters resulting in final FEMA prescribed fee required under this part, determination of adequacy of plans and procedures will be implemented in ac- preparedness, cordance with 44 CFR part 11 subpart C (4) Remedial exercise, medical drill, to effectuate collections under the or any other exercise or drill upon Debt Collection Act of 1982 (31 U.S.C. which maintenance of a license is 3711 et seq.). predicated, with regard to preparation,

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APPENDIX A TO PART 353—MEMORANDUM derstanding became effective November 1, OF UNDERSTANDING BETWEEN FED- 1980. The MOU was further revised and up- ERAL EMERGENCY MANAGEMENT dated on April 9, 1985. This MOU is a further revision to reflect the evolving relationship AGENCY AND NUCLEAR REGULATORY between NRC and FEMA and the experience COMMISSION gained in carrying out the provisions of the The Federal Emergency Management previous MOU’s. This MOU supersedes these Agency (FEMA) and the Nuclear Regulatory two earlier versions of the MOU. Commission (NRC) have entered into a new The general principles agreed to in the pre- Memorandum of Understanding (MOU) Re- vious MOU’s and reaffirmed in this MOU, are lating To Radiological Emergency Planning as follows: FEMA coordinates all Federal and Preparedness. This supersedes a memo- planning for the offsite impact of radio- randum entered into on November 1, 1980 logical emergencies and takes the lead for (published December 16, 1980, 45 FR 82713), re- assessing offsite radiological emergency re- 1 vised April 9, 1985 (published April 18, 1985, 50 sponse plans and preparedness, makes find- FR 15485), and published as Appendix A to 44 ings and determinations as to the adequacy CFR part 353. The substantive changes in the and capability of implementing offsite plans, new MOU are: (1) Self-initiated review by the and communicates those findings and deter- NRC; (2) Early Site Permit process; (3) adop- minations to the NRC. The NRC reviews tion of FEMA exercise time-frames; (4) in- those FEMA findings and determinations in corporation of FEMA definition of exercise conjunction with the NRC onsite findings for deficiency; (5) NRC commitment to work the purpose of making determinations on the with licensees in support of State and local overall state of emergency preparedness. governments to correct exercise deficiencies; These overall findings and determinations (6) correlation of FEMA actions on with- are used by NRC to make radiological health drawal of approvals under 44 CFR part 350 and safety decisions in the issuance of li- and NRC enforcement actions; and (7) dis- censes and the continued operation of li- aster-initiated reviews in situations that af- censed plants to include taking enforcement fect offsite emergency infrastructures. The actions as notices of violations, civil pen- text of the MOU follows. alties, orders, or shutdown of operating reactors. This delineation of responsibilities MEMORANDUM OF UNDERSTANDING BETWEEN avoids duplicative efforts by the NRC staff in NRC AND FEMA RELATING TO RADIO- offsite preparedness matters. However, if LOGICAL EMERGENCY PLANNING AND PRE- FEMA informs the NRC that an emergency, PAREDNESS unforeseen contingency, or other reason would prevent FEMA from providing a re- I. Background and Purposes quested finding in a reasonable time, then, in This Memorandum of Understanding consultation with FEMA, the NRC might ini- (MOU) establishes a framework of coopera- tiate its own review of offsite emergency tion between the Federal Emergency Man- preparedness. agement Agency (FEMA) and the U.S. Nu- A separate MOU dated October 22, 1980, clear Regulatory Commission (NRC) in radi- deals with NRC/FEMA cooperation and re- ological emergency response planning mat- sponsibilities in response to an actual or po- ters so that their mutual efforts will be di- tential radiological emergency. Operations rected toward more effective plans and re- Response Procedures have been developed lated preparedness measures at and in the vi- that implement the provisions of the Inci- cinity of nuclear reactors and fuel cycle fa- dent Response MOU. These documents are cilities which are subject to 10 CFR part 50, intended to be consistent with the Federal appendix E, and certain other fuel cycle and Radiological Emergency Response Plan materials licensees which have potential for which describes the relationships, roles, and significant accidental offsite radiological re- responsibilities of Federal Agencies for releases. The memorandum is responsive to the sponding to accidents involving peacetime President’s decision of December 7, 1979, that nuclear emergencies. On December 1, 1991, FEMA will take the lead in offsite planning the NRC and FEMA also concluded a sepa- and response, his request that NRC assist rate MOU in support of Executive Order 12657 FEMA in carrying out this role, and the (FEMA Assistance in Emergency Prepared- NRC’s continuing statutory responsibility ness Planning at Commercial Nuclear Power for the radiological health and safety of the Plants). public. On January 14, 1980, the two agencies en- 1 Assessments of offsite plans may be based tered into a ‘‘Memorandum of Understanding on State and local government plans sub- Between NRC and FEMA to Accomplish a mitted to FEMA under its rule (44 CFR Part Prompt Improvement in Radiological Emer- 350), and as noted in 44 CFR 350.3(f), may also gency Preparedness,’’ that was responsive to be based on plans currently available to the President’s December 7, 1979, statement. FEMA or furnished to FEMA through the A revised and updated Memorandum of Un- NRC/FEMA Steering Committee.

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II. Authorities and Responsibilities or whether offsite emergency plans submitted by the applicant are adequate, as dis- FEMA-Executive Order 12148 charges the cussed below. Director, FEMA, with the responsibility to An interim finding based only on the re- ‘‘* * * establish Federal policies for, and co- view of currently available offsite plans will ordinate, all civil defense and civil emer- include an assessment as to whether these gency planning, management, mitigation, plans are adequate when measured against and assistance functions of Executive agen- the standards and criteria of NUREG–0654/ cies’’ (Section 2–101) and ‘‘* * * represent the FEMA–REP–1, and, pending a demonstration President in working with State and local through an exercise, whether there is reason- governments and the private sector to stim- able assurance that the plans can be imple- ulate vigorous participation in civil emer- mented. The finding will indicate one of the gency preparedness, mitigation, response, following conditions: (1) Plans are adequate and recovery programs’’ (Section 2–104.). and there is reasonable assurance that they On December 7, 1979, the President, in re- can be implemented with only limited or no sponse to the recommendations of the corrections needed; (2) plans are adequate, Kemeny Commission on the Accident at but before a determination can be made as to Three Mile Island, directed that FEMA as- whether they can be implemented, correc- sume lead responsibility for all offsite nu- tions must be made to the plans or sup- clear emergency planning and response. porting measures must be demonstrated Specifically, the FEMA responsibilities (e.g., adequacy and maintenance of proce- with respect to radiological emergency pre- dures, training, resources, staffing levels and paredness as they relate to NRC are: qualifications, and equipment) or (3) plans 1. To take the lead in offsite emergency are inadequate and cannot be implemented planning and to review and assess offsite until they are revised to correct deficiencies emergency plans and preparedness for ade- noted in the Federal review. quacy. If, in FEMA’s view, the plans that are 2. To make findings and determinations as available are not completed or are not ready to whether offsite emergency plans are ade- for review, FEMA will provide NRC with a quate and can be implemented (e.g., ade- status report delineating milestones for quacy and maintenance of procedures, train- preparation of the plan by the offsite au- ing, resources, staffing levels and qualifica- thorities as well as FEMA’s actions to assist tions, and equipment). Notwithstanding the in timely development and review of the procedures which are set forth in 44 CFR plans. part 350 for requesting and reaching a FEMA An interim finding on preparedness will be administrative approval of State and local based on review of currently available plans plans, findings, and determinations on the and joint exercise results and will include an current status of emergency planning and assessment as to (1) whether offsite emer- preparedness around particular sites, re- gency plans are adequate as measured ferred to as interim findings, will be pro- against the standards and criteria of vided by FEMA for use as needed in the NRC NUREG–0654/FEMA–REP–1 and (2) whether licensing process. Such findings will be pro- the exercise(s) demonstrated that there is vided by FEMA on mutually agreed to sched- reasonable assurance that the plans can be ules or on specific NRC request. The request implemented. and findings will normally be by written An interim finding on preparedness will in- communications between the co-chairs of dicate one of the following conditions: (1) the NRC/FEMA Steering Committee. An in- There is reasonable assurance that the plans terim finding provided under this arrange- are adequate and can be implemented as ment will be an extension of FEMA’s proce- demonstrated in an exercise; (2) there are de- dures for review and approval of offsite radi- ficiencies that must be corrected; or (3) ological emergency plans and preparedness FEMA is undecided and will provide a sched- set forth in 44 CFR part 350. It will be based ule of actions leading to a decision. on the review of currently available plans 3. To assume responsibility, as a supple- and, if appropriate, joint exercise results re- ment to State, local, and utility efforts, for lated to a specific nuclear power plant site. radiological emergency preparedness train- If the review involves an application under ing of State and local officials. 10 CFR part 52 for an early site permit, the 4. To develop and issue an updated series of NRC will forward to FEMA pertinent infor- interagency assignments which delineate re- mation provided by the applicant and con- spective agency capabilities and responsibil- sult with FEMA as to whether there is any ities and define procedures for coordination significant impediment to the development and direction for emergency planning and re- of offsite emergency plans. As appropriate, sponse. [Current assignments are in 44 CFR depending upon the nature of information part 351, March 11, 1982. (47 FR 10758)] provided by the applicant, the NRC will also NRC-The Atomic Energy Act of 1954, as request that FEMA determine whether amended, requires that the NRC grant li- major features of offsite emergency plans censes only if the health and safety of the submitted by the applicant are acceptable, public is adequately protected. While the

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Atomic Energy Act does not specifically re- FEMA will appear in NRC licensing pro- quire emergency plans and related prepared- ceedings as part of the presentation of the ness measures, the NRC requires consider- NRC staff. FEMA counsel will normally ation of overall emergency preparedness as a present FEMA witnesses and be permitted, part of the licensing process. The NRC rules at the discretion of the NRC licensing board, (10 CFR 50.33, 50.34, 50.47, 50.54, and appendix to cross-examine the witnesses of parties, E to 10 CFR part 50, and 10 CFR part 52) in- other than the NRC witnesses, on matters include requirements for the licensee’s emer- volving FEMA findings and determinations, gency plans. policies, or operations; however, FEMA will Specifically, the NRC responsibilities for not be asked to testify on status reports. radiological emergency preparedness are: FEMA is not a party to NRC proceedings 1. To assess licensee emergency plans for and, therefore, is not subject to formal dis- adequacy. This review will include organiza- covery requirements placed upon parties to tions with whom licensees have written NRC proceedings. Consistent with available agreements to provide onsite support serv- resources, however, FEMA will respond in- ices under emergency conditions. formally to discovery requests by parties. 2. To verify that licensee emergency plans Specific assignment of professional respon- are adequately implemented (e.g., adequacy sibilities between NRC and FEMA counsel and maintenance of procedures, training, re- will be primarily the responsibility of the at- sources, staffing levels and qualifications, torneys assigned to a particular case. In sit- and equipment). uations where questions of professional re- 3. To review the FEMA findings and deter- sponsibility cannot be resolved by the attor- minations as to whether offsite plans are neys assigned, resolution of any differences adequate and can be implemented. will be made by the General Counsel of 4. To make radiological health and safety FEMA and the General Counsel of the NRC decisions with regard to the overall state of or their designees. NRC will request the pre- emergency preparedness (i.e., integration of siding Board to place FEMA on the service emergency preparedness onsite as deter- list for all litigation in which it is expected mined by the NRC and offsite as determined to participate. by FEMA and reviewed by NRC) such as as- Nothing in this MOU shall be construed in surance for continued operation, for issuance any way to diminish NRC’s responsibility for of operating licenses, or for taking enforce- protecting the radiological health and safety ment actions, such as notices of violations, of the public. civil penalties, orders, or shutdown of oper- B. FEMA Review of Offsite Plans and ating reactors. Preparedness III. Areas of Cooperation NRC will assist in the development and review of offsite plans and preparedness A. NRC Licensing Reviews through its membership on the Regional As- FEMA will provide support to the NRC for sistance Committees (RAC). FEMA will licensing reviews related to reactors, fuel fa- chair the Regional Assistance Committees. cilities, and materials licensees with regard Consistent with NRC’s statutory responsi- to the assessment of the adequacy of offsite bility, NRC will recognize FEMA as the radiological emergency response plans and interface with State and local governments preparedness. This will include timely sub- for interpreting offsite radiological emer- mittal of an evaluation suitable for inclusion gency planning and preparedness criteria as in NRC safety evaluation reports. they affect those governments and for re- Substantially prior to the time that a porting to those governments the results of FEMA evaluation is required with regard to any evaluation of their radiological emer- fuel facility or materials license review, NRC gency plans and preparedness. will identify those fuel and materials licens- Where questions arise concerning the in- ees with potential for significant accidental terpretation of the criteria, such questions offsite radiological releases and transmit a will continue to be referred to FEMA Head- request for review to FEMA as the emer- quarters, and when appropriate, to the NRC/ gency plans are completed. FEMA Steering Committee to assure uni- FEMA routine support will include pro- form interpretation. viding assessments, findings and determina- C. Preparation for and Evaluation of Joint tions (interim and final) on offsite plans and Exercises preparedness related to reactor license reviews. To support its findings and determina- FEMA and NRC will cooperate in deter- tions, FEMA will make expert witnesses mining exercise requirements for licensees, available before the Commission, the NRC and State and local governments. They will Advisory Committee on Reactor Safeguards, also jointly observe and evaluate exercises. NRC hearing boards and administrative law NRC and FEMA will institute procedures to judges, for any court actions, and during any enhance the review of objectives and sce- related discovery proceedings. narios for joint exercises. This review is to

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assure that both the onsite considerations of D. Withdrawal of Reasonable Assurance NRC and the offsite considerations of FEMA Finding are adequately addressed and integrated in a manner that will provide for a technically If FEMA determines under 44 CFR 350.13 of sound exercise upon which an assessment of its regulations that offsite emergency plans preparedness capabilities can be based. The or preparedness are not adequate to provide NRC/FEMA procedures will provide for the reasonable assurance that appropriate pro- availability of exercise objectives and sce- tective measures can be taken in the event narios sufficiently in advance of scheduled of radiological emergency to protect the exercises to allow enough time for adequate health and safety of the public, FEMA shall, review by NRC and FEMA and correction of as described in its rule, withdraw approval. any deficiencies by the licensee. The failure Upon receiving notification of such action of a licensee to develop a scenario that ade- from FEMA, the NRC will promptly review quately addresses both onsite and offsite FEMA’s findings and determinations and for- considerations may result in NRC taking en- mally document the NRC’s position. When, forcement actions. as described in 10 CFR 50.54(s)(2)(ii) and The FEMA reports will be a part of an in- 50.54(s)(3) of its regulations, the NRC finds terim finding on emergency preparedness; or the state of emergency preparedness does not will be the result of an exercise conducted provide reasonable assurance that adequate pursuant to FEMA’s review and approval protective measures can and will be taken in procedures under 44 CFR part 350 and NRC’s the event of a radiological emergency, the requirement under 10 CFR part 50, appendix NRC will notify the affected licensee accord- E, Section IV.F. Exercise evaluations will ingly and start the ‘‘120-day clock.’’ 2 identify one of the following conditions: (1) There is reasonable assurance that the plans E. Emergency Planning and Preparedness are adequate and can be implemented as Guidance demonstrated in the exercise; (2) there are deficiencies that must be corrected; or (3) NRC has lead responsibility for the devel- FEMA is undecided and will provide a sched- opment of emergency planning and prepared- ule of actions leading to a decision. The ness guidance for licensees. FEMA has lead schedule for issuance of the draft and final responsibility for the development of radio- exercise reports will be as shown in FEMA- logical emergency planning and preparedness REP–14 (Radiological Emergency Prepared- guidance for State and local agencies. NRC ness Exercise Manual). and FEMA recognize the need for an inte- The deficiency referred to in (2) above is grated, coordinated approach to radiological defined as an observed or identified inad- emergency planning and preparedness by equacy of organizational performance in an NRC licensees and State and local govern- exercise that could cause a finding that off- ments. NRC and FEMA will each, therefore, site emergency preparedness is not adequate provide opportunity for the other agency to to provide reasonable assurance that appro- review and comment on such guidance (in- priate protective measures can be taken in cluding interpretations of agreed joint guid- the event of a radiological emergency to protect the health and safety of the public liv- ance) prior to adoption as formal agency ing in the vicinity of a nuclear power plant. guidance. Because of the potential impact of defi- F. Support for Document Management ciencies on emergency preparedness, they System should be corrected within 120 days through appropriate remedial actions, including re- FEMA and NRC will each provide the other medial exercises, drills, or other actions. with continued access to those automatic Where there are deficiencies of the types data processing support systems which con- noted above, and when there is a potential tain relevant emergency preparedness data. for remedial actions, FEMA Headquarters will promptly (1–2 days) discuss these with NRC Headquarters. Within 10 days of the ex- 2 Per 10 CFR 50.54(s)(2)(ii), the Commission ercise, official notification of identified defi- will determine whether the reactor shall be ciencies will be made by FEMA to the State, shut down or other appropriate enforcement NRC Headquarters, and the RAC with an information copy to the licensee. NRC will for- actions if such conditions are not corrected mally notify the licensee of the deficiencies within four months. The NRC is not limited and monitor the licensee’s efforts to work by this provision of the rule, for, as stated in with State and local authorities to correct 10 CFR 50.54(s)(3), ‘‘Nothing in this paragraph the deficiencies. Approximately 60 days after shall be construed as limiting the authority official notification of the deficiency, the of the Commission to take action under any NRC, in consultation with FEMA, will assess other regulation or authority of the Commis- the progress being made toward resolution of sion or at any time other than that specified in the deficiencies. this paragraph’’ (emphasis added).

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G. Ongoing NRC Research and Development start or continued operation of an affected Programs operating nuclear power reactor. The NRC Ongoing NRC and FEMA research and de- will notify FEMA Headquarters, in writing, velopment programs that are related to of the schedule for restart of an affected re- State and local radiological emergency plan- actor and keep FEMA Headquarters in- ning and preparedness will be coordinated. formed of changes in that schedule. NRC and FEMA will each provide oppor- IV. NRC/FEMA Steering Committee tunity for the other agency to review and comment on relevant research and develop- The NRC/FEMA Steering Committee on ment programs prior to implementing them. Emergency Preparedness will continue to be the focal point for coordination of emer- H. Public Information and Education gency planning and preparedness. As dis- Programs cussed in Section I of this agreement, re- FEMA will take the lead in developing sponse activities between these two agencies public information and educational pro- are addressed in a separate MOU. The Steer- grams. NRC will assist FEMA by reviewing ing Committee will consist of an equal num- for accuracy educational materials con- ber of members to represent each agency cerning radiation, and its hazards and infor- with one vote per agency. When the Steering mation regarding appropriate actions to be Committee cannot agree on the resolution of taken by the general public in the event of an issue, the issue will be referred to NRC an accident involving radioactive materials. and FEMA management. The NRC members will have lead responsibility for licensee I. Recovery from Disasters Affecting Offsite planning and preparedness and the FEMA Emergency Preparedness members will have lead responsibility for Disasters that destroy roads, buildings, offsite planning and preparedness. The Steer- communications, transportation resources or ing Committee will assure coordination of other offsite infrastructure in the vicinity of plans and preparedness evaluation activities a nuclear power plant can degrade the capa- and revise, as necessary, acceptance criteria bilities of offsite response organizations in for licensee, State and local radiological the 10-mile plume emergency planning zone. emergency planning and preparedness. NRC Examples of events that could cause such and FEMA will then consider and adopt cri- devastation are hurricanes, tornadoes, earth- teria, as appropriate, in their respective ju- quakes, tsunamis, volcanic eruptions, major risdictions. (See Attachment 1). fires, large explosions, and riots. If a disaster damages the area around a li- V. Working Arrangements censed operating nuclear power plant to an extent that FEMA seriously questions the A. The normal point of contact for imple- continued adequacy of offsite emergency pre- mentation of the points in this MOU will be paredness, FEMA will inform the NRC the NRC/FEMA Steering Committee. promptly. Likewise, the NRC will inform B. The Steering Committee will establish FEMA promptly of any information it re- the day-to-day procedures for assuring that ceives from licensees, its inspectors, or oth- the arrangements of this MOU are carried ers, that raises serious questions about the out. continued adequacy of offsite emergency preparedness. If FEMA concludes that a dis- VI. Memorandum of Understanding aster-initiated review of offsite radiological A. This MOU shall be effective as of date of emergency preparedness is necessary to de- signature and shall continue in effect unless termine if offsite emergency preparedness is terminated by either party upon 30 days no- still adequate, it will inform the NRC in tice in writing. writing, as soon as practicable, including a schedule for conduct of the review. FEMA B. Amendments or modifications to this will also give the NRC (1) interim written re- MOU may be made upon written agreement ports of its findings, as appropriate, and (2) a by both parties. final written report on the results of its re- Approved for the U.S. Nuclear Regulatory view. Commission. The disaster-initiated review is performed Dated: June 17, 1993. to reaffirm the radiological emergency preparedness capabilities of affected offsite ju- James M. Taylor, risdictions located in the 10-mile emergency Executive Director for Operations. planning zone and is not intended to be a Dated: June 17, 1993. comprehensive review of offsite plans and Approved for the Federal Emergency Man- preparedness. agement Agency. The NRC will consider information provided by FEMA Headquarters and pertinent Richard W. Krimm, findings from FEMA’s disaster-initiated re- Acting Associate Director, State and Local view in making decisions regarding the re- Programs and Support.

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ATTACHMENT 1—FEMA/NRC STEERING Comp., p. 412; EO 12657, 53 FR 47513, 3 CFR, COMMITTEE 1988 Comp., p. 611. Purpose SOURCE: 66 FR 32577, June 15, 2001, unless otherwise noted. Assure coordination of efforts to maintain and improve emergency planning and pre- § 354.1 Purpose. paredness for nuclear power reactors as described in the NRC and FEMA rules and the This part establishes the method- NRC/FEMA MOU on Radiological Emergency ology for FEMA to assess and collect Planning and Preparedness. Coordinate con- user fees from Nuclear Regulatory sistent criteria for licensee, State and local Commission (NRC) licensees of com- emergency plans and preparedness. mercial nuclear power plants to re- Membership cover at least 100 percent of the amounts that we anticipate to obligate The NRC and FEMA consignees of this for our Radiological Emergency Pre- MOU will designate respective co-chairs for paredness (REP) Program as author- the Steering Committee. The designated co- chairs will, in turn, appoint their respective ized under Title III, Public Law 105–276, members to the Committee. 112 Stat. 2461, 2502. Public Law 105–276 established in the Treasury a Radio- Membership Changes logical Emergency Preparedness Fund, Changes to the membership of the NRC/ to be available under the Atomic En- FEMA Steering Committee may be made by ergy Act of 1954, as amended (42 U.S.C. the co-chairs representing the agency whose 2011 et. seq.), and under Executive member is being changed. Order 12657 (3 CFR, 1988 Comp., p. 611), Operating Procedures for offsite radiological emergency planning, preparedness, and response. Be- The Steering Committee will maintain a ginning in fiscal year 1999 and there- record of each meeting to include identification of issues discussed and conclusions after, the Director of FEMA must pub- reached. No meeting will be held without the lish fees to be assessed and collected, attendance and participation of at least the applicable to persons subject to co-chairs or two assigned members of each FEMA’s radiological emergency pre- agency. paredness regulations. The methodology for assessment and collection of Coordination fees must be fair and equitable and When items involving responsibilities of must reflect the full amount of costs of other NRC or FEMA offices are discussed, providing radiological emergency plan- the affected offices will be contacted as ap- ning, preparedness, response and asso- propriate. ciated services. Our assessment of fees [58 FR 47997, Sept. 14, 1993] include our costs for use of agency resources for classes of regulated persons PART 354—FEE FOR SERVICES TO and our administrative costs to collect SUPPORT FEMA’S OFFSITE RADIO- the fees. Licensees deposit fees by elec- LOGICAL EMERGENCY PRE- tronic transfer into the Radiological PAREDNESS PROGRAM Emergency Preparedness Fund in the U.S. Treasury as offsetting collections. Sec. 354.1 Purpose. § 354.2 Scope of this regulation. 354.2 Scope of this regulation. The regulation in this part applies to 354.3 Definitions. all persons or licensees who have ap- 354.4 Assessment of fees. plied for or have received from the 354.5 Description of site-specific, plume NRC: pathway EPZ biennial exercise-related (a) A license to construct or operate component services and other services. 354.6 Billing and payment of fees. a commercial nuclear power plant; 354.7 Failure to pay. (b) A possession-only license for a commercial nuclear power plant, with AUTHORITY: Reorganization Plan No. 3 of the exception of licensees that have re- 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Sec. 109, Pub. L. 96–295, 94 Stat. 780; Sec. 2901, ceived an NRC-approved exemption to Pub. L. 98–369, 98 Stat. 494; Title III, Pub. L. 10 CFR 50.54(q) requirements; 103–327, 108 Stat. 2323–2325; Pub.L. 105–276, 112 (c) An early site permit for a com- Stat. 2502; EO 12148, 44 FR 43239, 3 CFR, 1979 mercial nuclear power plant;

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(d) A combined construction permit (4) A combined construction permit and operating license for a commercial and operating license for a commercial nuclear power plant; or nuclear power plant; or (e) Any other NRC licensee that is (5) Any other NRC license that is now now or may become subject to require- or may become subject to requirements ments for offsite radiological emer- for offsite radiological emergency plan- gency planning and preparedness. ning and preparedness activities. Plume pathway EPZ means for plan- § 354.3 Definitions. ning purposes, the area within approxi- The following definitions of terms mately a 10-mile radius of a nuclear and concepts apply to this part: plant site. Biennial exercise means the joint li- RAC means Regional Assistance censee/State and local government ex- Committee chaired by FEMA with rep- ercise, evaluated by FEMA, conducted resentatives from the Nuclear Regu- around a commercial nuclear power latory Commission, Environmental plant site once every two years in con- Protection Agency, Department of formance with 44 CFR part 350. Health and Human Services, Depart- ment of Energy, Department of Agri- EPZ means emergency planning zone. culture, Department of Transportation, Federal Radiological Preparedness Co- Department of Commerce, Department ordinating Committee (FRPCC) means a of Interior, and other Federal depart- committee chaired by FEMA with rep- ments and agencies as appropriate. resentatives from the Nuclear Regu- REP means Radiological Emergency latory Commission, Environmental Preparedness, as in FEMA’s REP Pro- Protection Agency, Department of gram. Health and Human Services, Depart- Site means the location at which one ment of Interior, Department of En- or more commercial nuclear power ergy, Department of Transportation, plants (reactor units) have been, or are Department of Agriculture, Depart- planned to be built. ment of Commerce, Department of Site-specific services mean offsite radi- State, Department of Veterans Affairs, ological emergency planning, prepared- General Services Administration, Na- ness and response services provided by tional Communications System, the FEMA personnel and by FEMA con- National Aeronautics and Space Ad- tractors that pertain to a specific com- ministration and other Federal depart- mercial nuclear power plant site. ments and agencies as appropriate. Technical assistance means services FEMA means the Federal Emergency provided by FEMA to accomplish off- Management Agency. site radiological emergency planning, Fiscal Year means the Federal fiscal preparedness and response, including year, which begins on the first day of provision of support for the prepara- October and ends on the thirtieth day tion of offsite radiological emergency of September. response plans and procedures, and pro- NRC means the U. S. Nuclear Regu- vision of advice and recommendations latory Commission. for specific aspects of radiological Obligate or obligation means a legal emergency planning, preparedness and reservation of appropriated funds for response, such as alert and notification expenditure. and emergency public information. Persons or Licensee means the utility We, our, us, means and refers to or organization that has applied for or FEMA. has received from the NRC: (1) A license to construct or operate § 354.4 Assessment of fees. a commercial nuclear power plant; (a)(1) We assess user fees from licens- (2) A possession-only license for a ees using a methodology that includes commercial nuclear power plant, with charges for REP Program services pro- the exception of licensees that have re- vided by both our personnel and our ceived an NRC-approved exemption to contractors. Beginning in FY 1995, we 10 CFR 50.54(q) requirements; established a four-year cycle from FY (3) An early site permit for a com- 1995–1998 with predetermined user fee mercial nuclear power plant; assessments that were collected each

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year of the cycle. The following six- calculations and assessments through- year cycle will run from FY 1999 out the six-year cycle. We will con- through FY 2004. The fee for each site tinue to track and monitor exercise ac- consists of two distinct components: tivity during the six-year cycle, FY (i) A site-specific, biennial exercise-re- 1999–2004. We will make appropriate ad- lated component to recover the portion justments to this component to cal- of the REP program budget associated culate user fee assessments for later only with plume pathway emergency six-year cycles. planning zone (EPZ) biennial exercise- (c) Determination of site-specific, bien- related activities. We determine this nial exercise-related component for FEMA component by reviewing average bien- contract personnel. We have determined nial exercise-related activities/hours an average biennial exercise-related that we use in exercises conducted since the inception of our REP user fee cost for REP contractors for each com- program in 1991. We completed an anal- mercial nuclear power plant site in the ysis of REP Program activities/hours REP Program. We base this annualized used during the FY 1991–1995 cycle at cost (dividing the average biennial ex- the end of that four-year cycle. We will ercise-related cost by two) on the aver- make adjustments to the site-specific age costs of contract personnel in REP user fees for the next proposed FY 1999– site-specific exercise-related activities 2004 six-year cycle. since the beginning of our user fee pro- (ii) A flat fee component that is the gram (1991). We will continue to track same for each site and recovers the re- and monitor activity during the initial maining portion of the REP Program six-year cycle, FY 1999–2004, and we budgeted funding that does not include will make appropriate adjustments to biennial exercise-related activities. this component for calculation of user (2) We will assess fees only for REP fee assessments during subsequent six- Program services provided by our per- year cycles. sonnel and by our contractors, and we (d) Determination of flat fee component. will not assess fees for those services For each year of the six-year cycle, we that other Federal agencies involved in recover the remainder of REP Program the FRPCC or the RAC’s provide. budgeted funds as a flat fee component. (b) Determination of site-specific, bien- Specifically, we determine the flat fee nial exercise-related component for our component by subtracting the total of personnel. We will determine an aver- our personnel and contractor site-spe- age biennial exercise-related cost for our personnel for each commercial nu- cific, biennial exercise-related compo- clear power plant site in the REP Pro- nents, as outlined in paragraphs (a) and gram. We base this annualized cost (di- (b) of this section, from the total REP viding the average biennial exercise-rebudget for that fiscal year. We then di- lated cost by two) on the average num- vide the resulting amount equally ber of hours spent by our personnel in among the total number of licensed REP exercise-related activities for commercial nuclear power plant sites each site. We will determine the aver- (defined under 354.2) to arrive at each age number of hours using an analysis site’s flat fee component for that fiscal of site-specific exercise activity spent year. since the beginning of our user fee pro- (e) Discontinuation of charges. When gram (1991). We determine the actual we receive a copy from the NRC of user fee assessment for this component their approved exemption to 10 CFR by multiplying the average number of 50.54(q) requirements stating that off- REP exercise-related hours that we de- site radiological emergency planning termine and annualize for each site by and preparedness are no longer re- the average hourly rate in effect for quired at a particular commercial nu- the fiscal year for a REP Program em- clear power plant site, we will dis- ployee. We will revise the hourly rate continue REP Program services at that annually to reflect actual budget and site. We will no longer assess a user fee cost of living factors, but the number for that site from the beginning of the of annualized, site-specific exercise hours will remain constant for user fee next fiscal year.

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§ 354.5 Description of site-specific, NUREG–0654/FEMA–REP–1, Revision 1, plume pathway EPZ biennial exer- Supplement 1. You may obtain copies cise-related component services and of the NUREG–0654 from the Super- other services. intendent of Documents, U.S. Govern- Site-specific and other REP Program ment Printing Office. services provided by FEMA and FEMA (12) Participate in NRC adjudication contractors for which FEMA will as- proceedings and any other site-specific sess fees on licensees include the fol- legal forums. lowing: (13) Alert and notification system re- (a) Site-specific, plume pathway EPZ views. biennial exercise-related component serv- (14) Responses to petitions filed ices. (1) Schedule plume pathway EPZ under 10 CFR 2.206. biennial exercises. (15) Congressionally-initiated reviews (2) Review plume pathway EPZ bien- and evaluations. nial exercise objectives and scenarios. (16) Responses to licensee’s chal- (3) Provide pre-plume pathway EPZ lenges to FEMA’s administration of biennial exercise logistics. the fee program. (4) Conduct plume pathway EPZ bien- (17) Respond to actual radiological nial exercises, evaluations, and post ex- emergencies. ercise briefings. (18) Develop regulations, guidance, (5) Prepare, review and finalize plume planning standards and policy. pathway EPZ biennial exercise reports, (19) Coordinate with other Federal give notice and conduct public meet- agencies to enhance the preparedness ings. (6) Activities related to Medical of State and local governments for ra- Services and other drills conducted in diological emergencies. support of a biennial, plume pathway (20) Coordinate REP Program issues exercise. with constituent organizations such as (b) Flat fee component services. (1) the National Emergency Management Evaluate State and local offsite radio- Association, Conference of Radiation logical emergency plans and prepared- Control Program Directors, and the ness. Nuclear Energy Institute. (2) Schedule other than plume path- (21) Implement and coordinate REP way EPZ biennial exercises. Program training with FEMA’s Emer- (3) Develop other than plume path- gency Management Institute (EMI) to way EPZ biennial exercise objectives assure effective development and im- and scenarios. plementation of REP training courses (4) Pre-exercise logistics for other and conferences. than the plume pathway EPZ. (22) Participation of REP personnel (5) Conduct other than plume path- as lecturers or to perform other func- way EPZ biennial exercises and evaluations at EMI, conferences and work- tions. shops. (6) Prepare, review and finalize other (23) Any other costs that we incur re- than plume pathway EPZ biennial ex- sulting from our REP Program Stra- ercise reports, notice and conduct of tegic Review implementation and over- public meetings. sight working group activities. (7) Prepare findings and determina- (24) Costs associated with a transitions on the adequacy or approval of tion phase should we decide to adver- plans and preparedness. tise and award a contract for technical (8) Conduct the formal 44 CFR part support to the REP Program. Transi- 350 review process. tion phase activities may include (9) Provide technical assistance to training new contractor personnel in States and local governments. the REP Exercise Evaluation and Plan- (10) Review licensee submissions pur- ning courses, and on-the-job training suant to 44 CFR part 352. for new evaluators at a select number (11) Review NRC licensee offsite plan of REP exercises. submissions under the NRC/FEMA (25) Services associated with the as- Memorandum of Understanding on sessment of fees, billing, and adminis- Planning and Preparedness, and tration of this part.

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(26) Disaster-initiated reviews and AUTHORITY: Reorganization Plan No. 3 (3 evaluations. CFR, 1978 Comp., p. 329); E.O. 12127 (44 FR 19367); E.O. 12148 (44 FR 43239).

§ 354.6 Billing and payment of fees. SOURCE: 46 FR 1271, Jan. 6, 1981, unless oth- (a) Electronic billing and payment. We erwise noted. will deposit all funds collected under this part to the Radiological Emer- § 360.1 Purpose. gency Preparedness Fund as offsetting The Emergency Management Train- collections, which will be available for ing Program is designed to enhance the our REP Program. The Department of States’ emergency management train- the Treasury revisions to section ing program to increase State capabili- 8025.30 of publication I–TFM 6–8000 re- ties and those of local governments in quire Federal agencies to collect funds this field, as well as to give States the by electronic funds transfer when such opportunity to develop new capabili- collection is cost-effective, practicable, ties and techniques. The Program is an and consistent with current statutory ongoing intergovernmental endeavor authority. Working with the Depart- which combines financial and human ment of the Treasury we now provide resources to fill the unique training for payment of bills by electronic needs of local government, State emer- transfers through Automated Clearing gency staffs and State agencies, as well House (ACH) credit payments. as the general public. States will have (b) We will send bills that are based the opportunity to develop, implement on the assessment methodology set out and evaluate various approaches to ac- in § 354.4 to licensees to recover the full complish FEMA emergency objectives amount of the funds that we budget to as well as goals and objectives of their provide REP Program services. Licens- own. The intended result is an en- ees that have more than one site will hanced capability to protect lives and receive consolidated bills. We will for- property through planning, mitigation, ward one bill to each licensee during operational skill, and rapid response in the first quarter of the fiscal year, with case of disaster or attack on this coun- payment due within 30 days. If we ex- try. ceed our original budget for the fiscal year and need to make minor adjust- § 360.2 Description of program. ments, the adjustment will appear in the bill for the next fiscal year. (a) The program is designed for all States regardless of their present level § 354.7 Failure to pay. of involvement in training or their degree of expertise in originating and Where a licensee fails to pay a pre- presenting training courses in the past. scribed fee required under this part, we The needs of individual States, dif- will implement procedures under 44 ference in numbers to be trained, and CFR part 11, subpart C, to collect the levels of sophistication in any previous fees under the Debt Collection Act of training program have been recognized. 1982 (31 U.S.C. 3711 et seq.). It is thus believed that all States are best able to meet their own unique sit- PARTS 355–359 [RESERVED] uations and those of local government by being given this opportunity and PART 360—STATE ASSISTANCE PRO- flexibility. GRAMS FOR TRAINING AND (b) Each State is asked to submit an EDUCATION IN COMPREHENSIVE acceptable application, to be accom- EMERGENCY MANAGEMENT panied by a Training and Education (T&E) plan for a total of three years, only the first year of which will be re- Sec. 360.1 Purpose. quired to be detailed. The remaining 360.2 Description of program. two year program should be presented 360.3 Eligible applicants. in terms of ongoing training objectives 360.4 Administrative procedures. and programs. In the first year plan ap- 360.5 General provisions for State Coopera- plicants shall delineate their objectives tive Agreement. in training and education, including a

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description of the programs to be of- In this category also, it is expected fered, and identify the audiences and that the State will be responsible for numbers to be trained. Additionally, administrative and logistical require- the State is asked to note the month in ments, plus any instructional activity which the activity is to be presented, as agreed upon prior to the conduct of the location, and cost estimates includ- the course. ing instructional costs and partici- (3) Recipient conducted courses: This pant’s travel and per diem. These spe- element requires the greatest degree of cifics of date, place, and costs will be sophistication in program planning and required for the first year of any three delivery on the part of the State. year plan. A three year plan will be Training events proposed by the State submitted each year with an applica- must be justified as addressing Emer- tion. Each negotiated agreement will gency Management Training Program include a section of required training objectives. Additionally, they must ad- (Radiological Defense), and a section dress State or community needs and including optional courses to be con- indicate the State’s ability to present ducted in response to State and local and carry out the Program of Instruc- needs. tion. Courses in this category could in- (c) FEMA support to the States in clude: their training program for State and (i) Radiological Monitoring, local officials, has been designed (ii) Emergency Operations Simu- around three Program elements. Each lating Training, activity listed in the State Training (iii) Shelter Management. and Education (T&E) Plan will be de- (d) In order that this three year com- rived from the following three ele- prehensive Training and Education ments: Program planning can proceed in a timely and logical manner, each State (1) Government Conducted Courses: will be provided three target appropria- Such courses require the least capa- tion figures, one for each of the three bility on the part of the State. They program years. States will develop are usually conducted through provi- their proposals, using the target figure sions in a FEMA Regional Support to develop their scope of work. Adjust- Contract and/or FEMA or other Fed- ments in funding and the scope of work eral agency staff. The State’s respon- will be subject to negotiation before fi- sibilities fall primarily into adminis- nalization. Both the funding and the trative areas of recruiting participants, scope of work will be reviewed each making all arrangements for the facili- year and adjustments in the out years ties needed for presentation of the will reflect increased sophistication course, and the handling of the cost re- and expertise of the States as well as imbursement to participants, though changing training needs within each State staff may participate as instruc- State. tors. These courses for example in- (e)(1) FEMA funding through the clude: State Cooperative Agreement for the (i) Career Development Courses: training activities is to be used for Phases I, II, and III, travel and per diem expenses of stu- (ii) Radiological Officer and Instruc- dents selected by the States for courses tor Courses, reflecting individually needed or re- (iii) Technical Workshops on Disaster quired training. Additionally funds Recovery or Hazard Mitigation. may be expended for course materials (2) Government and recipient conducted and instructor expenses. The funding courses: Responsibilities in these provided in the State Cooperative courses fall jointly upon Federal and Agreement is not for the purpose of State government as agreed in the conducting ongoing State activities or planning for the course. Courses in this for funding staff positions to accom- category might include: plish work to be performed under this (i) Emergency Management Work- Agreement. Nor is the Agreement for shops, the purpose of purchasing equipment (ii) Multijurisdictional Emergency which may be obtained with the help of Operations Simulation Training. Personnel and Administrative funds. In

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cases where equipment has been identi- with emergency management respon- fied as needed in the scope of work sub- sibilities for that State. mitted with the application, and where (ii) A three year projected training it serves as an outreach to a new audi- and education scope of work including ence or methodology, equipment pur- both ‘‘required’’ training and ‘‘op- chase may be approved at the time of tional’’ courses. The first of the pro- initial application approval. jected three year program is to be de- (2) Allowable cost will be funded at tailed as to list of courses, description 100%. of training to be offered, audiences to [46 FR 1271, Jan. 6, 1981, as amended at 48 FR be reached and numbers to be trained. 9646, Mar. 8, 1983] Dates and locations of training as well as costs of delivery and student travel § 360.3 Eligible applicants. and per diem are to be estimated. Spe- Each of the 50 States, independent cial instructions for this portion of the commonwealths, and territories is eli- submittal will be included in the Appli- gible to participate in a State Coopera- cation Package. tive Agreement with FEMA. The de- (iii) Standard Form 270 ‘‘Request for partment, division, or agency of the Advance or Reimbursement’’ as re- State government assigned the respon- quired by OMB Circular A–102 and sibility for State training in com- FEMA General Provisions for Coopera- prehensive emergency management tive Agreements. should file the application. (d) Reporting agreements. Recipients of State Agreement benefits will report § 360.4 Administrative procedures. quarterly during the Federal Fiscal (a) Award. Each State desiring to year, directly to the Regional Director participate will negotiate the amount of their respective Regions. The report of financial support for the training should include a narrative of the train- and education program. Deciding facing programs conducted accompanied tors will be the scope of the program, a by rosters for each event, agenda, and prudent budget, the number of individ- a summary financial statement on the uals to be trained, and variety of audi- status of the Agreement funds. Any ences included which are in need of course or training activity included in training. All these factors are part of the Scope of Work and not presented as the required application as discussed in scheduled should be explained in detail § 360.2. as to the reason for cancellation in the (b) Period of agreement. Agreements quarterly report. The costs allocated to will be negotiated annually and will be this cancelled activity should be repro- in effect for a period of 12 months. grammed to another training activity Each agreement, however, will include approved by the Regional Director no a scope of work for three years as reflected in § 360.2(b) to give continuity later than the last day of the 3rd quar- to the total training and education ter, or released to the Region. An eval- program. uation of the degree to which objec- (c) Submission procedure. Each State tives were met, the effectiveness of the applicant shall comply with the fol- methodology, and the appropriateness lowing procedures: of the resources and references used (1) Issuance of a request for application: should also be included in the quar- Each State emergency management terly report. The report is due in the agency will receive a Request for Ap- Regional Office no later than the 15th plication Package from the State’s re- day of January, April, and July. A final spective FEMA Regional Director. report for the year is due the 15th of (2) How to submit: Each State shall October. submit the completed application package to the Regional Director of § 360.5 General provisions for State the Appropriate Region. Cooperative Agreement. (3) Application package: The Applica- The legal funding instrument for the tion Package should include: State Assistance Program for Training (i) A transmittal letter signed by the and Education FEMA is the State Co- State Director of the agency tasked operative Agreement. All States will

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be required to comply with FEMA Gen- and individuals. All expenditures must eral Provisions for the State Coopera- be listed in the project’s approved tive Agreement. The General Provi- budget. sions for the State Cooperative Agree- Certification represents the Gov- ment will be provided to the States as ernor’s written assurance describing part of the Request for Application the steps State agencies will take to- package. The General Provisions will ward meeting the 50 percent cash con- become part of the Cooperative Agree- tribution required following the third ment. year of program funding. The letter of certification is intended to assist the PART 361—NATIONAL EARTH- State maintain a commitment to and QUAKE HAZARDS REDUCTION plan for securing the future cash match ASSISTANCE TO STATE AND with the long-range goal of developing LOCAL GOVERNMENTS an ongoing, rather than a short-term, State program. Subpart A—Earthquake Hazards Reduction Cost Sharing and Matching represent Assistance Program that portion of project costs not borne by the Federal Government. Sec. 361.1 Purpose. Eligible Activities are activities for 361.2 Definitions. which FEMA may provide funding to 361.3 Project description. States under this section. They include 361.4 Matching contributions. specific activities or projects related to 361.5 Criteria for program assistance, earthquake hazards reduction which matching contributions, and return of fall into one or more of the following program assistance funds. 361.6 Documentation of matching contribu- categories: Preparedness and response tions. planning; mitigation planning and im- 361.7 General eligible expenditures. plementation, including inventories 361.8 Ineligible expenditures. preparation, seismic safety inspections of critical structures and lifelines, up- Subpart B [Reserved] dating building and zoning codes and ordinances to enhance seismic safety; AUTHORITY: Reorganization Plan No. 3 of and public awareness and education. 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Earthquake Hazards Reduction Act of 1977, The activities that will actually be as amended, 42 U.S.C. 7701 et seq.; E.O. 12148, funded shall be determined through in- 44 FR 43239, 3 CFR, 1979 Comp., p. 412; and dividual negotiations between FEMA E.O. 12381, 47 FR 39795, 3 CFR, 1982 Comp., p. and the States (see criteria in 207. § 361.3(3)). SOURCE: 57 FR 34869, Aug. 7, 1992, unless In-kind contributions represent the otherwise noted. value of non-cash contributions provided by the States and other non-Fed- Subpart A—Earthquake Hazards eral parties. In-kind contributions may Reduction Assistance Program be in the form of charges for real property and non-expendable personal prop- § 361.1 Purpose. erty and the value of goods and serv- This part prescribes the policies to be ices directly benefiting and specifically followed by the Federal Emergency identifiable to the States’ earthquake Management Agency (FEMA) and hazards reduction projects. States in the administration of Project means the complete set of ap- FEMA’s earthquake hazards reduction proved earthquake hazards reduction assistance program, and establishes the activities undertaken by a State, or criteria for cost-sharing. other jurisdiction, on a cost-shared basis with FEMA in a given Federal fis- § 361.2 Definitions. cal year. Cash Contribution means the State Project Period is the duration of time cash outlay (expenditure), including over which an earthquake hazards re- the outlay of money contributed to the duction project is implemented. State by other public agencies and in- State refers to the States of the stitutions, and private organizations United States of America, individually

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or collectively, the District of Colum- cording to the definition in § 361.2. The bia, the Commonwealth of Puerto Rico, categories, or program elements, listed the Virgin Islands, Guam, American therein comprise a comprehensive Samoa, the Mariana Islands, and any earthquake hazards reduction project other territory or possession of the for any given seismic hazard area. Key United States. It also means local aspects of each of these elements are as units of government or substate areas follows: that include a number of local govern- (1) Mitigation involves developing and ment jurisdictions. implementing strategies for reducing State Assistance means the funding losses from earthquakes by incor- provided under this subpart by FEMA porating principles of seismic safety through the National Earthquake Haz- into public and private decisions re- ards Reduction Program (NEHRP) to garding the siting, design, and con- States to develop State programs spe- struction of structures (i.e., updating cifically related to earthquake hazards building and zoning codes and ordi- reduction. The term also includes as- nances to enhance seismic safety), and sistance to local units of government regarding buildings’ nonstructural ele- or substate areas, such as a group of ments, contents and furnishings. Miti- several counties. gation includes preparing inventories Target Allocation is the maximum of and conducting seismic safety in- amount of FEMA earthquake program spections of critical structures and funds presumably available to an eligible State in a fiscal year. It is based lifelines, and developing plans for iden- primarily upon the total amount of tifying and retrofitting existing struc- State assistance funds available to tures that pose threats to life or would FEMA annually, the number of eligible suffer major damage in the event of a States, and a nationally standardized serious earthquake. comparison of these States’ seismic (2) Preparedness/response planning are hazard and population-at-risk. The tar- closely related and usually considered get allocation is not necessarily the as one comprehensive activity. They do amount of funding that a State will ac- differ, however, in that preparedness tually receive from FEMA. Rather, it planning involves those efforts under- represents a planning basis of negotia- taken before an earthquake to prepare tions between the State and its FEMA for or improve capability to respond to Regional Office which will ultimately the event, while response planning can determine the actual amount of earth- be defined as the planning necessary to quake State assistance to be provided implement an effective response once by FEMA. the earthquake has occurred. Prepared- ness/response planning usually con- § 361.3 Project description. siders functions related to the fol- (a) An objective of the Earthquake lowing: Hazards Reduction Act is to develop, in (i) Rescue and fire services; areas of seismic risk, improved under- (ii) Medical services; standing of and capability with respect (iii) Damage assessments; to earthquake-related issues, including (iv) Communications; methods of mitigating earthquake (v) Security; damage, planning to prevent or mini- (vi) Restoration of lifeline and utility mize earthquake damage, dissemi- services; nating warnings of earthquakes, orga- (vii) Transportation; nizing emergency services, and planning for post-earthquake recovery. To (viii) Sheltering, food and water sup- achieve this objective, FEMA has im- plies; plemented an earthquake hazards re- (ix) Public health and information duction assistance program for State services; and local governments in seismic risk (x) Post-disaster recovery and the re- areas. turn of economic stability; (b) This assistance program provides (xi) Secondary impacts, such as dam funding for earthquake hazards reduc- failures, toxic releases, etc.; and tion activities which are eligible ac- (xii) Organization and management.

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(3) Public awareness/earthquake edu- (e) The specific activities, and the cation activities are designed to in- distribution of funds among them, that crease public awareness of earthquakes will be undertaken with this assistance and their associated risks, and to stim- will be determined during the annual ulate behavioral changes to foster a Comprehensive Cooperative Agreement self-help approach to earthquake pre- (CCA) negotiations between FEMA and paredness, response, and mitigation. the State, and will be based upon the Audiences that may be targeted for following: such efforts include: (1) The availability of information (i) The general public; regarding identification of seismic haz- (ii) School populations (administra- ards and vulnerability to those haz- tors, teachers, students, and parents); ards; (iii) Special needs groups (e.g., elder- (2) Earthquake hazards reduction ac- ly, disabled, non-English speaking); complishments of the State to date; (iv) Business and industry; (3) State and Federal priorities for (v) Engineers, architects, builders; needed earthquake hazards reduction (vi) The media; and activities; and (vii) Public officials. (4) State and local capabilities with (4) in support of those Other Activities respect to staffing, professional exper- listed in § 361.3(b)(1), (b)(2), and (b)(3) tise, and funding. may include, but are not limited to, (f) As a condition of receiving FEMA State seismic advisory boards which funding, a percentage of the amount of provide State and local officials re- the total State project (FEMA State sponsible for implementing earthquake assistance, combined with the State hazards reduction projects with expert match) must be spent for activities advice in a variety of fields; hazard under the Mitigation Planning ele- identification which defines the poten- ment. The percentage, to be deter- tial for earthquakes and their related mined by FEMA, may be increased by geological hazards in a particular area; no more than 5 percent annually, be- and vulnerability assessments, also ginning at 15 percent in fiscal year 1991 known as loss estimation studies, with a limit of 50 percent of the total which provide information on the im- State project. The increase will take pacts and consequences of an earth- into account the amount of time a quake on an area’s resources, as well as State has been participating in the pro- opportunities for earthquake hazards gram. States may expend more than mitigation. the required percentage of funding on (c) State eligibility for financial as- eligible mitigation activities. sistance to States under this section is determined by FEMA based on a com- (g) The State match may be distrib- bination of the following criteria: uted among the eligible activities in (1) Seismic hazard, including the his- any manner that is mutually agreed toric occurrence of damaging earth- upon by FEMA and the State in the quakes, as well as probable seismic ac- CCA negotiations. tivity; (h) Negotiations between FEMA and (2) Total population and major urban the State regarding the scope of work concentrations exposed to such risk; and the determination of the amount and of State assistance to be awarded shall (3) Other factors, the loss, damage, or consider earthquake hazards reduction disruption of which by a severe earth- activities previously accomplished by quake would have serious national im- the State, as well as the quality of pacts upon national security, such as their performance. industrial concentrations, concentrations or occurrences of natural re- § 361.4 Matching contributions. sources, financial/economic centers and (a) All State assistance will be cost national defense facilities. shared after the first year of funding. (d) Each fiscal year, FEMA will es- States which received a grant before tablish a target allocation of earth- October 1, 1990, which included the 50 quake program funds for each eligible percent non-Federal contribution to State. the State program, will continue to

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match the Federal funds on a 50 per- ulations then in effect, taking into ac- cent cash match basis. count the number of years in which the (b) States which did not receive a State previously participated. grant before October 1, 1990, will assume cost sharing on a phased-in basis § 361.5 Criteria for program assist- over a period of four years with the full ance, matching contributions, and cost sharing requirements being imple- return of program assistance funds. mented in the fourth year. The se- (a) In order to qualify for assistance, quence is as follows: a State must: (1) For the first fiscal year, cost shar- (1) Demonstrate that the assistance ing will be voluntary. FEMA will pro- will result in enhanced seismic safety vide State assistance without requiring in the State; a State match. Those States that are (2) Provide a share of the costs of the able to cost-share are encouraged to do activities for which assistance is being so (on either a cash or in-kind basis). given, in accordance with § 361.4; and (2) For the second fiscal year, the (3) Demonstrate that it is taking ac- minimum acceptable non-Federal con- tions to ensure its ability to meet the tribution is 25 percent of the total 50 percent cash contribution commit- project cost, which may be satisfied ment either on an ongoing basis or for through an in-kind contribution. Those new States, by the fourth year of fund- States that are able to cost-share on a ing. cash-contribution basis are encouraged to do so. (i) The Governor of newly partici- (3) For the third fiscal year, the min- pating State must certify to the FEMA imum acceptable non-Federal contribu- Regional Director the State will take tion is 35 percent of the total project steps to meet the 50 percent cash con- cost, which may be satisfied through tribution requirement after the third an in-kind contribution. Those States year of funding. The specific steps to be that are able to cost-share on a cash- taken will be outlined in the certifi- contribution basis are encouraged to do cation which must be submitted prior so. to the State receiving program funds. (4) For the fourth and subsequent fis- (ii) The Governor must certify the cal years, full cost sharing will be im- State’s continued commitment in the plemented, requiring a minimum of a second and third years of funding. The 50 percent non-Federal contribution to certification will describe the progress a State program, with this share re- made on the steps contained in the pre- quired to be cash. In-kind matching vious year’s certification and steps to will no longer be acceptable. Thus, be taken in the future. The certifi- every dollar FEMA provides to a State cation must be submitted to the Re- must be matched by one dollar from gional Director before the State will the State. States that can contribute receive program funds. an amount greater than that required (iii) If a State encounters difficulties by the match are permitted and en- meeting the 50 percent cash contribu- couraged to do so. However, State as- tion requirement for the target alloca- sistance will not exceed the established tion following the fourth year of fund- target allocation. ing, the Regional Director may require (c) The State contribution need not the Governor to continue certifying be applied at the exact time of the obli- the State is working to resolve the dif- gation of the Federal funds. However, ficulty. the State full matching share must be (iv) A State will not receive Federal obligated by the end of the project pe- funds if it cannot provide the required riod for which the State assistance has cash contribution. been made available for obligation (b) The value of any resources accept- under an approved program or budget. ed as a matching share under one Fed- (d) In the event a State interrupts its eral agreement or program cannot be participation in this program, if it counted again as a contribution under later elects to participate again, the another. nature and amount of that State’s cost (c) The State seeking the match shall sharing shall be determined by the reg- submit documentation sufficient for

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FEMA to determine that the contribu- ance period will not be made available tion meets the following requirements. to the State unless the State can dem- The match shall be: onstrate, and FEMA approves, its abil- (1) Necessary and reasonable for ity to perform activities adequately re- proper, cost-effective and efficient ad- sulting in the expenditure of the funds ministration of the project, allocable by the end of the performance period. solely thereto, and except as specifically provided herein, not be a general § 361.6 Documentation of matching expense required to carry out the over- contributions. all responsibilities of State and local (a) The statement of work provided governments; by the State to FEMA describing the (2) Verifiable from the recipient specific activities comprising its earth- State’s records; quake hazards reduction project, in- (3) Not allocable to or included as a cluding the project budget, shall re- cost of any other Federally financed flect a level of effort commensurate program in either the current or a with the total of the State and FEMA prior period; contributions. (4) Authorized under State law; (b) The basis by which the State de- (5) Consistent with any limitations termines the value of an in-kind match or exclusions set forth in these regula- must be documented and a copy re- tions, Federal laws or other governing tained as part of the official record. limitations as to types of cost items; (c) The State shall maintain all (6) Accorded consistent treatment records pertaining to matching con- through application of generally ac- tributions for a three-year period after cepted accounting principles appro- the date of submission of the final fi- priate to the circumstances; nancial report required by the CCA, or (7) Provided for in the approved budg- date of audit, whichever date comes et/workplan of the State; and first. (8) Consistent with OMB Circular A– 87, ‘‘Cost Principles for State and Local § 361.7 General eligible expenditures. Governments,’’ and with 44 CFR part 13, Uniform Administrative Require- (a) Expenditures must be for activi- ments for Grants and Cooperative ties described in the statement of work Agreements to State and Local Gov- mutually agreed to by FEMA and the ernments. State during the annual negotiation (d) A State must submit and FEMA process, or for activities that the State must approve a statement of work be- agrees to perform as a result of subse- fore the State receives any grant funds. quent modifications to that statement The statement of work and target allo- of work. These activities shall be con- cation of funds are based on a 12-month sistent with the definition of eligible performance period. Except under ex- activities in § 361.2. tenuating circumstances, the funds ini- (b) The following is a list of eligible tially obligated to the State will be expenditures. When items do not ap- based on the amount of time remaining pear on the list they will be considered in the performance period at the time on a case-by-case basis for policy deter- the statement of work is approved. minations, based on criteria set forth (Approved by the Office of Management in § 361.5. All costs must be reasonable, and Budget under OMB control number and consistent with OMB Circular A– 3067–0170.) 87. (e) States are expected to perform ac- (1) Direct and indirect salaries or tivities and therefore expend funds on a wages (including overtime) of employ- quarterly basis in accordance with the ees hired specifically for carrying out approved statement of work. At the earthquake hazards reduction activi- end of the third quarter, State and ties are eligible when engaged in the FEMA regional office staff will review performance of eligible work. the State’s accomplishments to date. (2) Reasonable costs for work per- Funds not expended in accordance with formed by private contractors on eligi- the approved statement of work by the ble projects contracted for by the end of the third quarter of the perform- State.

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(3) Travel costs and per diem costs of PART 362—CRITERIA FOR ACCEPT- State employees not to exceed the ac- ANCE OF GIFTS, BEQUESTS, OR tual subsistence expense basis for the SERVICES permanent or temporary activity, as determined by the State’s cost prin- Sec. ciples governing travel. 362.1 Purpose. (4) Non-expendable personal property, 362.2 Definitions. office supplies, and supplies for work- 362.3 Criteria for determining acceptance. shops; exhibits. AUTHORITY: 42 U.S.C. 7701, 7705c. (5) A maximum of $8,000 or 10 percent SOURCE: 59 FR 35631, July 13, 1994, unless of the total project allocation, which- otherwise noted. ever is less, may be expended for personal computer equipment in the first § 362.1 Purpose. year of program funding. A full-time This part establishes criteria for de- earthquake staff person must be em- termining whether the Director may ployed and the equipment must be accept gifts, bequests, or donations of dedicated entirely to the earthquake services, money or property for the Na- project. tional Earthquake Hazards Reduction (6) Meetings and conferences, when Program (NEHRP), under section 9 of the primary purpose is dissemination the National Earthquake Hazards Re- of information relating to the earth- duction Program Reauthorization Act, quake hazards reduction project. 42 U.S.C. 7705c. (7) Training which directly benefits § 362.2 Definitions. the conduct of earthquake hazards reduction activities. As used in this part— Gifts of property means a gratuitous, § 361.8 Ineligible expenditures. voluntary transfer or conveyance of ownership in property by one person to (a) Expenditures for anything defined another without any consideration, in- as an unallowable cost by OMB Cir- cluding transfer by donation, devise or cular A–87. bequest. (b) Federal funds may not be used for Gifts of services means a gratuitous, the purchase or rental of any equip- voluntary offer of labor or professional ment such as radio/telephone commu- work by one person to another without nications equipment, warning systems, any compensation for that labor or and computers and other related infor- professional work. mation processing equipment, except Program Agencies means the Federal as stated in § 361.7(b)(5). If a State wish- Emergency Management Agency, the es to use its matching funds for this United States Geological Survey, the purpose, it must: National Science Foundation, and the (1) Document during the annual ne- National Institute of Standards and gotiation process with FEMA how this Technology. equipment will support the earthquake Property means real or personal prop- hazards reduction activities in its erty, tangible or intangible, including scope of work (see § 361.7(a)); and money, certificates of stocks, bonds, or (2) Claim as credit for its match, if other evidence of value. Services means labor or professional the equipment is to be used for pur- work performed for the benefit of an- poses in addition to support of earth- other or at another’s command. quake hazards reduction activities, Solicit means to endeavor to obtain only that proportion of costs directly by asking or pleading. related to its earthquake hazards reduction project. § 362.3 Criteria for determining acceptance. Subpart B [Reserved] The following criteria shall be applied whenever a gift of property or gift

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of services is offered to the Director for authorized by 5 U.S.C. 5703 for persons the benefit of the National Earthquake serving without compensation. Hazards Reduction Program. (d) Employees of FEMA or the Pro- (a) The gift of property or gift of gram agencies may not solicit gifts of services must clearly and directly fur- property, or gifts of services. ther the objectives of the National (e) Acceptance of gifts of property, or Earthquake Hazards Reduction Pro- gifts of services must first be approved gram, as defined in 42 U.S.C. 7702. by the Office of the General Counsel, (b) All gifts of property must be of- FEMA, for conformance with all appli- fered unconditionally, with sole discre- cable laws and regulations. tion of use, administration and disposi- (f) In all cases where it is determined tion of such property to be determined that the acceptance of a gift may cre- by the Director or his designee. ate a conflict of interest, or the appear- (c) The Director may accept and use ance of a conflict of interest, the gift gifts of services of voluntary and un- will be declined. compensated personnel, and may provide transportation and subsistence as PARTS 363–399 [RESERVED]

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Part Page 401 Shipping restrictions (T–1) ...... 617 402 Shipments on American flag ships and aircraft (T– 1, Int. 1) ...... 618 403–499 [Reserved]

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audit. Records may be retained in the ports, on American flag ships and air- form of microfilm or other photo- craft. graphic copies instead of the originals. § 402.2 Restricted commodities. § 401.5 Defense against claims for dam- The restrictions of Transportation ages. Order T–1 apply to the transportation No person shall be held liable for or discharge of (a) commodities on the damages or penalties for any default Positive List (15 CFR part 399) (as under any contract or order which amended from time to time) of the shall result directly or indirectly from Comprehensive Export Schedule of the compliance with this order or any pro- Office of International Trade, Depart- vision thereof, notwithstanding that ment of Commerce, (b) articles on the this order or such provision shall list of arms, ammunition and imple- thereafter be declared by judicial or ments of war coming within the mean- other competent authority to be in- ing of Proclamation No. 2776 of March valid. 26, 1948, and (c) commodities, including fissionable materials, controlled for ex- § 401.6 Violations. port under the Atomic Energy Act of Any person who wilfully violates any 1946. The restrictions imposed by provisions of this order or wilfully con- Transportation Order T–1 do not apply ceals a material fact or furnishes false to other commodities, not within these information in the course of operation restricted classes at the time of trans- under this order is guilty of a crime portation or discharge, even though au- and upon conviction may be punished thorization for the export of the com- by fine or imprisonment or both. In ad- modity from the United States to the dition, administrative action may be particular destination is required taken against any such person, denying under regulations of the Office of Inter- him the privileges generally accorded national Trade or under other Federal under this order. law or regulation. In this respect, Order T–1 is different from Order T–2 PART 402—SHIPMENTS ON AMER- which applies to all commodities destined to Communist China. Order T–1 ICAN FLAG SHIPS AND AIRCRAFT does not relax or modify any of the re- (T–1, INT. 1) quirements of any other regulation or law. Sec. 402.1 Shipments from the United States. § 402.3 Addition of commodities to the 402.2 Restricted commodities. Positive List. 402.3 Addition of commodities to the Posi- tive List. Order T–1 applies to the transpor- 402.4 Calls at restricted ports en route to an tation or discharge of commodities unrestricted port with restricted cargo. which are restricted at the time of 402.5 Forwarding commodities previously transportation or discharge. Accord- shipped. ingly, if a commodity is added to the 402.6 Relation to Transportation Order T–2. Positive List while the commodity is AUTHORITY: Sec. 704, 64 Stat. 816, as amend- being transported on an American flag ed; 50 U.S.C. app. 2154. Interpret or apply sec. ship or aircraft, the restrictions of 101, 64 Stat. 799, as amended; 50 U.S.C. app. Order T–1 immediately apply and the 2071, E.O. 10480, 3 CFR, 1949–1953 Comp., p. commodity may not be transported to 962. or discharged at any of the restricted SOURCE: Transportation Order T–1, Inter- ports or discharged in transit to one of pretation 1, 15 FR 9145, Dec. 21, 1950; 32 FR the restricted ports, unless authoriza- 15831, Nov. 17, 1967. Redesignated at 45 FR tion under Order T–1 is obtained. 44574, July 1, 1980, unless otherwise noted. § 402.4 Calls at restricted ports en § 402.1 Shipments from the United route to an unrestricted port with States. restricted cargo. Transportation Order T–1 applies to Order T–1 does not prohibit an Amer- shipments from the United States, as ican flag ship or aircraft from going to well as to shipments from foreign or calling at one of the restricted

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ports, even though it has on board a restricted destination. The restrictions commodity which could not be dis- of Order T–1 do not apply to transpor- charged at that port. (Note, however, tation by foreign carriers, as long as that Order T–2 prohibits American flag there is no prohibited transportation ships and aircraft from calling at any or discharge by or from a United States port or other place in Communist flag ship or aircraft after the issuance China.) For example, an American flag of Order T–1. Accordingly, if an Amer- ship may call at one of the restricted ican flag ship or aircraft, before the ports (except one in Communist China), issuance of Order T–1, had transported even though it has on board the fol- restricted commodities manifested to lowing classes of commodities: restricted destinations, and had com- (a) A Positive List commodity mani- pleted the transportation to a foreign fested to a destination outside the re- intermediate point and had completed stricted area, with an export license the discharge from the American flag and an export declaration showing the ship or aircraft before the issuance of unrestricted destination at the ulti- Order T–1, no violation of that order mate destination, (b) a Positive List would have occurred, but Order T–1 commodity destined for the restricted would prohibit further shipment on an port of call which cannot be discharged American flag ship or aircraft unless there because there is no export license authorization under Order T–1 is ob- or authorization from the Assistant tained. Secretary for Domestic and Inter- national Business permitting discharge § 402.6 Relation to Transportation at the restricted port of call, (c) a com- Order T–2. modity of any kind destined for Com- munist China (the transportation and Transportation Order T–1 applies to discharge of which is covered by Order the transportation of commodities to, T–2). None of these commodities may or in transit to, destinations in Sub- be discharged at the restricted port of Group A, Hong Kong or Macao. It ap- call. Discharge of any of these complies, however, only to commodities on modities at the port covered by the re- the Positive List of the Office of Inter- strictions of Order T–1 is prohibited national Trade, arms and ammunition, and subject to penalty, regardless of and commodities controlled under the the circumstances under which the dis- Atomic Energy Act (see section 2 of charge of the cargo at the restricted this interpretation). Transportation port occurs, unless appropriate author- Order T–2 applies to the transportation ization is obtained. of commodities of any kind which are destined to Communist China (Order T– § 402.5 Forwarding commodities pre- 2 also prohibits American ships and viously shipped. aircraft from calling at any port or Order T–1 applies to transportation place in Communist China). Since on or discharge from ships documented Communist China is in Sub-Group A, under the laws of the United States the restrictions of both orders apply to and aircraft registered under the laws the transportation of commodities to of the United States. These restrictions Communist China or to any other point apply either in the case of a discharge in transit to Communist China. at one of the restricted ports or to discharge at any other port in transit to a PARTS 403–499 [RESERVED]

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A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually.

Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected

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Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) IV Miscellaneous Agencies (Parts 400—500)

Title 2 [Reserved]

Title 3—The President

I Executive Office of the President (Parts 100—199)

Title 4—Accounts

I General Accounting Office (Parts 1—99)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Part 2100) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Part 3201) XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401) XXV Department of the Interior (Part 3501) XXVI Department of Defense (Part 3601)

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XXVIII Department of Justice (Part 3801) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Part 4301) XXXV Office of Personnel Management (Part 4501) XL Interstate Commerce Commission (Part 5001) XLI Commodity Futures Trading Commission (Part 5101) XLII Department of Labor (Part 5201) XLIII National Science Foundation (Part 5301) XLV Department of Health and Human Services (Part 5501) XLVI Postal Rate Commission (Part 5601) XLVII Federal Trade Commission (Part 5701) XLVIII Nuclear Regulatory Commission (Part 5801) L Department of Transportation (Part 6001) LII Export-Import Bank of the United States (Part 6201) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Part 6401) LVII General Services Administration (Part 6701) LVIII Board of Governors of the Federal Reserve System (Part 6801) LIX National Aeronautics and Space Administration (Part 6901) LX United States Postal Service (Part 7001) LXI National Labor Relations Board (Part 7101) LXII Equal Employment Opportunity Commission (Part 7201) LXIII Inter-American Foundation (Part 7301) LXV Department of Housing and Urban Development (Part 7501) LXVI National Archives and Records Administration (Part 7601) LXIX Tennessee Valley Authority (Part 7901) LXXI Consumer Product Safety Commission (Part 8101) LXXIII Department of Agriculture (Part 8301) LXXIV Federal Mine Safety and Health Review Commission (Part 8401) LXXVI Federal Retirement Thrift Investment Board (Part 8601) LXXVII Office of Management and Budget (Part 8701)

Title 6 [Reserved]

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209)

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II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy, Department of Agriculture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV Cooperative State Research, Education, and Extension Service, Department of Agriculture (Parts 3400—3499)

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XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)

Title 8—Aliens and Nationality

I Immigration and Naturalization Service, Department of Justice (Parts 1—599)

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

Title 10—Energy

I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Part 1800)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099)

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499)

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V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)

Title 13—Business Credit and Assistance

I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399) IV Emergency Steel Guarantee Loan Board (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)

Title 14—Aeronautics and Space

I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—499) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Air Transportation System Stabilization (Parts 1300—1399)

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499)

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VII Bureau of Industry and Security, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE- MENTS XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS AND INFORMATION XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399)

Title 16—Commercial Practices

I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)

Title 17—Commodity and Securities Exchanges

I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)

Title 18—Conservation of Power and Water Resources

I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)

Title 19—Customs Duties

I United States Customs Service, Department of the Treasury (Parts 1—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399)

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I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees’ Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Employment Standards Administration, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training, Department of Labor (Parts 1000—1099)

Title 21—Food and Drugs

I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)

Title 22—Foreign Relations

I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V Broadcasting Board of Governors (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799)

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I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

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I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Part 1200)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1— 899)

Title 27—Alcohol, Tobacco Products and Firearms

I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury (Parts 1—299)

Title 28—Judicial Administration

I Department of Justice (Parts 0—199) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) XI Department of Justice and Department of State (Parts 1100— 1199)

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399)

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IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Pension and Welfare Benefits Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

Title 30—Mineral Resources

I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Minerals Management Service, Department of the Interior (Parts 200—299) III Board of Surface Mining and Reclamation Appeals, Department of the Interior (Parts 300—399) IV Geological Survey, Department of the Interior (Parts 400—499) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999)

Title 31—Money and Finance: Treasury

SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS 0—50) SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999)

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SUBTITLE A—DEPARTMENT OF DEFENSE I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE- FENSE XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899)

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Transportation (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) XI National Institute for Literacy (Parts 1100—1199) SUBTITLE C—REGULATIONS RELATING TO EDUCATION XII National Council on Disability (Parts 1200—1299)

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I Panama Canal Regulations (Parts 1—299)

Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Part 1501) XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)

Title 37—Patents, Trademarks, and Copyrights

I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)

Title 38—Pensions, Bonuses, and Veterans’ Relief

I Department of Veterans Affairs (Parts 0—99)

Title 39—Postal Service

I United States Postal Service (Parts 1—999) III Postal Rate Commission (Parts 3000—3099)

Title 40—Protection of Environment

I Environmental Protection Agency (Parts 1—799) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600— 1699)

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VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799)

Title 41—Public Contracts and Property Management

SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS 50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99) 60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 61–1—61–999) SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS SYSTEM 101 Federal Property Management Regulations (Parts 101–1—101–99) 102 Federal Management Regulation (Parts 102–1—102–299) 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM 201 Federal Information Resources Management Regulation (Parts 201–1—201–99) [Reserved] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–70) 304 Payment from a Non-Federal Source for Travel Expenses (Parts 304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)

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SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 200— 499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10005)

Title 44—Emergency Management and Assistance

I Federal Emergency Management Agency (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)

Title 45—Public Welfare

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199)

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XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)

Title 46—Shipping

I Coast Guard, Department of Transportation (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Transpor- tation (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 United States Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management Federal Employees Health Ben- efits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099)

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21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 35 Panama Canal Commission (Parts 3500—3599) 44 Federal Emergency Management Agency (Parts 4400—4499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) 54 Defense Logistics Agency, Department of Defense (Part 5452) 57 African Development Foundation (Parts 5700—5799) 61 General Services Administration Board of Contract Appeals (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)

Title 49—Transportation

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION (PARTS 1—99) SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION I Research and Special Programs Administration, Department of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Transportation (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399)

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XI Bureau of Transportation Statistics, Department of Transpor- tation (Parts 1400—1499) XII Transportation Security Administration, Department of Trans- portation (Parts 1500—1599)

Title 50—Wildlife and Fisheries

I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199) II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)

CFR Index and Finding Aids

Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR

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CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Advanced Research Projects Agency 32, I Advisory Council on Historic Preservation 36, VIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development, United States 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department 5, LXXIII Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Cooperative State Research, Education, and Extension 7, XXXIV Service Economic Research Service 7, XXXVII Energy, Office of 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force Department 32, VII Federal Acquisition Regulation Supplement 48, 53 Alcohol, Tobacco and Firearms, Bureau of 27, I AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I Appalachian Regional Commission 5, IX Architectural and Transportation Barriers Compliance Board 36, XI Arctic Research Commission 45, XXIII

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VerDate 0ct<09>2002 13:57 Oct 16, 2002 Jkt 197174 PO 00000 Frm 00029 Fmt 8092 Sfmt 8092 Y:\SGML\197174B.XXX 197174B VerDate 0ct<09>2002 13:57 Oct 16, 2002 Jkt 197174 PO 00000 Frm 00030 Fmt 8092 Sfmt 8092 Y:\SGML\197174B.XXX 197174B List of CFR Sections Affected All changes in this volume of the Code of Federal Regulations which were made by documents published in the FEDERAL REGISTER since Jan- uary 1, 2001, are enumerated in the following list. Entries indicate the nature of the changes effected. Page numbers refer to FEDERAL REGISTER pages. The user should consult the entries for chapters and parts as well as sections for revisions. For the period before January 1, 1986, see the ‘‘List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, and 1986–2000’’ published in 11 separate volumes.

2001 44 CFR—Continued 66 FR Page 44 CFR 66 FR Chapter I—Continued Page 206.221 (e)(3) through (6) redesig- Chapter I nated as (e)(4) through (7); new 2.81 Amended (OMB numbers) ...... 57347 (e)(3) added; interim...... 22445 9 Authority citation revised ...... 57347 206.224 (a) revised...... 33901 206.226 (b) through (i) redesig- 9.5 (c)(6) revised ...... 57347 nated as (c) through (j); new (b) 10.8 (d)(2)(xix)(N) revised ...... 57347 added; interim ...... 22445 59.1 Amended...... 59170 206.361 (b) revised...... 22445 62 Appendix B amended ...... 40917 206.363 (b)(1) revised...... 22445 64.3 (a)(1) introductory text and 209 Revised ...... 32669 concluding text revised; (a)(1) 209.2 Corrected ...... 49554 table amended ...... 59170 209.7 (d) correctly designated as 64.6 Table amended .....2826, 10586, 15640, (b) ...... 49554 19096, 22937, 31179, 36948, 43092, 51321, 209.8 (c)(8)(ii), (9)(xiii) corrected; 54719, 63628 second (c)(9) correctly des- 65.2 (c) added...... 22442 ignated as (c)(10) ...... 49554 65.4 Flood elevation determina- 295 (Subchapter E) Revised ...... 15959 tions .....1600, 10589, 10591, 10593, 13240, 354 Revised ...... 32577 13264, 21099, 21103, 24281, 24282, 31181, 31183, 33891, 39105, 39108, 43094, 43096, 2002 44984, 49548, 49549, 53112, 53114, 53116, (Regulations published from January 1, 56770, 56774, 65108, 65110 2002, through October 1, 2002) 65.5 Revised ...... 22442 65.6 (a)(14) and (15) added ...... 22442 44 CFR 67 FR Page 67.11 Flood elevation determina- Chapter I tions....10596, 24284, 33893, 39112, 42147, 49553, 53117, 65115, 65121 59.30 (a) revised; interim ...... 10633 61.9 (a) revised...... 8905 70.4 Revised ...... 33900 61.17 (a) through (d) and (h) re- 152 Added ...... 15972 vised; interim ...... 61462 204 Added ...... 57347 61 Appendixes (A)(4), (5) and (6) 206.2 (a)(3)(i) revised ...... 57352 amended; interim ...... 10634 (a)(20) revised...... 57353 62.23 (a) and (b) revised...... 13549 206.203 (d)(2)(iii) and (iv) redesig- 62.24 Revised ...... 13550 nated as (d)(2)(iv) and (v); 62 Appendix A amended ...... 13550, 51769 (d)(2)(ii) revised; new (d)(2)(iii) 64.6 Table amended .....5222, 13290, 16031, added; interim ...... 22444 30330, 42502, 44078, 50818, 54588

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44 CFR—Continued 67 FR 44 CFR—Continued 67 FR Page Page Chapter I—Continued Chapter I—Continued 65.4 Flood elevation determina- 206.432 (b) revised; interim...... 8853 tions....1610, 1612, 5223, 5225, 5228, 5231, (b)(1) revised; interim...... 61515 11047, 11049, 21179, 35744, 35746, 35750, 206.434 (b) through (g) redesig- 35753, 45657, 46399, 48043, 50363, 53746, nated as (c) through (h); new (b) 53748, 57173, 57175 added; (c) introductory text, (1) Corrected...... 54700 and (d) revised; interim ...... 8853 67.11 Flood elevation determina- (b)(1) revised; interim...... 61515 tions ...... 676, 1614, 5232, 5234, 11053, 206.435 (a) revised; interim...... 8853 12480, 20447, 35757, 35759, 45659, 45666, 206.436 Revised; interim ...... 8853 48046, 53751, 57177 152 Revised; interim...... 9148 201 Added; interim ...... 8848 2002 201.3 (c)(3) revised; interim ...... 61515 (Correction published October 9, 2002) 201.4 (a) revised; interim ...... 61515 201.6 (a) revised; interim ...... 61515 44 CFR 67 FR 206 Authority citation revised...... 8852 Page 206.44 (a) amended; interim ...... 61460 Chapter I 206.62 (f) revised; interim ...... 61460 206.101–206.120 (Subpart D) Head- 206.101 (e)(1) correctly revised; ing correctly revised...... 62896 CFR correction...... 13093 206.110 Correctly added ...... 62896 Heading revised; (a) amended; in- 206.111 Correctly added ...... 62896 terim ...... 61460 206.112 Correctly added ...... 62896 206.110—206.120 (Subpart D) Re- 206.113 Correctly added ...... 62896 vised; interim ...... 61452 206.131 Heading revised; (a) 206.114 Correctly added ...... 62896 amended; interim ...... 61460 206.115 Correctly added; (c) cor- 206.191 (d)(2)(ii) and (iv) revised; rected...... 62896 interim...... 61460 206.116 Correctly added ...... 62896 206.220 Revised; interim ...... 8854 206.117 Correctly added; (b)(1)(ii) 206.226 (b) through (j) redesig- correctly designated; nated as (c) through (k); new (b) (b)(1)(ii)(G)(1) corrected...... 62896 added; (g)(5) revised; in- 206.118 Correctly added ...... 62896 terim ...... 8854 206.119 Correctly added ...... 62896 206.400—206.402 (Subpart M) Re- 206.120 Correctly added ...... 62896 vised; interim...... 8852 (d)(4)(viii) correctly designated 206.431 Revised; interim ...... 8852 ...... 62897 Æ

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