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Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Notices
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V.A.22. Reduction, withdrawal, or adjustment of a grant, or other appropriate action. Prior to a reduction, withdrawal, or adjustment of a CDBG
DR grant, or other actions taken pursuant to this section, the recipient shall be notified of the proposed action and be given an opportunity for an informal consultation. Consistent with the procedures described for CDBGDR
funds, the Department may adjust, reduce, or withdraw the CDBGDR grant or take other actions as appropriate, except for funds that have been expended for eligible, approved activities.
V.A.23. Federal accessibility requirements. Grantees are reminded that the use of CDBGDR funds must meet accessibility standards, including, but not limited to, the Fair Housing Act, Section 504 of the Rehabilitation Act, and Titles II and III of the Americans with Disabilities Act. Grantees should review the Fair Housing Act Accessibility Guidelines at https
www.hud.gov/program_offices/fair_
housing_equal_opp/disabilities/fhefhag, the Uniform Federal Accessibility Standards UFAS at https
www.hudexchange.info/resource/796/
ufas-accessibility-checklist/, and the 2010 ADA Standards. The HUD notice on Nondiscrimination on the Basis of Disability in Federally Assisted Programs and Activities, 79 FR 29671
May 23, 2014, explains when HUD
recipients can use 2010 ADA Standards with exceptions, as an alternative to UFAS to comply with Section 504.
V.B. Infrastructure and Other Nonresidential Structures V.B.1. Construction standard alternative requirement for elevation of nonresidential structures.
Nonresidential structures must be elevated to the standards described in this paragraph or floodproofed, in accordance with FEMA floodproofing standards at 44 CFR 60.3c3ii or successor standard, up to at least two feet above the 100-year or 1 percent annual chance floodplain. In addition, structural or nonstructural methods may be used to reduce or prevent damage, and the structure may be designed to adapt to, withstand and rapidly recover from a flood event. All Critical Actions, as defined at 24 CFR 55.2b3, within the 500-year or 0.2 percent annual chance floodplain must be elevated or floodproofed in accordance with the FEMA standards to the higher of the 500-year floodplain elevation or three feet above the 100-year floodplain elevation. If the 500-year floodplain or elevation is unavailable, and the Critical Action is in the 100-year floodplain,
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then the structure must be elevated or floodproofed at least three feet above the 100-year floodplain elevation. Critical Actions are defined as an activity for which even a slight chance of flooding would be too great, because such flooding might result in loss of life, injury to persons or damage to property. For example, Critical Actions include principal utility lines, hospitals, nursing homes, police stations, and fire stations.
Grantee may, in the alternative, use a FEMA-approved flood standard when each of the following conditions is in place: i CDBGDR funds are used as the non-federal match for FEMA
assistance; ii the FEMA-assisted activity, for which CDBGDR funds will be used as match, commenced prior to HUDs obligation of CDBGDR funds to the grantee; and iii the grantee has determined and demonstrated with records in the activity file that implementation costs of the required CDBGDR elevation or flood proofing up to two feet or three feet for critical actions is not reasonable as that term is defined in the applicable cost principles at 2 CFR 200.404. Under this provision and criterion ii above, HUD considers the FEMA-assisted activity to have commenced on the date on which the HUD grantee has incurred a project cost that has been or will be charged to an approved FEMA PW. This may include pre-award costs if FEMA determines that the costs are eligible.
Non-structural infrastructure must be resilient to flooding. The vertical flood elevation establishes the level to which a facility must be resilient. This may include using structural or nonstructural methods to reduce or prevent damage; or, designing it to withstand and rapidly recover from a flood event. In selecting the appropriate resilience approach, grantees should consider several factors such as flood depth, velocity, rate of rise of floodwater, duration of floodwater, erosion, subsidence, the function or use and type of facility, and other factors.
Applicable state and local codes and standards for floodplain management that exceed these requirements, including elevation, setbacks, and cumulative substantial damage requirements, will be followed. Grantees are reminded that the elevation of structures must comply with all applicable Federal accessibility standards outlined in section V.A.22.
Grantees, recipients, and subrecipients must implement procedures and mechanisms to ensure that assisted property owners comply with all flood insurance requirements, prior to providing assistance. For
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additional information, please consult with the field environmental officer in the local HUD field office or review the guidance on flood insurance requirements on HUDs website.
V.B.2. Limitation of use of eminent domain. CDBGDR funds may not be used to support any Federal, state, or local projects that seek to use the power of eminent domain, unless eminent domain is employed only for a public use. For purposes of this paragraph, public use shall not be construed to include economic development that primarily benefits private entities. Any use of funds for mass transit, railroad, airport, seaport or highway projects, as well as utility projects which benefit or serve the general public including energy related, communication-related, water related, and wastewater-related infrastructure, other structures designated for use by the general public or which have other common-carrier or public-utility functions that serve the general public and are subject to regulation and oversight by the government, and projects for the removal of an immediate threat to public health and safety or brownfields as defined in the Small Business Liability Relief and Brownfields Revitalization Act Pub. L. 107118
shall be considered a public use for purposes of eminent domain.
V.B.3. Refinancing or payment of debt for acquisition. Pursuant to the definition of electrical power system improvements established in section V.A.8.a.ii of this notice, the refinancing or paying down of debt shall be eligible only for the purpose of acquiring a facility only upon HUDs consultation with the federal agencies that comprise the TCT, and a demonstration by the grantee that such acquisition is critical to the improvement of the grantees electrical power system and to long term financial stability of the grantees public utility and will allow the grantee to meet a lowand moderate-income national objective as established by this notice.
V.B.4. HUD consultation on use of other CDBGDR and CDBGMIT funds.
The unprecedented levels of HUD and other federal funding for disaster recovery and mitigation provided to Puerto Rico and the USVI and the specialized nature of the electrical power system improvement activity funded pursuant to this notice, warrant additional consultation by HUD with its federal partners when a grantee proposes to use other CDBGDR funds or CDBGMIT funds for electrical power system improvement to ensure that all funds are used for necessary expenses, as required by the Appropriations Act.

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