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Federal Register / Vol. 86, No. 173 / Friday, September 10, 2021 / Rules and Regulations
eligible pre-award costs that were incurred prior to the open application period. In response to this comment, FEMA has removed the statement referenced above from 44 CFR 77.7b.
Costs incurred prior to award may be reimbursed if they meet the eligibility requirements and are in compliance with 2 CFR part 200 Subpart E, Cost Principles. Pre-award costs include costs directly related to developing an application or subapplication that are incurred prior to the date of the grant award and are allowed subject to FEMA
approval at time of award. Such costs may include gathering National Environmental Policy Act NEPA data or developing a Benefit Cost Analysis BCA, preparing design specifications including the development of elevation plans, or conducting workshops or meetings related to development and submission of subapplications.
Second, the ASFPM identified that the proposed 44 CFR 77.6c2vi states, Non-localized flood risk reduction projects such as dikes, levees, floodwalls, seawalls, groins, jetties, dams and large-scale waterway channelization projects are not eligible, which is inconsistent with recent Notices of Funding Opportunity NOFOs speaking to the eligibility of community mitigation projects, which could qualify as non-localized flood risk reduction projects. It is not FEMAs intent for these project types to be ineligible under all circumstances. In response to this comment, FEMA has added language to 44 CFR 77.6c2vi for clarity and consistency with 42
U.S.C. 4014cc3E, limiting funding to localized projects, except in rare instances. As a result, 44 CFR
77.6c2vi now reads, Non-localized flood risk reduction projects such as dikes, levees, floodwalls, seawalls, groins, jetties, dams and large-scale waterway channelization projects are not eligible unless the Administrator specifically determines in approving a mitigation plan that such activities are the most cost-effective mitigation activities for the National Flood Mitigation Fund. This change to the regulatory text reflects a change in FEMAs current practice and emphasizes that 42 U.S.C. 4014c allows the option to authorize these project types in very rare circumstances.
Third, the ASFPM noted that the revised HMA regulations do not specifically list project scoping previously known as advance assistance as an eligible activity under the proposed 44 CFR 77.6c. However, project scoping is an eligible activity under FEMAs current practice. In response to this comment, therefore,
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FEMA has added paragraph 4 to the list of eligible activities in 44 CFR
77.6c, it reads: Project Scoping.
Activities that enable subapplicants to develop complete subapplications for eligible mitigation activities including but not limited to data development.
Fourth, the ASFPM commented that punishing a State for an individual communitys land use violation by withholding funding from the entire State as outlined in the proposed 44
CFR 80.19e2 seems mismatched and extreme, and suggested that withholding award or assistance be limited to the community that is in violation. The relationship between the State as the recipient, and a local community as a subrecipient is defined in 2 CFR 200.1, 200.332, and 200.339. The penalty of holding the State accountable for a community violation is consistent with the State acting as the recipient of the grant and being primarily responsible for compliance with grant terms. As a result, FEMA has determined to retain in 44 CFR 80.19e2 the option to enforce this penalty as a result of land use noncompliance. This is consistent with FEMAs current practice.
Fifth, the ASFPM identified the ongoing problem that States and communities are unable to access data on repetitive loss properties, severe repetitive loss properties, and National Flood Insurance Program NFIP insured structures due to FEMAs current restriction on privacy data. The ASFPM
stated that this information is needed for the purposes of FEMAs application processes and the development of hazard mitigation plans. FEMA
appreciates this feedback, is aware of this issue, and is currently working to address this problem throughout the Federal Insurance and Mitigation Administration FIMA. In working on this issue, it is FEMAs intent to arrive at a solution that will both protect government interests and property owners privacy, while also making the information that is needed accessible to communities.
Individual Citizen, Docket ID FEMA
201900110006
This individual citizen spoke to the value and benefits of nature-based solutions and suggested that FEMA
explicitly speak to nature-based solutions within the regulation. In response, FEMA notes that nature-based solutions are eligible under FMA under localized flood risk reduction projects or other activities as identified in a communitys hazard mitigation plan, as has been FEMAs current practice.
FEMA recognizes and embraces naturebased solutions as an approach to
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project design that can be applied to many different project types, but on its own is not a separate project type.
Therefore, FEMA does not intend to identify and speak to nature-based solutions as a specific project type within the regulation. However, FEMA
continues to advocate for the incorporation of nature-based solutions into mitigation activities funded through HMA grants.
Individual Citizen, Docket ID FEMA
201900110007
This individual citizen encouraged FEMA to allow for the use of eminent domain for the purpose of carrying out involuntary buyout projects. The commenter speaks to proposed 44 CFR
80.11a, which states Eligible acquisition projects are those where the property owner participates voluntarily, and the recipient/subrecipient will not use its eminent domain authority to acquire the property for the open space purposes should negotiations fail.
FEMA does not intend to change the voluntary component of 44 CFR 80.11;
however, FEMA offers clarification that this voluntary limitation is only applicable to open space projects.
Voluntary property owner participation is not required under other project types. For example, if a community wanted to submit an application for a flood retention or control project, it could exercise its eminent domain powers to acquire applicable parcels.
Furthermore, in response to this comment, FEMA notes that it is up to recipients to prioritize and submit projects for funding as outlined in 44
CFR 77.3b3.
III. Changes to Final Rule In response to the comment that noted inconsistencies with the regulatory text and Fiscal Year 2020 NOFOs for Flood Mitigation Assistance grants, the proposed 44 CFR 77.6c2vi now reads, Localized flood risk reduction projects that lessen the frequency or severity of flooding and decrease predicted flood damages, and that do not duplicate the flood prevention activities of other Federal agencies.
Non-localized flood risk reduction projects such as dikes, levees, floodwalls, seawalls, groins, jetties, dams and large-scale waterway channelization projects are not eligible unless the Administrator specifically determines in approving a mitigation plan that such activities are the most cost-effective mitigation activities for the National Flood Mitigation Fund.
In response to the comment that project scoping previously known as advance assistance is not listed as an
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