[Federal Register Volume 85, Number 29 (Wednesday, February 12, 2020)]
[Proposed Rules]
[Pages 7902-7909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02510]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Parts 59 and 64
[Docket ID FEMA-2019-0016]
RIN 1660-AA92
Revisions to Publication Requirements for Community Eligibility
Status Information Under the National Flood Insurance Program
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Emergency Management Agency (FEMA) proposes to
make two changes to its regulations regarding publication requirements
of community eligibility status information under the National Flood
Insurance Program (NFIP). First, FEMA proposes to replace outdated
regulations that require publication of community loss of eligibility
notices in the Federal Register with a requirement that FEMA publish
this information on the internet or by another comparable method.
Second, FEMA proposes to replace its requirement that FEMA maintain a
list of communities eligible for flood insurance in the Code of Federal
Regulations with a requirement that FEMA publish this list on the
internet or by another comparable method.
DATES: Comments must be received on or before April 13, 2020.
ADDRESSES: You may submit comments, identified by Docket ID FEMA-2019-
0016, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of
Chief Counsel, Federal Emergency Management Agency, 8NE, 500 C Street
SW, Washington, DC 20472.
FOR FURTHER INFORMATION CONTACT: Adrienne Sheldon, Supervisory
Emergency Management Specialist, Floodplain Management Division,
Federal Insurance & Mitigation Administration, Federal Emergency
Management Agency, 400 C Street SW, Washington, DC 20472, 202-212-3966,
or (email) [email protected].
SUPPLEMENTARY INFORMATION:
I. Public Participation
We encourage you to participate in this rulemaking by submitting
[[Page 7903]]
comments and related materials. We will consider all comments and
material received during the comment period.
If you submit a comment, identify the agency name and the docket ID
for this rulemaking, indicate the specific section of this document to
which each comment applies, and give the reason for each comment. You
may submit your comments and material by electronic means, mail, or
delivery to the address under the ADDRESSES section. Please submit your
comments and material by only one means.
Regardless of the method used for submitting comments or material,
all submissions will be posted, without change, to the Federal e-
Rulemaking Portal at http://www.regulations.gov, and will include any
personal information you provide. Therefore, submitting this
information makes it public. You may wish to read the Privacy and
Security Notice that is available via a link on the homepage of
www.regulations.gov.
Viewing comments and documents: For access to the docket to read
background documents or comments received, go to the Federal e-
Rulemaking Portal at http://www.regulations.gov. Background documents
and submitted comments may also be inspected at FEMA, Office of Chief
Counsel, 500 C Street SW, Washington, DC 20472-3100.
Public Meeting: We do not plan to hold a public meeting, but you
may submit a request for one at the address under the ADDRESSES section
explaining why one would be beneficial. If FEMA determines that a
public meeting would aid this rulemaking, it will hold one at a time
and place announced by a notice in the Federal Register.
II. Background
The National Flood Insurance Act of 1968, as amended (NFIA), Title
42 of the United States Code (U.S.C.) 4001 et seq., authorizes the
Administrator of FEMA to establish and carry out a National Flood
Insurance Program (NFIP) to enable interested persons to purchase
insurance against loss resulting from physical damage to or loss of
property arising from floods in the United States.\1\ Under the NFIA,
FEMA may only grant flood insurance to properties within communities
that have adopted adequate land use and control measures.\2\ The
statute authorizes FEMA to develop land use criteria consistent with
requirements laid out in the NFIA and to encourage the adoption and
enforcement of State and local measures implementing these criteria.\3\
FEMA regulations governing community eligibility for participation in
the NFIP are located at 44 CFR parts 59, 60, and 64.
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\1\ See 42 U.S.C. 4011(a).
\2\ See 42 U.S.C. 4022(a)(1).
\3\ See 42 U.S.C. 4102(c).
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NFIP regulations at 44 CFR 60.3, 60.4, and 60.5 contain community
eligibility requirements for flood insurance. If a community fails to
demonstrate to FEMA that it meets these requirements, or decides to
withdraw from the NFIP, FEMA may initiate probation, suspension, or
withdrawal procedures as described in 44 CFR 59.24. In the case of an
unintentional loss of eligibility, for instance if a community is
suspended for failing to enforce its floodplain regulations, FEMA
notifies the community of the upcoming loss directly and gives the
community an opportunity to correct the deficiency that triggered the
procedures. In cases of both intentional and unintentional loss of
eligibility, FEMA publishes a notice of the upcoming loss of
eligibility in the Federal Register as required by 44 CFR 59.24.
NFIP regulations at 44 CFR 64.6 state that flood insurance under
the NFIP is authorized for the communities set forth under Section 64.6
of the regulations. Due to the large number of communities eligible for
flood insurance and the relative frequency to changes to community
eligibility, maintaining a list of communities in FEMA's regulations is
not feasible; however, FEMA meets this requirement by publishing the
updated list of communities through periodic final rules in the Federal
Register. As explained in more detail below, FEMA last published an
updated list in the Federal Register in August 2006.
III. Proposed Rule: Section 59.24 Community Loss of Eligibility Notices
and Section 64.6 List of Communities Eligible for Flood Insurance
FEMA proposes to make two changes to these regulations to reduce
costs and streamline notice procedures. First, FEMA proposes to remove
the requirement contained in 44 CFR 59.24(a), (c), (d), and (e) that
community loss of eligibility notices be published in the Federal
Register, and add a requirement that FEMA publish the notices on the
internet or by another comparable method. Second, FEMA proposes to
revise 44 CFR 64.6 to remove the requirement that FEMA maintain a list
of communities eligible for flood insurance under the NFIA in the CFR.
Instead, the proposed revision would require publication and
maintenance of the list on the internet or through another comparable
method. These proposed changes would not impact the other notification
requirements found in 44 CFR 59.24. For example, in cases of
involuntary loss of eligibility, FEMA provides a minimum of three
written notices to a community's chief executive officer or other
designee over a several month period prior to the anticipated loss of
eligibility, and provides the community with an opportunity to correct
the defect. No substantive right of communities or stakeholders would
be impacted by this change.
The proposed changes are consistent with the NFIA. The NFIA directs
FEMA to certify communities for receipt of flood insurance under the
NFIP \4\ and lays out standards for land management,\5\ but leaves
community certification and decertification procedures, as well as
notification procedures, to FEMA's discretion. Consequently, these
proposed changes do not conflict with the NFIA.
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\4\ See 42 U.S.C. 4022(a)(1).
\5\ See 42 U.S.C. 4102(c).
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Sections Sec. 59.24 and Sec. 64.6 are outdated, and were
promulgated prior to the widespread use of the internet. FEMA initially
adopted the Federal Register publication requirement contained in Sec.
59.24 in 1971.\6\ Similarly, in 1971 FEMA substantially adopted the
requirement in Sec. 64.6 to maintain and publish the list of eligible
communities,\7\ with the current language adopted in 1976.\8\
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\6\ See 36 FR 18,175 and 18,179, discussing community loss of
eligibility procedures, then located at 24 CFR 1909.24. At 18,175,
the rulemaking notes that: ``A new Sec. 1909.24 has been added to
clarify the manner in which suspensions of flood insurance
eligibility will be handled . . .'' No further explanation is
provided, and loss of eligibility is not addressed in the associated
notice of proposed rulemaking, located at 36 FR 11,109.
\7\ See 36 FR 24,768, Sec. 1914.4.
\8\ See 41 FR 46,987, Sec. 1914.6.
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Section 59.24
Publishing the community loss of eligibility notices
electronically, in conjunction with the Community Status Book, would
increase the public visibility and accessibility of these notices, as
it is easier for the public to access the eligibility notices in a
single electronic format than it is for the public to find a Federal
Register notice specific to a particular community. In addition,
publishing community loss of eligibility notices in the Federal
Register requires FEMA to expend additional financial resources
compared to publication in an electronic format. Removing this
requirement will provide cost savings to the agency.
[[Page 7904]]
If these proposed regulatory changes are adopted, FEMA plans to
store the notices on its website, so that they are easily available to
all interested parties. Although FEMA has not yet created a digital
repository to store these notices, FEMA anticipates making a link to
these notices that is easily accessible from the Community Status Book.
FEMA's objective in the digital accessibility of these notices is to
make the notices easy for users to find, and FEMA welcomes suggestions
from the public on the best place on its website to house this database
of community eligibility notices.
FEMA proposes to store notices on its public facing website for a
minimum of 1 year after the notices are issued. FEMA welcomes input
from the public on whether a year is sufficient, or if a longer time-
period would be beneficial. After removal from FEMA's public-facing
website, FEMA will retain copies of the notices in accordance with all
statutory and regulatory requirements.
Section 64.6
Section 64.6 directs FEMA to maintain a list of communities
eligible for flood insurance under the NFIA in the CFR. FEMA maintains
an online Community Status Book containing this information. The
Community Status Book provides a list of which communities are, and are
not, eligible for flood insurance under the NFIP. The Community Status
Book is available for public viewing on the FEMA website at https://www.fema.gov/national-flood-insurance-program-community-status-book.
The Community Status Book is organized alphabetically by state and
community, so a stakeholder can easily identify the eligibility status
of his or her community. Because the information directed by Sec. 64.6
is already being published in the Community Status Book, the separate
list directed by Sec. 64.6 is duplicative and thus no longer needed.
FEMA has not updated the eligible community list, as directed by
Sec. 64.6, since August 28, 2006 \9\ because of the list's overlap
with the Community Status Book and the cost of publishing the updated
lists in the Federal Register. Instead, in an effort to comply with
Sec. 64.6, FEMA generates quarterly reports identifying changes to the
list of eligible communities. These quarterly reports are available
upon stakeholder request, but are not otherwise published. FEMA
generates these reports each quarter in order to partially comply with
Federal Register publication requirements. Generating these reports
requires FEMA to take the information contained in each notice and re-
format and consolidate the content into one list. Moving the list
updates fully online would eliminate the time and effort associated
with generating these reports, yielding cost savings for FEMA. FEMA
proposes to revise Sec. 64.6 to require that the agency publish and
maintain community eligibility information on the internet or through
another comparable method, as is currently being done through the
Community Status Book, because full compliance with Sec. 64.6 would be
burdensome to the agency and would not provide additional community
eligibility status information beyond what is currently maintained in
the Community Status Book.
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\9\ The last update to Sec. 64.6 in the Federal Register was
published on August 28, 2006. See 71 FR 50,856. Updates were made
regularly until that point in time, with several updates being
published each year.
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Transition
To aid in the transition to the new form of publication, FEMA would
publish brief notices once a month in the Federal Register for 6 months
after the effective date of the final rule, alerting stakeholders to
the change, and letting them know where to go to access community
status information.
IV. Regulatory Analysis
A. Executive Order 12866, Regulatory Planning and Review, Executive
Order 13563, Improving Regulation and Regulatory Review, and Executive
Order 13771, Reducing Regulation and Controlling Regulatory Costs
Executive Orders 13563 (``Improving Regulation and Regulatory
Review'') and 12866 (``Regulatory Planning and Review'') direct
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. Executive Order 13771 (``Reducing
Regulation and Controlling Regulatory Costs'') directs agencies to
reduce regulation and control regulatory costs and provides that ``for
every one new regulation issued, at least two prior regulations be
identified for elimination, and that the cost of planned regulations be
prudently managed and controlled through a budgeting process.''
The Office of Management and Budget (OMB) has not designated this
rule a ``significant regulatory action'' under section 3(f) of
Executive Order 12866. Accordingly, the rule has not been reviewed by
OMB.
1. Need for Regulatory Action
Under the NFIA, FEMA may only grant flood insurance to properties
within communities that have adopted adequate land use and control
measures.\10\ Pursuant to this statutory direction, FEMA has adopted
regulations governing community eligibility for participation in the
NFIP at 44 CFR parts 59, 60, and 64. These regulations include
requirements that a community follow certain steps to retain
eligibility for the NFIP. If a community fails to follow these
requirements or decides to withdraw from the NFIP, FEMA initiates loss
of eligibility procedures as described in 44 CFR 59.24 and publishes a
notice of the upcoming loss of eligibility in the Federal Register. In
addition, 44 CFR 64.6 states that flood insurance under the NFIP is
authorized for communities set forth under Section 64.6 of the
regulations, requiring FEMA to maintain a list of eligible communities
in the CFR. FEMA proposes to make two changes to the current
regulations.
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\10\ See 42 U.S.C. 4022(a)(1).
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First, FEMA proposes to remove the requirement pursuant to Sec.
59.24(a), (c), (d), and (e) to publish community loss of eligibility
notices in the Federal Register. In lieu of publication in the Federal
Register, the proposed rule would require that these notices be
published on the internet or by another comparable method. To aid in
the transition, FEMA would publish brief notices once a month in the
Federal Register for 6 months after the effective date of the final
rule, alerting stakeholders to the change.
Second, FEMA proposes to remove the requirement pursuant to Sec.
64.6 that FEMA maintain a list of eligible communities in the CFR. In
lieu of this requirement, the proposed rule would require FEMA to
publish and maintain a list of eligible communities on the internet or
through another comparable method.
These two proposed changes would result in reduced FEMA
expenditures. The proposed changes to Sec. 59.24 would also provide
faster and more user-friendly access to community loss of eligibility
information by requiring publication of the notices online instead of
in the Federal Register. In addition, these changes would direct FEMA
to consolidate community status
[[Page 7905]]
information into one location, allowing stakeholders to have more
streamlined access to community status-related information.
2. Baseline
Requirement to Publish Community Loss of Eligibility Notices in the
Federal Register
Community loss of eligibility notices were published a total of 245
times in the Federal Register from 2007 to 2016. Based on data from
these notices, FEMA calculates that on average, from 2007 to 2016, the
notices were published about 25 times per year, rounded to the nearest
whole number (245 divided by 10 = 24.5. 24.5 rounded to the nearest
whole number = 25).
Requirement to Publish the List of Eligible Communities in the CFR
With respect to the requirement for FEMA to maintain a list of
eligible communities in the CFR, FEMA notes that it currently maintains
this list online in the Community Status Book rather than in the
CFR.\11\ In addition, FEMA prepares quarterly reports in an attempt to
comply with the publication requirement contained in Sec. 64.6. The
quarterly preparation burden is approximately 15 hours per quarter at a
cost of $80 per hour, for a total of $4,800 each year (15 x 80 x
4).\12\ FEMA has not published the quarterly reports in the CFR since
2006 due to the recurring costs involved.
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\11\ The Community Status Book is available for public viewing
at https://www.fema.gov/national-flood-insurance-program-community-status-book.
\12\ Hourly rates derived from FEMA estimates based on prior
contracting benchmarks for this service.
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3. Costs
Community Loss of Eligibility Notices: internet Publication Costs
As a substitute for publishing the required community loss of
eligibility notices in the Federal Register, the proposed rulemaking
would require FEMA to publish community loss of eligibility notices
online. FEMA currently maintains a public website (www.fema.gov) where
similar notices, bulletins, and updates from across the agency are
published for public consumption. While there is no direct cost to
adding individual web pages or sections to the site, publishing
community loss of eligibility notices online would create labor costs
for staff who would need to develop a template to format and process
the notices for web publication.
FEMA plans an upcoming website re-design that would include more
versatile search functionality for the user, a more standardized look
and feel, increased search engine optimization, and better capture of
meta data. FEMA anticipates the use of this re-design in the analysis
of this proposed rulemaking. Development of this publication process
for online notices will be labor intensive at the beginning. Once a
template is created, each update will be less labor intensive than the
current practice.
FEMA staff expect it would take approximately 3 days of labor (24
hours) of a General Schedule (GS) Federal employee in the National
Capital Region, at the GS-14 level ($53.68 hourly wage),\13\ to
establish the publication process under the expected redesign. After
the publication process is established, FEMA anticipates that it would
take a GS-14 employee approximately thirty minutes per future
publication.
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\13\ Office of Personnel Management, 2017, Washington-Baltimore-
Arlington-DC-MD-VA-WV-PA, Hourly Rate, GS-14, Step 1. Available at
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/17Tables/html/DCB_h.aspx.
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The average 25 notices per year would result in a burden to FEMA of
$2,860.61 the first year (($53.68 x 1.46) \14\ x (24 + (0.5 x 25))) and
$979.66 each subsequent year (($53.68 x 1.46) x (0.5 x 25)) for a 10-
year total of $11,677.55 (1).
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\14\ Bureau of Labor Statistics, Employer Costs for Employee
Compensation, March, 2017, Table 1 Employer costs per hour worked
for employee compensation and costs as a percent of total
compensation: Civilian workers, by major occupational and industry
group. Available at https://www.bls.gov/news.release/archives/ecec_06092017.pdf. The per hour benefits multiplier is calculated by
dividing total compensation for all workers ($35.28) by wages and
salaries for all workers ($24.10), which yields a per hour benefits
multiplierof 1.46. ($35.28 / $24.10 = 1.4639). Fully-loaded wage
rates are calculated by multiplying the per hour benefits multiplier
by the applicable wage rate (1.46 per hour benefits multiplier x
$53.68 hourly wage rate = $78.37 fully-loaded hourly wage).
Table 1--Internet Publication Costs
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Initial internet Recurrent internet
Year publication burden publication burden Internet
(hours) (hours) publication cost
(a) (b) (= 0.25 x 25) (c) = (a x b) x
($59.91 x 1.46)
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1................................................... 24 12.5 $2,861
2................................................... .................. 12.5 980
3................................................... .................. 12.5 980
4................................................... .................. 12.5 980
5................................................... .................. 12.5 980
6................................................... .................. 12.5 980
7................................................... .................. 12.5 980
8................................................... .................. 12.5 980
9................................................... .................. 12.5 980
10.................................................. .................. 12.5 980
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Total........................................... 24 12.5 11,678
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Community Loss of Eligibility Notices: Transition/Phase-Out Costs
Upon the issuance of the final rule, FEMA would aid in the
transition from the publication of community loss of eligibility
notices in the Federal Register to their posting on FEMA's website by
publication of transitional announcements in the Federal Register.
These announcements would alert stakeholders of the new location of
these notices and they would be concise and tailored to notify
stakeholders of the FEMA web address where the
[[Page 7906]]
community loss of eligibility notices can be found. FEMA expects these
transitional announcements to publish once a month for a 6-month phase-
out period following the effective date of the rule.
Community Status Report: Cost Savings
FEMA proposes to remove the requirement pursuant to Sec. 64.6 that
FEMA maintain an updated list of eligible communities in the CFR. FEMA
does not currently publish updates to the list of communities eligible
for flood insurance in the CFR and already maintains an online
Community Status Book containing this information.\15\ FEMA prepares
quarterly reports on the current lists of communities in an attempt to
comply with the regulation. These reports are available upon
stakeholder request, although they are not published. Modifying the
regulations to eliminate the requirement to publish the list in the CFR
in favor of the list already maintained on FEMA's website (the
Community Status Book) would eliminate preparation of these lists and
save the quarterly preparation burden of approximately 15 hours per
quarter at $80 per hour,\16\ yielding a cost savings of $4,800 ($80 x
15 x 4) annually. This revision would save FEMA costs without affecting
policyholders or other stakeholders.
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\15\ The Community Status Book is available for public viewing
at https://www.fema.gov/national-flood-insurance-program-community-status-book.
\16\ Hourly rates derived from FEMA estimates based on prior
contracting benchmarks for this service.
Table 2--Net Cost Savings
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Internet Community
Year publication status report Net cost NPV at 3% NPV at 7%
cost cost savings savings
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1............................... $2,861 - $4,800 - $1,939 - $1,883 - $1,813
2............................... 980 -4,800 -3,820 -3,601 -3,337
3.............................. 980 -4,800 -3,820 -3,496 -3,119
4.............................. 980 -4,800 -3,820 -3,394 -2,915
5.............................. 980 -4,800 -3,820 -3,295 -2,724
6.............................. 980 -4,800 -3,820 -3,199 -2,546
7.............................. 980 -4,800 -3,820 -3,106 -2,379
8.............................. 980 -4,800 -3,820 -3,016 -2,223
9.............................. 980 -4,800 -3,820 -2,928 -2,078
10............................. $980 -4,800 -3,820 -2,843 -1,942
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Total....................... 11,678 -48,000 -36,322 -30,762 -25,075
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Annualized................. .............. .............. .............. -3,606 -3,570
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The net cost savings expected from this rulemaking are presented in
2. The up-front transition costs are only expected to take place in
Year 1, thus the cost savings expected over the subsequent years are
not impacted. For the 10-year period analyzed, the estimated quantified
discounted total cost savings at 7 and 3 percent are $25,075
(annualized at $3,570) and $30,762 (annualized at $3,606),
respectively.
4. Benefits
Revising 59.24 to eliminate the Federal Register publication
requirements would allow FEMA to be more agile and timely in updating
community status information. In contrast, continued updates through
the Federal Register would be slower, more expensive to FEMA, and
present the information in a format that is less accessible to
stakeholders.
In addition, making this change to 59.24, and updating FEMA's
regulations in 64.6, would locate all information related to community
status and eligibility for flood insurance in one place that is well
known by stakeholders. This consolidation would improve the ease and
efficiency of locating community status and eligibility information for
stakeholders and for FEMA.
5. Transfers
Transfer payments are monetary payments from one group to another
that do not affect total resources available to society. There are no
anticipated transfer payments resulting from the proposed rulemaking.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency
review of proposed and final rules to assess their impact on small
entities. An agency must prepare an initial regulatory flexibility
analysis (IRFA) unless it determines and certifies that a rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities. FEMA does not believe this
proposed rule would have a significant economic impact on a substantial
number of small entities. Nonetheless, FEMA is publishing this IRFA to
aid the public in commenting on the potential small entity impacts of
the proposed requirements in this NPRM. FEMA invites all interested
parties to submit data and information regarding the potential direct
costs on small entities that would result from the adoption of this
NPRM. FEMA will consider all comments received in the public comment
process.
The Regulatory Flexibility Act requires an IRFA to contain certain
analyses. First, an IRFA describes the reasons why the action by the
agency is being considered. Second, it must succinctly state the
objectives of, and legal basis for, the proposed rule. Third, it must
describe--and, where feasible, estimate the number--of small entities
to which the proposed rule would apply. Fourth, it must describe the
projected reporting, record keeping, and other compliance requirements
of the proposed rule, including an estimate of the classes of small
entities that will be subject to the requirements and the types of
professional skills necessary for preparation of the report or record.
Fifth, it must identify, to the extent practicable, all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule. Lastly, it must
[[Page 7907]]
describe significant alternatives to the rule.
1. A Description of the Reasons Why Action by the Agency Is Being
Considered
FEMA proposes to remove the Federal Register publication
requirement from Sec. 59.24, and instead require that these notices be
published on the internet or by another comparable method. In addition,
FEMA proposes to modify Sec. 64.6 to require FEMA to publish and
maintain a list of eligible communities online or through another
comparable method. These changes would result in reduced FEMA
expenditures and provide faster and more user-friendly publications.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The National Flood Insurance Act of 1968, as amended (NFIA), Title
42 of the United States Code (U.S.C.) 4001 et seq., authorizes the
Administrator of the Federal Emergency Management Agency (FEMA) to
establish and carry out a National Flood Insurance Program (NFIP) to
enable interested persons to purchase insurance against loss resulting
from physical damage to or loss of property arising from floods in the
United States.\17\ Under the NFIA, FEMA may only grant flood insurance
to properties within communities that have adopted adequate land use
and control measures.\18\ The statute gives the FEMA Administrator
authority to develop land use criteria consistent with requirements
laid out in NFIA and to encourage the adoption and enforcement of State
and local measures implementing these criteria.\19\ Pursuant to this
statutory direction, FEMA has adopted regulations governing community
eligibility for participation in the NFIP at 44 CFR parts 59 and 60,
and 64.
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\17\ See 42 U.S.C. 4011(a).
\18\ See 42 U.S.C. 4022(a)(1).
\19\ See 42 U.S.C. 4102(c).
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FEMA proposes to make two changes to regulations to cut costs for
FEMA and streamline notice procedures. First, FEMA proposes to remove
the requirement from Sec. 59.24 that notices regarding loss of
eligibility be published in the Federal Register, and instead proposes
requiring that theses notices be published on the internet or through
another comparable method. Second, FEMA proposes to revise Sec. 64.6,
which directs FEMA to maintain a list of eligible communities in the
CFR and proposes that FEMA instead publish and maintain a list of
eligible communities online or through another comparable method. This
proposed rule would not impact other forms of notice to communities,
nor would it impact the substantive rights of communities or
stakeholders.
3. A Description of and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
``Small entity'' is defined in 5 U.S.C. 601. The term ``small
entity'' can have the same meaning as the terms ``small business,''
``small organization'' and ``small governmental jurisdiction.'' Section
601(3) defines a ``small business'' as having the same meaning as
``small business concern'' under Section 3 of the Small Business Act.
This includes any small business concern that is independently owned
and operated and is not dominant in its field of operation. Section
601(4) defines a ``small organization'' as any not-for-profit
enterprises that are independently owned and operated and are not
dominant in their field of operation. Section 601(5) defines ``small
governmental jurisdictions'' as governments of cities, counties, towns,
townships, villages, school districts, or special districts with a
population of less than 50,000.
This rule does not directly regulate any small entities. As
previously described, this rule only changes how FEMA shares loss of
community eligibility notices and community status information. FEMA
used the US Census Bureau's 2012 Census of Government \20\ to estimate
the number of small governmental jurisdictions in the United States.
According to the U.S. Census, there are 38,910 jurisdictions consisting
of counties, municipalities and townships within the United States.
Among these, 37,132 would qualify as small governmental jurisdictions,
which would equate to a 95.4 percent of all U.S. governmental
jurisdictions. Applying this percentage to the 22,269 communities
currently participating in the National Flood Insurance Program (NFIP)
\21\ results in an estimated 21,245 small governmental
jurisdictions.\22\ Individual policyholders are not considered small
entities.
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\20\ See U.S. Census Bureau, ``2012 Census of Governments, Local
Governments by Type and State 2012,'' Table 2, September 26, 2013,
available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk.
\21\ The number of NFIP communities is derived from ``The
National Flood Insurance Program Community Status Book,'' Page 478,
located at https://www.fema.gov/national-flood-insurance-program-community-status-book.
\22\ The number of small government jurisdictions equals 22,269
multiplied by 0.954.
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FEMA seeks comments on the methodology and assumptions used to
determine the number of small entities impacted by this proposed rule.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will be Subject to the Requirement
and the Types of Professional Skills Necessary for Preparation of the
Report or Record
Currently, FEMA anticipates this rule would not impose any direct
costs on small entities and anticipates that the proposed rule would
allow easier access to information about flood insurance eligibility.
This proposed rulemaking does not consist of any substantive policy
changes. FEMA does not anticipate an increase in administrative burdens
to small entities from this proposed rule.
5. An Identification, to the Extent Practicable, of all Relevant
Federal Rules Which may Duplicate, Overlap, or Conflict With the
Proposed Rule
There are no relevant Federal rules that may duplicate, overlap, or
conflict with the proposed rule.
6. A Description of Any Significant Alternatives to the Proposed Rule
Which Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
Given that this rule is largely procedural in nature, with no
direct costs on small entities, no less burdensome alternatives to the
proposed rule are available. In the absence of this proposed rule,
small entities would continue to receive the loss of community
eligibility notices through Federal Register publications. Community
status information would continue to be maintained on FEMA's website.
FEMA invites all interested parties to submit data and information
regarding the potential economic impact that would result from adoption
of the proposals in this NPRM. FEMA will consider all comments received
in the public comment process. After reviewing the public comments,
FEMA may certify the final rule as not having a significant economic
impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504,
1531-
[[Page 7908]]
1536, 1571, pertains to any rulemaking which is likely to result in the
promulgation of any rule that includes a Federal mandate that may
result in the expenditure by State, local, and Tribal governments, in
the aggregate, or by the private sector, of $100 million (adjusted
annually for inflation) or more in any one year. If the rulemaking
includes a Federal mandate, the Act requires an agency to prepare an
assessment of the anticipated costs and benefits of the Federal
mandate. The Act also pertains to any regulatory requirements that
might significantly or uniquely affect small governments. Before
establishing any such requirements, an agency must develop a plan
allowing for input from the affected governments regarding the
requirements.
FEMA has determined that this rulemaking would not result in the
expenditure by State, local, and Tribal governments, in the aggregate,
nor by the private sector, of $100 million (adjusted annually for
inflation) or more in any one year as a result of a Federal mandate,
and it would not significantly or uniquely affect small governments.
Therefore, no actions are deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
C. Paperwork Reduction Act of 1995
As required by the Paperwork Reduction Act of 1995 (PRA), Public
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.),
FEMA may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the collection of
information displays a valid control number. FEMA collects community
information for the purposes of application to the NFIP under OMB
Control Number 1660-0004, Application for Participation in the National
Flood Insurance Program (NFIP).\23\ However, FEMA has determined that
this rulemaking does not impact this information collection or any
other collection of information as defined by the Act.
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\23\ See 44 CFR 59.22 for a description of the information
collected.
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D. Privacy Act/E-Government Act
Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must
determine whether implementation of a proposed regulation will result
in a system of records. A ``record'' is any item, collection, or
grouping of information about an individual that is maintained by an
agency, including, but not limited to, his/her education, financial
transactions, medical history, and criminal or employment history and
that contains his/her name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a finger or
voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ``system of
records'' is a group of records under the control of an agency from
which information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to
the individual. An agency cannot disclose any record which is contained
in a system of records except by following specific procedures.
The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires
specific procedures when an agency takes action to develop or procure
information technology that collects, maintains, or disseminates
information that is in an identifiable form. This Act also applies when
an agency initiates a new collection of information that will be
collected, maintained, or disseminated using information technology if
it includes any information in an identifiable form permitting the
physical or online contacting of a specific individual.
In accordance with Department of Homeland Security privacy
compliance policy, FEMA has completed a Privacy Threshold Analysis for
this proposed rule. DHS determined that this proposed rule is not
privacy sensitive, as it does not affect the information collected
about an individual. FEMA's original collection and maintenance of NFIP
related personally identifiable information has coverage under the DHS/
FEMA-003--National Flood Insurance Program Files, 79 FR 28747 (May 19,
2014) System of Records Notice and the DHS/FEMA/PIA--011 National Flood
Insurance Program Information Technology System Privacy Impact
Assessment. This proposed rule does not impact this existing system of
record, create a new system of record, nor impact the current Privacy
Impact Assessment. Therefore, this proposed rule does not require
coverage under an existing or new Privacy Impact Assessment or System
of Records Notice.
E. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments,'' 65 FR 67249, November 9, 2000, applies to agency
regulations that have Tribal implications, that is, regulations that
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. Under this Executive Order, to the extent
practicable and permitted by law, no agency shall promulgate any
regulation that has Tribal implications, that imposes substantial
direct compliance costs on Indian Tribal governments, and that is not
required by statute, unless funds necessary to pay the direct costs
incurred by the Indian Tribal government or the Tribe in complying with
the regulation are provided by the Federal Government, or the agency
consults with Tribal officials.
Although Tribes that meet the NFIP eligibility criteria can
participate in the NFIP in the same manner as communities,\24\ FEMA has
reviewed this proposed rule under Executive Order 13175 and has
determined that this proposed rule does not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
This proposed rule modernizes notice requirements for community loss of
eligibility information and community status information; therefore,
FEMA does not expect the regulatory changes in this proposed rule to
substantially or disproportionately affect Indian Tribal governments
acting as communities under the NFIP.
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\24\ Although the NFIP does not explicitly reference Tribal
Governments, FEMA includes Tribal nations in its definition of a
community. See 44 CFR 59.1.
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F. Executive Order 13132, Federalism
Executive Order 13132, ``Federalism,'' 64 FR 43255, August 10,
1999, sets forth principles and criteria that agencies must adhere to
in formulating and implementing policies that have federalism
implications, that is, regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Federal
agencies must closely examine the statutory authority supporting any
action that would limit the policymaking discretion of the States, and
to the extent practicable, must consult with State and local officials
before implementing any such action.
FEMA has determined that this rulemaking does not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the
[[Page 7909]]
distribution of power and responsibilities among the various levels of
government, and therefore does not have federalism implications as
defined by the Executive Order. This rulemaking seeks to modernize
notice requirements for community loss of eligibility information and
community status information under the NFIP; therefore, the rule does
not impact the substantive rights, roles, or responsibilities of
States, and does not limit State policymaking discretion.
G. National Environmental Policy Act of 1969 (NEPA)
Under the National Environmental Policy Act of 1969 (NEPA), as
amended, 42 U.S.C. 4321 et seq., an agency must prepare an
environmental assessment or environmental impact statement for any
rulemaking that significantly affects the quality of the human
environment. FEMA has determined that this rulemaking does not
significantly affect the quality of the human environment and
consequently has not prepared an environmental assessment or
environmental impact statement.
Rulemaking is a major Federal action subject to NEPA. Categorical
exclusion A3 included in the list of exclusion categories at Department
of Homeland Security Instruction Manual 023-01-001-01, Revision 01,
Implementation of the National Environmental Policy Act, Appendix A,
issued November 6, 2014, covers the promulgation of rules, issuance of
rulings or interpretations, and the development and publication of
policies, orders, directives, notices, procedures, manuals, and
advisory circulars if they meet certain criteria provided in A3(a-f).
This notice of proposed rulemaking meets Categorical Exclusion A3(d),
``Those that interpret or amend an existing regulation without changing
its environmental effect''.
H. Congressional Review of Agency Rulemaking
Under the Congressional Review of Agency Rulemaking Act (CRA), 5
U.S.C. 801-808, before a rule can take effect, the Federal agency
promulgating the rule must submit to Congress and to the Government
Accountability Office (GAO) a copy of the rule; a concise general
statement relating to the rule, including whether it is a major rule;
the proposed effective date of the rule; a copy of any cost-benefit
analysis; descriptions of the agency's actions under the Regulatory
Flexibility Act and the Unfunded Mandates Reform Act; and any other
information or statements required by relevant executive orders.
FEMA will send this rule to the Congress and to GAO pursuant to the
CRA if the rule is finalized. The rule is not a ``major rule'' within
the meaning of the CRA. It will not have an annual effect on the
economy of $100,000,000 or more; it will not result in a major increase
in costs or prices for consumers, individual industries, Federal,
State, or local government agencies, or geographic regions; and it will
not have significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and export markets.
List of Subjects
44 CFR Part 59
Flood insurance, Reporting and recordkeeping requirements.
44 CFR Part 64
Flood insurance, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Federal Emergency
Management Agency proposes to amend 44 CFR parts 59 and 64 as follows:
PART 59--GENERAL PROVISIONS
0
1. The authority citation for part 59 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31,
1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.
0
2. Amend Sec. 59.24 by:
0
a. Revising the fourth sentence of paragraph (a);
0
b. Revising the fourth sentence of paragraph (c);
0
c. Revising the second sentence of paragraph (d);
0
d. Revising the second sentence of paragraph (e).
The revisions read as follows:
Sec. 59.24 Suspension of Community Eligibility.
(a) * * * If, subsequently, copies of adequate flood plain
management regulations are not received by the Administrator, no later
than 30 days before the expiration of the original six month period the
Federal Insurance Administrator shall provide written notice to the
community and to the state and assure publication of the community's
loss of eligibility for the sale of flood insurance on the internet or
by another comparable method, such suspension to become effective upon
the expiration of the six month period. * * *
* * * * *
(c) * * * If a community is to be suspended, the Federal Insurance
Administrator shall inform it upon 30 days prior written notice and
upon publication of its loss of eligibility for the sale of flood
insurance on the internet or by another comparable method. * * *
(d) * * * If a community is to be suspended, the Federal Insurance
Administrator shall inform it upon 30 days prior written notice and
upon publication of its loss of eligibility for the sale of flood
insurance on the internet or by another comparable method. * * *
(e) * * * Upon receipt of a certified copy of a final legislative
action, the Federal Insurance Administrator shall withdraw the
community from the Program and publish its loss of eligibility for the
sale of flood insurance on the internet or by another comparable
method. * * *
* * * * *
PART 64--COMMUNITIES ELIGIBLE FOR THE SALE OF INSURANCE
0
3. The authority citation for part 64 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq., Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
0
4. Revise Sec. 64.6 to read as follows:
Sec. 64.6 List of eligible communities.
FEMA will maintain a list of communities eligible for the sale of
flood insurance pursuant to the National Flood Insurance Program (42
U.S.C. 4001-4128). This list will be published and maintained on the
internet or through another comparable method.
* * * * *
Pete Gaynor,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2020-02510 Filed 2-11-20; 8:45 am]
BILLING CODE 9111-47-P