42 U.S.C. § 4104 — Flood elevation determinations

Page 6068 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 4102a 112–141, div. F, title II, § 100238(b)(1), July 6, 2012, 126 Stat. 958; Pub. L. 113–89, § 26(a)(1), Mar. 21, 2014, 128 Stat. 1032.) Editorial Notes AMENDMENTS 2014—Subsec. (d). Pub. L. 113–89 added subsec. (d). 2012—Subsecs. (a), (c). Pub. L. 112–141 substituted ‘‘Administrator’’ for ‘‘Director’’. 1983—Subsecs. (a), (c). Pub. L. 98–181 substituted ‘‘Di- rector’’ for ‘‘Secretary’’. 1969—Subsec. (c). Pub. L. 91–152 substituted provisions requiring development of criteria designed to encour- age adoption of adequate State and local measures, for provisions requiring development of criteria designed to encourage adoption of permanent State and local measures. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 120 days following Aug. 1, 1968, or such later date prescribed by the Secretary but in no event more than 180 days following Aug. 1, 1968, see sec- tion 1377 of Pub. L. 90–448, set out as a note under sec- tion 4001 of this title. TRANSFER OF FUNCTIONS For transfer of all functions, personnel, assets, com- ponents, authorities, grant programs, and liabilities of the Federal Emergency Management Agency, including the functions of the Under Secretary for Federal Emer- gency Management relating thereto, to the Federal Emergency Management Agency, see section 315(a)(1) of Title 6, Domestic Security. For transfer of functions, personnel, assets, and li- abilities of the Federal Emergency Management Agen- cy, including the functions of the Director of the Fed- eral Emergency Management Agency relating thereto, to the Secretary of Homeland Security, and for treat- ment of related references, see former section 313(1) and sections 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. GUIDELINES Pub. L. 113–89, § 26(a)(2), Mar. 21, 2014, 128 Stat. 1032, provided that: ‘‘The Administrator [of the Federal Emergency Management Agency] shall issue the guide- lines required under section 1361(d) of the National Flood Insurance Act of 1968 (42 U.S.C. 4102(d)), as added by the amendment made by paragraph (1) of this sub- section, not later than the expiration of the 1-year pe- riod beginning on the date of the enactment of this Act [Mar. 21, 2014].’’ TASK FORCE ON NATURAL AND BENEFICIAL FUNCTIONS OF THE FLOODPLAIN Pub. L. 103–325, title V, § 562, Sept. 23, 1994, 108 Stat. 2276, established the Task Force on Natural and Bene- ficial Functions of the Floodplain to conduct a study on the functions of the floodplain that reduce flood-re- lated losses and provided for its termination 24 months after its last member was designated. § 4102a. Repealed. Pub. L. 112–141, div. F, title II, § 100225(c), July 6, 2012, 126 Stat. 941 Section, Pub. L. 90–448, title XIII, § 1361A, as added Pub. L. 108–264, title I, § 102(a), June 30, 2004, 118 Stat. 714, created a pilot program for mitigation of severe re- petitive loss properties by mitigating flood damage to such properties and losses to the National Flood Insur- ance Fund from such properties. § 4103. Repealed. Pub. L. 103–325, title V, § 551(a), Sept. 23, 1994, 108 Stat. 2269 Section, Pub. L. 90–448, title XIII, § 1362, Aug. 1, 1968, 82 Stat. 588; Pub. L. 95–128, title VII, § 704(b), Oct. 12, 1977, 91 Stat. 1145; Pub. L. 98–181, title I [title IV, § 451(d)(1)], Nov. 30, 1983, 97 Stat. 1229, related to pur- chase, by Director, of insured properties damaged sub- stantially beyond repair by flood, for subsequent trans- fer to State or local agency upon negotiated conditions. Statutory Notes and Related Subsidiaries SAVINGS PROVISION Pub. L. 103–325, title V, § 551(c), Sept. 23, 1994, 108 Stat. 2269, required the Director of the Federal Emergency Management Agency to comply with any purchase or loan commitment entered into before the expiration of the 1-year period beginning on Sept. 23, 1994, pursuant to authority under this section or section 551(b) of Pub. L. 103–325. TRANSITION PHASE Pub. L. 103–325, title V, § 551(b), Sept. 23, 1994, 108 Stat. 2269, permitted the Director of the Federal Emer- gency Management Agency to enter into loan and pur- chase commitments as provided under this section (as in effect immediately before the enactment of Pub. L. 103–325) during the 1-year period beginning on Sept. 23, 1994. § 4104. Flood elevation determinations (a) Publication or notification of proposed flood elevation determinations In establishing projected flood elevations and designating areas having special flood hazards for land use purposes with respect to any com- munity pursuant to section 4102 of this title, the Administrator shall first propose such deter- minations and designations by publication for comment in the Federal Register, by direct noti- fication to the chief executive officer of the community, and by publication in a prominent local newspaper. (b) Publication of flood elevation determinations; appeal of owner or lessee to local govern- ment; scientific or technical knowledge or in- formation as basis for appeal; modification of proposed determinations The Administrator shall publish notification of flood elevation determinations and designa- tions of areas having special flood hazards in a prominent local newspaper at least twice during the ten-day period following notification to the local government. During the ninety-day period following the second publication, any owner or lessee of real property within the community who believes his property rights to be adversely affected by the Administrator’s proposed deter- mination may appeal such determination to the local government. The sole grounds for appeal shall be the possession of knowledge or informa- tion indicating that (1) the elevations being pro- posed by the Administrator with respect to an identified area having special flood hazards are scientifically or technically incorrect, or (2) the designation of an identified special flood hazard area is scientifically or technically incorrect. Page 6069 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 4104 (c) Appeals by private persons; submission of negativing or contradicting data to commu- nity; opinion of community respecting jus- tification for appeal by community; trans- mission of individual appeals to Adminis- trator; filing of community action with Ad- ministrator Appeals by private persons shall be made to the chief executive officer of the community, or to such agency as he shall publicly designate, and shall set forth the data that tend to negate or contradict the Administrator’s finding in such form as the chief executive officer may specify. The community shall review and con- solidate all such appeals and issue a written opinion stating whether the evidence presented is sufficient to justify an appeal on behalf of such persons by the community in its own name. Whether or not the community decides to appeal the Administrator’s determination, copies of in- dividual appeals shall be sent to the Adminis- trator as they are received by the community, and the community’s appeal or a copy of its de- cision not to appeal shall be filed with the Ad- ministrator not later than ninety days after the date of the second newspaper publication of the Administrator’s notification. (d) Administrative review of appeals by private persons; modification of proposed determina- tions; decision of Administrator: form and distribution In the event the Administrator does not re- ceive an appeal from the community within the ninety days provided, he shall consolidate and review on their own merits, in accordance with the procedures set forth in subsection (e), the appeals filed within the community by private persons and shall make such modifications of his proposed determinations as may be appro- priate, taking into account the written opinion, if any, issued by the community in not sup- porting such appeals. The Administrator’s deci- sion shall be in written form, and copies thereof shall be sent both to the chief executive officer of the community and to each individual appel- lant. (e) Administrative review of appeals by commu- nity; agencies for resolution of conflicting data; availability of flood insurance pending such resolution; time for determination of Administrator; community adoption of local land use and control measures within rea- sonable time of final determination; public inspection and admissibility in evidence of reports and other administrative information Upon appeal by any community, as provided by this section, the Administrator shall review and take fully into account any technical or sci- entific data submitted by the community that tend to negate or contradict the information upon which his proposed determination is based. The Administrator shall resolve such appeal by consultation with officials of the local govern- ment involved, by administrative hearing, or by submission of the conflicting data to the Sci- entific Resolution Panel provided for in section 4104–1 of this title. Until the conflict in data is resolved, and the Administrator makes a final determination on the basis of his findings in the Federal Register, and so notifies the governing body of the community, flood insurance pre- viously available within the community shall continue to be available, and no person shall be denied the right to purchase such insurance at chargeable rates. The Administrator shall make his determination within a reasonable time. The community shall be given a reasonable time after the Administrator’s final determination in which to adopt local land use and control meas- ures consistent with the Administrator’s deter- mination. The reports and other information used by the Administrator in making his final determination shall be made available for public inspection and shall be admissible in a court of law in the event the community seeks judicial review as provided by this section. (f) Reimbursement of certain expenses When, incident to any appeal under subsection (b) or (c) of this section, the owner or lessee of real property or the community, as the case may be, or, in the case of an appeal that is re- solved by submission of conflicting data to the Scientific Resolution Panel provided for in sec- tion 4104–1 of this title, the community, incurs expense in connection with the services of sur- veyors, engineers, or similar services, but not including legal services, in the effecting of an appeal based on a scientific or technical error on the part of the Federal Emergency Management Agency, which is successful in whole or part, the Administrator shall reimburse such individual or community to an extent measured by the ratio of the successful portion of the appeal as compared to the entire appeal and applying such ratio to the reasonable value of all such serv- ices, but no reimbursement shall be made by the Administrator in respect to any fee or expense payment, the payment of which was agreed to be contingent upon the result of the appeal. The Administrator may use such amounts from the National Flood Insurance Fund established under section 4017 of this title as may be nec- essary to carry out this subsection. The Admin- istrator shall promulgate regulations to carry out this subsection. (g) Judicial review of final administrative deter- minations; venue; time for appeal; scope of review; good cause for stay of final deter- minations Except as provided in section 4104–1 of this title, any appellant aggrieved by any final deter- mination of the Administrator upon administra- tive appeal, as provided by this section, may ap- peal such determination to the United States district court for the district within which the community is located not more than sixty days after receipt of notice of such determination. The scope of review by the court shall be as pro- vided by chapter 7 of title 5. During the pend- ency of any such litigation, all final determina- tions of the Administrator shall be effective for the purposes of this chapter unless stayed by the court for good cause shown. (Pub. L. 90–448, title XIII, § 1363, as added Pub. L. 93–234, title I, § 110, Dec. 31, 1973, 87 Stat. 980; amended Pub. L. 95–128, title VII, § 704(c), Oct. 12, 1977, 91 Stat. 1146; Pub. L. 98–181, title I [title IV, § 451(d)(1)], Nov. 30, 1983, 97 Stat. 1229; Pub. L. Page 6070 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 4104–1 112–141, div. F, title II, §§ 100217, 100218(b), 100238(b)(1), (2), 100246, July 6, 2012, 126 Stat. 930, 932, 958, 967; Pub. L. 113–89, § 18(a), Mar. 21, 2014, 128 Stat. 1027.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (g), was in the original a reference to ‘‘this title’’ meaning title XIII of Pub. L. 90–448, Aug. 1, 1968, 82 Stat. 572, known as the National Flood Insurance Act of 1968, which is classi- fied principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 4001 of this title and Tables. AMENDMENTS 2014—Subsec. (f). Pub. L. 113–89 inserted ‘‘or, in the case of an appeal that is resolved by submission of con- flicting data to the Scientific Resolution Panel pro- vided for in section 4104–1 of this title, the commu- nity,’’ after ‘‘as the case may be,’’ and substituted ‘‘The Administrator may use such amounts from the Na- tional Flood Insurance Fund established under section 4017 of this title as may be necessary to carry out this subsection.’’ for ‘‘The amounts available for imple- menting this subsection shall not exceed $250,000.’’ 2012—Subsec. (a). Pub. L. 112–141, § 100238(b)(1), sub- stituted ‘‘Administrator’’ for ‘‘Director’’. Pub. L. 112–141, § 100217(1), inserted ‘‘and designating areas having special flood hazards’’ after ‘‘flood ele- vations’’ and substituted ‘‘such determinations and designations’’ for ‘‘such determinations’’. Subsec. (b). Pub. L. 112–141, § 100238(b)(1), (2), sub- stituted ‘‘Administrator’’ for ‘‘Director’’ in first sen- tence and ‘‘Administrator’s’’ for ‘‘Director’s’’ in second sentence. Pub. L. 112–141, § 100217(2), inserted ‘‘and designations of areas having special flood hazards’’ after ‘‘flood ele- vation determinations’’ and substituted ‘‘The sole grounds for appeal shall be the possession of knowledge or information indicating that (1) the elevations being proposed by the Administrator with respect to an iden- tified area having special flood hazards are scientif- ically or technically incorrect, or (2) the designation of an identified special flood hazard area is scientifically or technically incorrect.’’ for ‘‘The sole basis for such appeal shall be the possession of knowledge or informa- tion indicating that the elevations being proposed by the Director with respect to an identified area having special flood hazards are scientifically or technically incorrect, and the sole relief which shall be granted under the authority of this section in the event that such appeal is sustained in accordance with subsection (e) or (f) of this section is a modification of the Direc- tor’s proposed determination accordingly.’’ Subsecs. (c), (d). Pub. L. 112–141, § 100238(b)(1), (2), sub- stituted ‘‘Administrator’’ for ‘‘Director’’ and ‘‘Adminis- trator’s’’ for ‘‘Director’s’’ wherever appearing. Subsec. (e). Pub. L. 112–141, § 100238(b)(1), (2), sub- stituted ‘‘Administrator’’ for ‘‘Director’’ wherever ap- pearing and ‘‘Administrator’s’’ for ‘‘Director’s’’ in two places. Pub. L. 112–141, § 100218(b)(1), substituted ‘‘the Sci- entific Resolution Panel provided for in section 4104–1 of this title’’ for ‘‘an independent scientific body or ap- propriate Federal agency for advice’’. Subsec. (f). Pub. L. 112–141, § 100246, added subpar. (f) and struck out former subpar. (f) which read as follows: ‘‘When, incident to any appeal under subsection (b) or (c) of this section, the owner or lessee of real property or the community, as the case may be, incurs expense in connection with the services of surveyors, engineers, or similar services, but not including legal services, in the effecting of an appeal which is successful in whole or part, the Director shall reimburse such individual or community to an extent measured by the ratio of the successful portion of the appeal as compared to the en- tire appeal and applying such ratio to the reasonable value of all such services, but no reimbursement shall be made by the Director in respect to any fee or ex- pense payment, the payment of which was agreed to be contingent upon the result of the appeal. There is au- thorized to be appropriated for purposes of imple- menting this subsection, not to exceed $250,000.’’ Subsec. (g). Pub. L. 112–141, § 100238(b)(1), substituted ‘‘Administrator’’ for ‘‘Director’’ in two places. Pub. L. 112–141, § 100218(b)(2), substituted ‘‘Except as provided in section 4104–1 of this title, any appellant’’ for ‘‘Any appellant’’. 1983—Pub. L. 98–181 substituted ‘‘Director’’ for ‘‘Sec- retary’’ and ‘‘Director’s’’ for ‘‘Secretary’s’’ wherever appearing. 1977—Subsecs. (f), (g). Pub. L. 95–128 added subsec. (f) and redesignated former subsec. (f) as (g). Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS For transfer of all functions, personnel, assets, com- ponents, authorities, grant programs, and liabilities of the Federal Emergency Management Agency, including the functions of the Under Secretary for Federal Emer- gency Management relating thereto, to the Federal Emergency Management Agency, see section 315(a)(1) of Title 6, Domestic Security. For transfer of functions, personnel, assets, and li- abilities of the Federal Emergency Management Agen- cy, including the functions of the Director of the Fed- eral Emergency Management Agency relating thereto, to the Secretary of Homeland Security, and for treat- ment of related references, see former section 313(1) and sections 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. § 4104–1. Scientific Resolution Panel (a) Availability (1) In general Pursuant to the authority provided under section 4104(e) of this title, the Administrator shall make available an independent review panel, to be known as the Scientific Resolu- tion Panel, to any community— (A) that has— (i) filed a timely map appeal in accord- ance with section 4104 of this title; (ii) completed 60 days of consultation with the Federal Emergency Management Agency on the appeal; and (iii) not allowed more than 120 days, or such longer period as may be provided by the Administrator by waiver, to pass since the end of the appeal period; or (B) that has received an unsatisfactory ruling under the map revision process estab- lished pursuant to section 4101(f) of this title. (2) Appeals by owners and lessees If a community and an owner or lessee of real property within the community appeal a proposed determination of a flood elevation under section 4104(b) of this title, upon the re- quest of the community— (A) the owner or lessee shall submit sci- entific and technical data relating to the ap- peals to the Scientific Resolution Panel; and (B) the Scientific Resolution Panel shall make a determination with respect to the appeals in accordance with subsection (c). (3) Definition For purposes of paragraph (1)(B), an ‘‘unsat- isfactory ruling’’ means that a community—