C.2. Subapplicant Mitigation Plan Requirements

All subapplicants for BRIC and FMA must have an approved local or tribal mitigation plan by the application deadline and at the time of obligation of grant assistance, unless otherwise noted by the applicable NOFO^[86]. All subapplicants (except for private nonprofits) for HMGP and HMGP Post Fire must have an approved local or tribal mitigation plan at the time of obligation of grant assistance^[87]. Private nonprofit subapplicants do not have mitigation plan requirements as a condition of subapplicant eligibility. While a private nonprofit does not need to have a local or tribal mitigation plan itself, the jurisdiction in which the proposed activity is located must have a current, FEMA-approved local or tribal mitigation plan. Subapplicants without current mitigation plans may apply to any of the HMA programs for assistance to develop a new plan. State agencies are eligible subapplicants under HMGP, HMGP Post Fire, BRIC or FMA; a FEMA-approved state mitigation plan is required as a condition of the state agencies receiving assistance. ^[88]

The way tribal governments apply as a subapplicant determines how the tribe must meet the mitigation requirement. The three scenarios are as follows:

1. If a federally recognized tribal government agency or department applies as a subapplicant under HMGP, HMGP Post Fire, BRIC or FMA, then a tribal mitigation plan is required as a condition of receiving assistance.
2. If a tribal government that meets the definition of local government (such as tribal governments that are not federally recognized) applies as subapplicant under HMGP, HMGP Post Fire, BRIC or FMA, then a tribal mitigation plan is required as a condition of receiving assistance.
3. If a federally recognized tribal government coordinates the review of its tribal mitigation plan with the recipient, it can apply as a subapplicant through that recipient (i.e., a state or another federally recognized tribe). ^[89]

A lapse in the FEMA-approved mitigation plan may result in a temporary hold on additional obligations until the mitigation plan regains FEMA approval.

A local government or tribal government applying as a subapplicant must have a mitigation plan approved to receive HMA project subawards. However, the FEMA regional administrator may grant an exception to the plan requirements in extraordinary circumstances when the appropriate justification is provided.^[90]

For HMGP, HMGP Post Fire, BRIC and FMA, extraordinary circumstances exist when FEMA or the applicant determine that the proposed project is consistent with the priorities and strategies identified in the state or tribal (standard or enhanced) mitigation plan and that the jurisdiction meets at least one of the criteria below:

• The jurisdiction meets the small impoverished community criteria.^[91]
• The jurisdiction has been determined to have had insufficient capacity because of lack of available assistance, staffing or other necessary expertise to satisfy the mitigation planning requirement prior to the current disaster or application deadline.
• The jurisdiction experienced significant disruption from a declared disaster or another event that impacts its ability to complete the mitigation planning process prior to award or final approval of a project award.
• The jurisdiction does not have a mitigation plan for reasons beyond the control of the state, federally recognized tribal government or local community, such as Disaster Relief Fund restrictions, that delay FEMA from granting a subaward prior to the expiration of the local or tribal mitigation plan.

The applicant must provide written justification that identifies the specific criteria from the above list and explains why the jurisdiction will be able to have a plan both approved by FEMA and adopted by the jurisdiction within 12 months. The justification must identify the specific actions or circumstances that have eliminated or will eliminate the deficiency that prevented the jurisdiction from previously having an approved plan. The justification must clearly demonstrate how the above circumstances impacted the community beyond just stating the above circumstances.

If FEMA grants an extraordinary circumstances exception, a local or tribal mitigation plan must be approved by FEMA within 12 months of the award of the project subaward to that community. The recipient must acknowledge in writing to the regional administrator that the jurisdiction will complete a plan within 12 months of the subaward. The recipient must provide a Compliance Action Plan for completing the local or tribal mitigation plan, including milestones and a timetable, to ensure the jurisdiction will complete the plan in the required time. This requirement must be incorporated into the award (both the planning and project subaward agreements if a planning subaward is also awarded). If a plan is not provided within this time frame, the project subaward will be terminated, and any costs incurred after notice of subaward termination will not be reimbursed by FEMA.^[92] FEMA must notify the recipient of the subaward termination. For more information on award termination, refer to Part 8.

If the mitigation plan is not approved by FEMA within 12 months of the award, and if the subaward also involved a mitigation planning award, FEMA should notify the recipient of its failure to meet the additional specific award or subaward conditions and request that the issue be corrected following remedies for non-compliance procedures in Part 8. If compliance cannot be achieved, FEMA will apply a remedy action to the planning subaward to address the non-compliance and may, as a result, withhold assistance, recoup assistance, suspend or terminate the planning subaward^.[93]

Activities submitted for consideration for HMA must be consistent with the current, FEMA-approved state or tribal (standard or enhanced) mitigation plan as well as the local or tribal mitigation plan for the jurisdiction in which the activity is located.^[94] Specifically, the activity must be consistent with the goals and objectives of the plan, and it must directly reduce the vulnerabilities identified in the risk assessment.

Often state agencies, acting as the subrecipients, administer subawards for state assets. In these instances, the state is required to have a FEMA-approved state mitigation plan, but a local or tribal mitigation plan is not required. For example, the mitigation of a state-owned transportation facility located within the jurisdiction of a local government that does not have a mitigation plan may be eligible for HMA programs. The state’s Department of Transportation (DOT) may submit a subapplication to protect the facility, provided its assets are covered in the state’s mitigation plan, even if the local jurisdiction does not have a mitigation plan.

Additionally, a local or tribal mitigation plan is not required when a state agency or private nonprofit, acting as a subapplicant, proposes an activity that meets all of the following criteria:

• The activity will be administered by the state agency or private nonprofit as a statewide initiative or program.
• The statewide initiative or program is consistent with the goals and objectives of the current FEMA-approved state or tribal (standard or enhanced) mitigation plan.
• The state agency or private nonprofit is not applying on behalf of or instead of a local government to circumvent the local or tribal mitigation plan requirement.
• The community in which the activity is located does not have any financial interest in the subaward (e.g., property ownership, long-term maintenance) or significant authority over the activity (except for permits under current building codes).

Where there is a local or tribal government planning requirement (for the subrecipient), statewide plans will not be accepted as multi-jurisdictional plans.^[95]