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Federal Register / Vol. 84, No. 55 / Thursday, March 21, 2019 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 206
[Docket ID FEMA–2014–0005]
RIN 1660–AA83
Factors Considered When Evaluating a
Governor’s Request for Individual
Assistance for a Major Disaster
Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
AGENCY:
FEMA is issuing a final rule
to revise its regulations to comply with
Section 1109 of the Sandy Recovery
Improvement Act of 2013. The Act
requires FEMA, in cooperation with
State, local, and Tribal emergency
management agencies, to review,
update, and revise through rulemaking
the Individual Assistance factors FEMA
uses to measure the severity, magnitude,
and impact of a disaster.
DATES: This final rule is effective on
June 1, 2019.
FOR FURTHER INFORMATION CONTACT:
Mark Millican, FEMA, Individual
Assistance Division, 500 C Street SW,
Washington, DC 20472–3100, (phone)
202–212–3221 or (email) FEMA–[email protected].
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
1. The Need for the Regulatory Action and
How the Action Will Meet the Need
2. Legal Authority
B. Summary of Major Provisions
II. Background and Proposed Rule
III. Discussion of Public Comments on the
Proposed Rule
A. 44 CFR 206.48, Paragraph (b)(1)—State
Fiscal Capacity and Resource
Availability
B. 44 CFR 206.48, Paragraph (b)(2)—
Uninsured Home and Personal Property
Losses
C. 44 CFR 206.48, Paragraph (b)(3)—
Disaster Impacted Population Profile
D. 44 CFR 206.48, Paragraph (b)(4)—Impact
to Community Infrastructure
E. 44 CFR 206.48, Paragraph (b)(5)—
Casualties
F. 44 CFR 206.48, Paragraph (b)(6)—
Disaster Related Unemployment
G. Principal Factors for Evaluating the
Need for the Individuals and Households
Program
H. Lack of Thresholds
I. IA Declarations Factors Guidance
J. Preliminary Damage Assessments
K. Amount of Data Requested
IV. Final Rule
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V. Regulatory Analysis
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
1. Executive Summary & A–4 Accounting
Statement
2. Need for Regulatory Action
3. Affected Population
4. Current Baseline and Impacts of Final
Rule
5. Impacts to Costs, Benefits, and Transfer
Payments
a. State Costs
b. Federal Costs
c. Benefits
d. Transfer Payments
6. Total Impact of the Final Rule
7. Marginal Analysis of the Factors
8. Regulatory Alternatives
a. Voluntary, Faith, and Community Based
Organizations Resources
b. Maintain the 44 CFR 206.48(b) Table
c. Automatically Trigger Contiguous
Counties and States
d. Considering Negative Impact on
Businesses
e. Linking Individual Assistance Cost
Factor With Public Assistance (PA) Cost
Factor
f. Use of Factor Thresholds
g. Homes in Foreclosure
h. Do Not Include Fiscal Capacity
Indicators
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. National Environmental Policy Act
E. Paperwork Reduction Act of 1995
F. Privacy Act
G. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13132, Federalism
I. Executive Order 11988, Floodplain
Management
J. Executive Order 11990, Protection of
Wetlands
K. Executive Order 12898, Environmental
Justice
L. Congressional Review of Agency
Rulemaking
I. Executive Summary
A. Purpose of the Regulatory Action
1. The Need for the Regulatory Action
and How the Action Will Meet the Need
On January 29, 2013, the Sandy
Recovery Improvement Act of 2013
(SRIA) was enacted into law (Pub. L.
113–2). Section 1109 of SRIA requires
FEMA, in cooperation with State, local,
and Tribal emergency management
agencies, to review, update, and revise
through rulemaking the factors found at
44 CFR 206.48 that FEMA uses to
determine whether to recommend
provision of Individual Assistance (IA)
during a major disaster. These factors
help FEMA measure the severity,
magnitude, and impact of a disaster, as
well as the capabilities of the affected
jurisdictions.
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FEMA is issuing this final rule to
comply with SRIA and to provide
clarity on the IA declaration factors that
FEMA currently considers in support of
its recommendation to the President on
whether a major disaster declaration
authorizing IA is warranted. The
additional clarity may reduce delays in
the declaration process by decreasing
the back and forth between States and
FEMA during the declaration process.
FEMA is also finalizing a factor on
Fiscal Capacity to provide additional
relevant information and context
regarding potential disaster situations.
2. Legal Authority
FEMA has authority for this final rule
pursuant to the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act (Stafford Act). 42 U.S.C.
5121 et seq. Section 401 of the Stafford
Act lays out the procedures for a
declaration for FEMA’s major disaster
assistance programs when a catastrophe
occurs in a State. The specific changes
in this final rule comply with Section
1109 of the Sandy Recovery
Improvement Act of 2013, Public Law
113–2.
B. Summary of Major Provisions
FEMA is revising the factors found at
44 CFR 206.48 that FEMA uses to
determine whether to recommend
provision of Individual Assistance
during a major disaster. The current
factors found at 44 CFR 206.48 for
Individual Assistance include the
following factors: (1) Concentration of
Damages, (2) Trauma, (3) Special
Populations, (4) Voluntary Agency
Assistance, (5) Insurance, and (6)
Average Amount of Individual
Assistance by State.
FEMA is revising the current factors
to provide additional clarity regarding
the considerations that FEMA has
evaluated in recent years when making
a recommendation on whether
Individual Assistance is warranted for a
major disaster declaration. This final
rule also adds new factors that will help
FEMA more accurately and consistently
determine whether the impact of an
event is beyond State and local
government capabilities. FEMA is
revising 44 CFR 206.48(b) to identify the
following factors: (1) State Fiscal
Capacity and Resource Availability, (2)
Uninsured Home and Personal Property
Losses, (3) Disaster Impacted Population
Profile, (4) Impact to Community
Infrastructure, (5) Casualties, and (6)
Disaster Related Unemployment. As is
currently the practice, FEMA will
continue to use a myriad of factors and
data to formulate its recommendations
to the President on major disaster
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Federal Register / Vol. 84, No. 55 / Thursday, March 21, 2019 / Rules and Regulations
declarations that authorize IA. No single
data point or factor will be
determinative of FEMA’s
recommendation nor will any single
factor necessarily affect the President’s
ultimate determination of whether a
major disaster declaration authorizing
IA is warranted. FEMA purposely
declined to be more restrictive in areas
of the final rule because disaster events
can vary greatly from incident to
incident, and FEMA must retain the
flexibility and discretion to properly
advise the President regarding situations
or circumstances that FEMA may not be
able to fully predict or define in a
rulemaking. Moreover, as a result of
climatological and demographic
changes, disaster trends are likely to
continue to change in ways that may
require policy shifts at the agency or
Administration level. FEMA wants to
ensure that we retain as much flexibility
as possible. The final factors do not
limit the President’s discretion
regarding major disaster declarations.
II. Background and Proposed Rule
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When a catastrophe occurs in a State,
the State’s Governor may request a
Presidential declaration of a major
disaster 1 pursuant to Section 401 of the
Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Stafford
Act). 42 U.S.C. 5170; 44 CFR 206.36(a).
Such a request must be based on a
finding that the disaster is of such
severity and magnitude that an effective
response is beyond the capabilities of
the State and the affected local
governments and that Federal assistance
is necessary. 42 U.S.C. 5170.
The capability to respond to a
catastrophe varies from State to State.
The initial decision on whether to seek
supplemental Federal assistance to help
a State respond to and recover from a
natural disaster lies with each State. The
basis for any State request for a major
disaster declaration must be a finding
that (1) the situation is of such severity
and magnitude that an effective
response is beyond the capabilities of
the State and affected local
governments, and (2) Federal assistance
under the Stafford Act is necessary to
1 A major disaster is any natural catastrophe
(including any hurricane, tornado, storm, high
water, wind driven water, tidal wave, tsunami,
earthquake, volcanic eruption, landslide, mudslide,
snowstorm, or drought), or, regardless of cause, any
fire, flood, or explosion, in any part of the United
States, which in the determination of the President
causes damage of sufficient severity and magnitude
to warrant major disaster assistance under this Act
to supplement the efforts and available resources of
States, local governments, and disaster relief
organizations in alleviating the damage, loss,
hardship, or suffering caused thereby. 42 U.S.C.
5122; 44 CFR 206.2(17).
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supplement the efforts and available
resources of the State, local
governments, disaster relief
organizations, and compensation by
insurance for disaster-related losses. 44
CFR 206.36(b)(1)–(2).
A major disaster declaration will
identify the types of assistance that are
authorized under the declaration, 44
CFR 206.40(a), although other types may
be authorized later, 44 CFR 206.40(c).
The types of assistance authorized
under the declaration are based upon
whether the damage involved and its
effects are of such severity and
magnitude as to be beyond the response
capabilities of the State, the affected
local governments, and other potential
recipients of supplemental Federal
assistance. 44 CFR 206.40(a). A major
disaster declaration may authorize all,
or only particular types of,
supplemental Federal assistance
requested by the Governor. 44 CFR
206.40(a). As noted above, when
evaluating requests for Individual
Assistance, FEMA considers the factors
under 44 CFR 206.48(b) to determine
whether supplemental Federal
Individual Assistance is warranted.
A major disaster declaration
authorizing Individual Assistance may
include any or all of the following
programs:
Individuals and Households Program:
The Individuals and Households
Program (IHP) provides grants, direct
assistance, or both to eligible disaster
survivors who have necessary expenses
and serious needs that they are unable
to meet through other means, such as
insurance. 44 CFR 206.110–120. This
help may be in the form of housing
assistance (including Temporary
Housing, Repair, Replacement, and
Semi-Permanent or Permanent Housing
Construction) as well as assistance to
meet ‘‘other needs’’ such as medical,
dental, child care, funeral, personal
property, and transportation costs.
Crisis Counseling Program: The Crisis
Counseling Program (CCP) assists
individuals and communities recovering
from the effects of a natural or human
caused disaster through the provision of
community based outreach and psychoeducational services. 44 CFR 206.171.
Supplemental Federal funding for crisis
counseling is available to the State
through two grant mechanism: (1)
Immediate Services Program, which
provides funds for up to 60 days of
services immediately following a
disaster declaration; and (2) the Regular
Services Program, which provides funds
for up to nine months following a
disaster declaration.
Disaster Case Management Program:
The Disaster Case Management Program
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(DCMP) is a program that involves a
partnership between a disaster case
manager and a survivor to develop and
carry out a Disaster Recovery Plan. 42
U.S.C. 5189d. The process involves an
assessment of the survivor’s verified
disaster caused unmet needs,
development of a goal oriented plan that
outlines the steps necessary to achieve
recovery, organization and coordination
of information on available resources
that match the disaster caused unmet
needs, monitoring of progress towards
the recovery plan goals and, when
necessary, client advocacy.
Disaster Legal Services: Disaster Legal
Services provides legal assistance to low
income individuals who, prior to or as
a result of the disaster, are unable to
secure legal services adequate to meet
their disaster related needs. 44 CFR
206.164. FEMA, through an agreement
with the Young Lawyers Division of the
American Bar Association, provides free
legal help for disaster survivors.
Disaster Unemployment Assistance:
Disaster Unemployment Assistance
(DUA) provides unemployment benefits
and re-employment services to
individuals who have become
unemployed as a result of a major
disaster and who are not eligible for
regular State unemployment insurance.
44 CFR 206.141.
On January 29, 2013, SRIA was
enacted into law. Public Law 113–2.
Section 1109 of SRIA requires FEMA, in
cooperation with State, local, and Tribal
emergency management agencies, to
review, update, and revise through
rulemaking the factors found at 44 CFR
206.48 that FEMA uses to determine
whether to recommend provision of
Individual Assistance during a major
disaster. These factors help FEMA
measure the severity, magnitude, and
impact of a disaster.
Congress directed FEMA to review,
update, and revise these factors,
including 44 CFR 206.48(b)(2) related to
trauma and the specific conditions or
losses that contribute to trauma, to
provide more objective criteria for
evaluating the need for assistance to
individuals, to clarify the threshold for
eligibility, and to speed a declaration of
a major disaster or emergency 2 under
2 The factors that FEMA considers to evaluate the
need for assistance to individuals under the
Stafford Act are at 44 CFR 206.48. FEMA uses these
factors to evaluate a governor’s request for a
declaration of a major disaster, not an emergency.
SRIA Section 1109 states that FEMA must review,
update, and revise the factors in 44 CFR 206.48(b).
The factors that FEMA uses to evaluate a governor’s
request for emergency assistance, however, are not
provided in 44 CFR 206.48(b) or in FEMA’s
regulations. Therefore, the scope of this rulemaking
will apply only to Individual Assistance factors that
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the Stafford Act. SRIA required the
completion of this rulemaking by
January 29, 2014.
On November 12, 2015, FEMA
published a notice of proposed
rulemaking pursuant to Section 1109 of
SRIA. 80 FR 70116. FEMA proposed to
revise 44 CFR 206.48(b) to include the
following factors: (1) State Fiscal
Capacity and Resource Availability, (2)
Uninsured Home and Personal Property
Losses, (3) Disaster Impacted Population
Profile, (4) Impact to Community
Infrastructure, (5) Casualties, and (6)
Disaster Related Unemployment. A
complete description of each factor can
be found in the proposed rule. See 80
FR 70116. This final rule incorporates
the reasoning of the proposed rule
except as reflected elsewhere in this
preamble. The final rule adopts
proposed rule with two changes:
removal of the sub-factors related to
State Services and Planning After Prior
Disasters. These changes are discussed
below in III. Discussion of Public
Comments on the Proposed Rule.
FEMA’s Outreach Efforts Following
Publication of the Notice of Proposed
Rulemaking
Section 1109 of SRIA requires FEMA
to cooperate with State, local, and Tribal
emergency management agencies during
the process of reviewing, updating, and
revising the factors found at 44 CFR
206.48(b). FEMA conducted outreach
prior to publication of the NPRM. See
80 FR 70119. In addition, following
publication of the NPRM, on December
8 and 9, 2015, FEMA held two webinars
for State governors’ offices, State
emergency managers, and national level
State associations to explain the
provisions of the proposed rule. At the
end of both webinars, FEMA accepted
comments from the listeners. FEMA
considered these comments in the
formulation of this final rule and
summarizes and responds to these
comments below. The webinar
presentation itself can be found in the
rulemaking docket at
www.regulations.gov.
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III. Discussion of Public Comments on
the Proposed Rule
FEMA received written comments
from 35 commenters in response to the
FEMA considers when evaluating a Governor’s
request for a major disaster declaration. Section 502
of the Stafford Act authorizes FEMA to provide IHP
assistance as part of an emergency declaration.
FEMA has previously considered some of the
factors found at 206.48(b) when considering an
emergency declaration request that includes IHP
assistance. FEMA will continue to consider some of
the factors, when applicable, at 44 CFR 206.48(b)
when evaluating an emergency declaration request
that includes IHP assistance.
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proposed rule. The majority of
commenters were from State emergency
management agencies, but commenters
also included members of Congress, an
emergency management association,
charitable organizations, and private
citizens. The commenters raised a
variety of issues that are discussed
below.
A. 44 CFR 206.48, Paragraph (b)(1)—
State Fiscal Capacity and Resource
Availability
Fiscal Capacity
The proposed Fiscal Capacity factor
defined fiscal capacity as a State’s
potential ability to raise revenue from
its own sources to respond to and
recover from a disaster. The proposed
rule identified the following data points
as sub-factors:
• Total Taxable Resources (TTR) of
the State. TTR is the U.S. Department of
Treasury’s annual estimate of the
relative fiscal capacity of a State. A low
TTR may indicate a greater need for
supplemental Federal assistance than a
high TTR.
• Gross Domestic Product (GDP) by
State. GDP by State is calculated by the
Bureau of Economic Analysis. GDP by
State may be used as an alternative or
supplemental evaluation method to
TTR.
• Per capita personal income by local
area. Per capita personal income by
local area is calculated by the Bureau of
Economic Analysis. A low per capita
personal income by local area may
indicate a greater need for supplemental
Federal assistance than a high per capita
personal income by local area.
FEMA received comments from 22
commenters regarding this proposed
factor; a summary of these comments,
and FEMA’s responses, follows.
Several commenters expressed
concern that the use of fiscal capacity
data would effectively penalize States
with relatively greater fiscal capacity.
Some comments expressed concern that
because a high TTR is frequently
correlated with a large state population
(and correspondingly high operational
expenses), the use of TTR could
adversely impact States with larger
populations. Along similar lines, one
commenter suggested that the use of
TTR with respect to California ‘‘would
make it significantly more difficult for
Californians to access individual
disaster assistance’’ than residents of
other states, because California’s TTR is
significantly higher than the TTR of
other states. The commenter suggested
that as a result of this significant
disparity between States in TTR, as well
as the diverse geography, disaster
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vulnerability, and demographics of
California, TTR ‘‘is too broad of a factor
to provide a useful assessment of [the]
statutory requirement for a state’s
capacity—let alone a local government’s
capacity—to manage a disaster.’’ 3 The
commenter encouraged FEMA to ‘‘find
a factor other than [TTR] that is better
representative of both state and local
resources available to each specific
disaster.’’
FEMA notes that assistance provided
by FEMA is intended to be
supplemental in nature and FEMA must
evaluate the fiscal capacity of the State
to determine whether the State is
overwhelmed or if the State has
sufficient resources available to provide
the needed disaster assistance without
Federal assistance. FEMA’s current
approach, which largely relies on
comparing level of damage to the
population size of the affected State,
essentially equates population with
capacity. FEMA believes that a more
direct way to evaluate a State’s fiscal
capacity is to use objective data such as
U.S. Department of Treasury’s TTR data
or the Bureau of Economic Analysis’
(BEA) GDP by State data. These are
statistical measures of a State’s
economic activity, which can provide
insight into changes in the general
economic well-being of the State and its
relative fiscal capacity. Although these
measures are frequently strongly
correlated with population size, they are
more direct measures of fiscal capacity,
and are therefore more appropriate for
this purpose.
FEMA notes that any factor could be
framed as a ‘‘penalty.’’ The appropriate
question is not whether any given factor
operates as a penalty, but how such a
factor relates to statutory requirements.
Just as a State with ample fiscal capacity
and resource availability could
characterize as a ‘‘penalty’’ FEMA’s
determination that the State is able to
use such capacity and resources to
respond effectively to a disaster, a State
that is struck by a relatively minor event
could characterize as a ‘‘penalty’’
3 Another commenter raised similar concerns
with respect to the application of TTR to disaster
declaration requests from Texas. The commenter
wrote that ‘‘In a state as large and diverse as Texas,
[TTR and GDP by State] don’t truly represent the
state’s or an affected individual’s ability to recover
from a disaster without federal assistance.’’ FEMA
agrees that TTR and GDP by State do not represent
affected individuals’ ability to recover from a
disaster without Federal assistance. Instead, FEMA
uses other information to determine individuals’
needs. What TTR and GDP by State represent is the
affected State’s capacity to assist those individuals
with recovering from a disaster. TTR and GDP by
State also provide a starting point for evaluating
when the affected State is indeed overwhelmed and
in need of supplemental Federal assistance to aid
in providing assistance to individuals.
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FEMA’s consideration of the lack of
damage. In either case, the denial would
simply flow from the President’s
determination, consistent with statutory
requirements, that the State and affected
local governments should be able to
respond to the disaster effectively
without supplemental Federal
assistance. In other words, all of the
factors in this final rule are intended to
allow FEMA and the President to make
informed decisions regarding whether
or not an event was of the severity and
magnitude to be beyond State and local
capability.
Commenters expressed concern that
TTR data may not accurately capture the
true fiscal capacity of a State because it
calculates all of the things that a State
could potentially tax, not what is
actually taxed, and therefore may
artificially inflate the perceived level of
fiscal capability. Several commenters
stated that FEMA should not consider a
State’s ability to pay based on potential
revenues alone, without considering a
State’s expenses as well because it is a
one-sided assessment of a State’s
capacity to respond and does not
necessarily fully consider a State’s
ability to provide adequate disaster
assistance. Another commenter
observed that a State that has a high
TTR because of a high population is
likely to have correspondingly high
expenses as well.
As discussed above, TTR is a valueneutral measure of a State’s economic
activity, which can provide insight into
a State’s relative fiscal capacity and
changes in its economic wellbeing,
regardless of the taxing choices and
other constraints that may be imposed
on it by State law, State constitution, or
policy choices. TTR is also indicative of
the overall economic and fiscal health of
the people and the businesses within
the State, which is relevant to the
disaster impacted population’s ability to
recover (recognizing that there are poor
communities in rich States and vice
versa, FEMA will also consider per
capita personal income at the local
level).4 FEMA believes that States with
a large TTR have a greater capability to
respond to and recover from disaster
events compared to States with a lower
TTR. FEMA does not expect or require
4 FEMA anticipates using per capita personal
income when the disaster effects are concentrated
to a specific area. An example would be a tornado
that hits a town in a rural area. FEMA would
evaluate the State’s overall TTR to gain insight into
the State’s ability to respond. FEMA also would
evaluate the locality’s per capita income to gain
insight into that specific population’s ability to
respond, i.e. is the per capita personal income for
that area sufficient to support an independent
response? How will that affect the survivors’
resiliency?
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a State to exhaust its resources before
supplemental Federal assistance would
be appropriate. FEMA welcomes States
to provide additional clarity on their
fiscal capacity, and the fiscal capacity of
local governments, by highlighting fiscal
restrictions and expenditures that,
though not captured in TTR, are
relevant to the State and local
government’s capability to respond
effectively to the disaster. In addition,
FEMA fully recognizes that some
disasters are so large and have such a
serious impact that supplemental
Federal assistance will be necessary no
matter the State’s available resources.
Several commenters expressed
concern that the fiscal capacity
indicators capture the fiscal capacity of
a State before the event without
considering that a State’s economy may
have been impacted by the disaster
event. As part of FEMA’s evaluation of
a State’s request, FEMA will evaluate
the impact of the disaster on the State.
If a State believes that the disaster has
negatively and significantly impacted its
fiscal capacity to respond or the overall
State economy, the State may discuss
such impacts in its declaration request.
Commenters expressed concern that
the two-year lag in TTR data may result
in the use of inaccurate data. Pursuant
to Public Law 102–321, the U.S.
Department of the Treasury produces
annual estimates of total taxable
resources (TTR) for all States. The TTR
estimates are published by September
30th each year and have a two-year lag.
For example, TTR for 2016 was
published on September 28, 2018. The
formula for calculating TTR uses Gross
State Product (GSP) 5 as its base,
subtracts non-taxable components, then
accounts for cross-border income flows.
This calculation provides a
‘‘comprehensive measure of all the
income flows a state can potentially
tax.’’ 6 The two-year lag in TTR data is
a direct result of when income data
becomes available. Raw income data is
always one year behind. Tax filings for
any given year are generally due by
April 15 of the following year.7 This
accounts for the first lag year. The
5 The term Gross State Product (GSP) is used
interchangeably herein with the term Gross
Domestic Product for States (GDP by State). The
U.S. Department of the Treasury uses the former,
while the U.S. Department of Commerce, Bureau of
Economic Analysis uses the latter. Published
documents relating to TTR use GSP; thus, it is also
used here.
6 ‘‘Treasury Methodology for Estimating Total
Taxable Resources (TTR),’’ revised November 2002,
page 2. https://www.treasury.gov/resource-center/
economic-policy/Documents/nmpubsum.pdf.
7 IRS Publication 509—Main Content, General
Tax Calendar, Topic: Individuals, Form 1040,
https://www.irs.gov/publications/p509/ar02.html.
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10635
second lag year is attributable to putting
the vast amount of data into a usable
format.8
FEMA reviewed a ten-year data set of
TTR for each State in response to
comments on the two-year lag.9 Based
on that review, FEMA found that TTR
is sufficiently reliable to serve as the
principal indicator for each State from
which the discussion about fiscal
capacity can begin. For the 10 years
FEMA reviewed, TTR generally
increased from year to year in every
State. The exceptions, when TTR
dropped, were generally due to
circumstances that would have been
readily apparent at the time. For
example, nearly every State saw year-toyear drops from 2007–2008 and/or
2008–2009, coinciding with the
financial crisis. While 2008 TTR data
would not have been available to
analyze for requests made during that
time, FEMA and the States would have
been well aware that capability and
fiscal capacity among all of the States
was decreasing, and FEMA would have
been able to take that decreased capacity
into consideration. In addition, events
such as significant falls in certain
commodity prices, which may impact
one or two States as opposed to the
entire nation, will also generally be
apparent and supported by other readily
available data at the time of the request.
FEMA recognizes that there is a twoyear lag and encourages each State to
provide additional information about its
fiscal capacity, especially if there have
been noteworthy economic impacts
during the two-year lag which impact
the State’s ability to respond to and
recover from the disaster.
A commenter raised concerns that
TTR is considered experimental and
thus should not be used to evaluate a
State’s fiscal capacity. The U.S.
Department of the Treasury’s website
includes three papers explaining the
methodology it uses to estimate TTR.10
8 ‘‘TTR estimates for a given year will only be
made when both GSP and SPI data are available for
that year.’’ ‘‘Treasury Methodology for Estimating
Total Taxable Resources (TTR),’’ revised November
2002, page 5. https://www.treasury.gov/resourcecenter/economic-policy/Documents/
nmpubsum.pdf.
9 The data set was comprised of the data
contained in the TTR reports published between
09/26/2006 and 09/30/2015 (10 years of data).
Although the reports are published and have titles
ranging from 2006 through 2015, the data lags two
years. For example, the report entitled ‘‘2006 Total
Taxable Resources Estimates’’ was published on 09/
26/2006 and contains TTR estimates for 2004.
10 The three papers explaining the methodology
for calculating TTR are ‘‘Summary of Current
Methodology for Estimating TTR,’’ ‘‘Working Paper
Review of Methodology for Estimating TTR,’’ and
‘‘Summary of Previous Methodology for Estimating
TTR.’’ U.S. Dep’t of the Treasury, Resource Center,
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Each of these papers refers to an
‘‘experimental’’ methodology developed
in 1986.11 This ‘‘experimental’’
methodology was refined and finalized
for use beginning in 1992.12 In 1997, the
methodology was substantially
improved and in 1998 that improved
methodology was implemented. The
methodology has remained unchanged
since 1998. Based on approximately 20
years of use, FEMA does not consider
TTR ‘‘experimental’’ and believes TTR
provides valuable insight into the fiscal
capacity of States. Congress has
recognized the utility of TTR by
requiring its use in the formula used to
allocate Federal funds for the
Department of Health and Human
Services’ Community Mental Health
Service and Substance Abuse
Prevention and Treatment block grant.13
A commenter asked that FEMA clarify
the process it will use to determine
when a State can rely on GDP data
instead of TTR. The commenter also
asked FEMA to explain more thoroughly
how per capita personal income by local
area would be analyzed with TTR and
GDP to determine a State’s Fiscal
Capacity. TTR is available for every
State and FEMA will consider the
relevant TTR for every State. If a State
wants to use either GDP by State or Per
Capita Personal Income data to
supplement or highlight a differing
fiscal health of the State then the State
can submit the information to FEMA.
However, FEMA will still consider TTR
data for that request.
Several commenters expressed
concerns about FEMA focusing too
much on the fiscal capacity of States as
compared to the fiscal capacity of local
governments. One commenter raised the
concern that taxable revenue and wealth
in many States is not evenly distributed
throughout and impoverished areas
would be hurt if the State’s request for
an IA declaration was judged by the
overall state’s fiscal capacity. FEMA
notes that the State is the one who
makes the determination to apply for a
major disaster declaration that the State
needs supplemental Federal assistance.
FEMA must evaluate at the State level
Total Taxable Resources, https://home.treasury.gov/
policy-issues/economic-policy/total-taxableresources.
11 Carnevale, John, ‘‘Experimental Estimates of
Total Taxable Resources, 1981–84,’’ in the Federal
State-Local Fiscal Relations: Technical Papers, Vol.,
2, Office of State and Local Finance, Department of
Treasury, September 1986.
12 ‘‘Summary of Current Methodology for
Estimating TTR,’’ U.S. Dep’t of the Treasury,
Resource Center, Total Taxable Resources, page 1,
paragraph 2, https://www.treasury.gov/resourcecenter/economic-policy/Documents/
nmpubsum.pdf.
13 42 U.S.C. 300x–7.
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because a request for a disaster
declaration must be based on a finding
that the disaster is of such severity and
magnitude that effective response is
beyond the capabilities of the State and
the affected local governments and that
Federal assistance is necessary.14
Several commenters asked whether
the ‘‘Fiscal Capacity’’ data will be
shared with the States and expressed
concern that they would be burdened by
having to pre-identify their own Fiscal
Capacity data. FEMA is planning on
providing links on FEMA’s website to
the data sources for States to easily
access their own fiscal capacity data if
they wish to review it prior to a major
disaster request being made. In addition,
the fiscal capacity data is easily found
using a web search. The States will
simply list their current fiscal capacity
data in their request. As discussed
above, States may also gather and
provide additional information to
supplement or provide further context
to the specified data points.
A commenter asked how local area is
defined for the ‘‘Per Capita Personal
Income by Local Area’’ sub-factor of the
‘‘Fiscal Capacity’’ factor. The per capita
personal income by local area data is
produced by the Bureau of Economic
Analysis for ‘‘counties, micropolitan
statistical areas, metropolitan statistical
areas (MSAs), metropolitan divisions
(parts of MSAs), combined statistical
areas, states, and the metropolitan and
nonmetropolitan portions of states.
Counties consist of counties and county
equivalents, such as the parishes of
Louisiana, the boroughs, municipalities
and Census areas of Alaska, the District
of Columbia, and the independent cities
of Maryland, Missouri, Nevada, and
Virginia. The estimates ofr Kalawoa
County, Hawaii and the small
independent cities of Virginia–generally
those with fewer than 100,000
residents–are combined with estimates
for adjacent counties.’’ 15
Resource Availability.
The proposed Resource Availability
factor called for FEMA to consider the
availability of resources from State,
Tribal, and local governments as well as
non-governmental organizations and the
private sector. The proposed rule
identified the following sub-factors:
• State, Tribal, and local government;
Non-Governmental Organizations
(NGO); and private sector activity. State,
Tribal, and local government, NonGovernmental Organizations, and
14 42
U.S.C. 5170.
Area Personal Income and Employment
Methodology, November 2017, ‘‘Geographic Detail,’’
page I–7. https://www.bea.gov/sites/default/files/
methodologies/lapi2016.pdf.
15 Local
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private sector resources may offset the
need for or reveal an increased need for
supplemental Federal assistance. The
State may provide information regarding
the resources that have been and will be
committed to meet the needs of disaster
survivors such as housing programs,
resources provided through financial
and in-kind donations, and the
availability of affordable (as determined
by the U.S. Department of Housing and
Urban Development’s fair market rent
standards) rental housing within a
reasonable commuting distance of the
impacted area.
• Cumulative effect of recent
disasters. The cumulative effect of
recent disasters may affect the
availability of State, Tribal, local
government, NGO, and private sector
disaster recovery resources. The State
should provide information regarding
the disaster history within the last 24month period, particularly those
occurring within the current fiscal
cycle, including both Presidential
(public and individual assistance) and
gubernatorial disaster declarations.
• State services. The State may
provide information regarding the
circumstances causing the State to lack
the resources to provide sufficient
services to its citizens.
• Planning after prior disasters. States
are encouraged to develop and
continuously improve their own
disaster assistance programs. States
should identify new and existing
individual assistance programs as well
as improvements to existing individuals
assistance programs made as a result of
previous disasters. A State’s failure to
address limitations and shortfalls
identified by FEMA or the State after
previous events will also be considered.
FEMA received comments from 25
commenters regarding this proposed
factor. The commenters stated that the
proposed factor assumed the availability
of volunteer and private sector resources
that may not exist because voluntary
and private sector resources vary from
year to year based on donor funding;
that FEMA should clarify the manner in
which it will quantify potential
resources of voluntary and faith-based
organizations and limit the degree to
which such resources will off-set
Federal assistance; that FEMA should
not limit the ‘‘Cumulative Effect of
Recent Disasters’’ sub-factor to
Presidential and gubernatorial disaster
declarations, because such a limitation
would result in States being unable to
provide information on other types of
Federal declarations that can show the
level of recent hardship such as SBA,
USDA, and Public Health Emergency
declarations; that FEMA should better
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define the ‘‘State Services’’ factor; and
that the Resource Availability factor in
general would force the States to
develop a State-funded and
administered IA program or be
penalized in a State’s request for a major
disaster declaration.
A number of commenters expressed
concern that by considering the
availability of volunteer and private
sector resources, FEMA would assume
the availability of resources that may
not in fact exist, because voluntary and
private sector resources vary from year
to year based on donor funding and a
State has no authority to direct NGOs or
private organizations to provide funding
or supplies post-disaster. In addition,
commenters stated that it is difficult for
States and communities to quickly
assemble and report information about
these resources in the immediate
aftermath of a disaster, when impacted
communities are in response mode.
Commenters also asked FEMA to clarify
how FEMA would request this data.
The current regulations at 44 CFR
206.48(b)(4) state that FEMA will
consider the extent to which voluntary
agencies and State or local programs can
meet the needs of the disaster victims
and this information is already provided
as part of the narrative aspects of a
State’s major disaster request for IA. The
only new aspect of this factor, as
compared to the current regulations, is
a reference to private sector resources.
While private sector resources were not
previously specifically listed in the
regulation, items such as significant
private donations have always been
relevant, and States have generally
provided information on such donations
when that information has been
available at the time of the request.
Assistance provided by State, Tribal,
and local government, NGOs, and the
private sector can include but is not
limited to Emergency Management
Assistance Compact (EMAC) resources,
sheltering, housing programs, feeding,
mental health services, child care, elder
care, reunification services, clean up
kits, blankets and cots, financial
assistance, and other donations. To the
extent that such resources are limited,
unavailable, or otherwise unable to meet
significant needs after a disaster, then
the State should identify these
limitations in its request, as that may
indicate additional need for Federal
assistance. FEMA understands that
information will be imperfect after a
disaster and all relevant data may not be
immediately available. As is currently
the practice, FEMA only asks that the
State submit the best information
reasonably available to it at the time of
the request.
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In addition, section 401 of the
Stafford Act, conditions that a request
for a major disaster declaration must be
based on a finding that the disaster is of
such severity and magnitude that an
effective response is beyond the
capabilities of the State and the affected
local governments and that Federal
assistance is necessary. 42 U.S.C. 5170;
44 CFR 206.36(a). In order for FEMA to
evaluate whether a disaster is beyond
the capabilities of a State and affected
local governments, FEMA must evaluate
what resources are available to the State
and affected local governments.
This factor is also in keeping with the
‘‘Whole Community’’ approach to
emergency management that reinforces
the fact that FEMA is only one part of
our nation’s emergency management
team. Under the ‘‘Whole Community’’
approach, emergency managers must
account for all available resources,
including non-governmental resources,
in preparing for, protecting against,
responding to, recovering from and
mitigating against all hazards. This
approach recognizes that a governmentcentric approach to emergency
management is not enough to meet the
challenges posed by a catastrophic
incident. When the community is
engaged in emergency management, it
becomes empowered to identify its
needs and the existing resources that
may be used to address them. The
‘‘Whole Community’’ approach is an
ongoing component of the nation’s
larger, coordinated effort to enhance
emergency planning and strengthen the
nation’s overall level of preparedness.
Commenters were concerned about
FEMA limiting the Resource
Availability factor related to past
disaster declarations to only
Presidential (both Public Assistance and
Individual Assistance) and
gubernatorial disaster declarations. The
commenters stated that not all
assistance provided by a State or its
partners requires a gubernatorial
declaration and there are other types of
Federal declarations that can show the
level of recent hardship endured by the
State, such as a Small Business
Administration Disaster declaration,
United States Department of Agriculture
disaster designation, and Department of
Health and Human Services Public
Health Emergency declaration. FEMA
believes that taking information on past
disaster activity and declarations is
valuable, because multiple disasters in a
24-month period may significantly
strain a State budget and reduce the
State’s capability to adequately respond
to and recover from a disaster without
supplemental Federal assistance; this
final rule therefore includes such a
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10637
factor. Consideration of recent disaster
activity was previously only a
consideration for a major disaster
declaration that authorized Public
Assistance. A State is always welcome
to provide additional information
beyond what FEMA is asking for in 44
CFR 206.48(b). If a State feels that recent
disaster activity, as reflected in
declarations through SBA, USDA, or
HHS, have impacted their ability to
respond to and recover from the event,
then the State should include
information on those declarations in
their major disaster request for IA.
Several commenters expressed
significant concerns with the ‘‘State
Services’’ and ‘‘Planning After Prior
Disasters’’ factors. The commenters felt
that FEMA appeared to be forcing the
States to develop a State-funded and
State-administered IA program or else
risk being penalized for the lack of such
a program. The commenters stated that
a State IA program is not required by the
Stafford Act in order to receive
supplemental Federal assistance.
Several commenters asked whether
FEMA is currently evaluating States’
limitations or shortfalls and
communicating these with States. Also,
States requested that FEMA clarify how
it will determine that a State is or isn’t
addressing limitations or shortfalls.
Overall these commenters felt that the
proposed rule did not adequately
explain how FEMA would apply these
two factors. Another commenter
supported these factors, and urged
FEMA ‘‘to also consider state effort to
guard and mitigate against avoidable
disaster damages, for example, with
programs to regulate new development
in flood hazard areas, adopt and enforce
up to date state building codes, or
incorporate resilience considerations
into the location and construction of
public infrastructure.’’ A comment
expressed concern that the proposed
rule ‘‘may unfairly penalize States that
do not have robust IA programs.’’
Based on the overwhelmingly
negative response and after further
review FEMA decided to remove the
‘‘State Services’’ and ‘‘Planning After
Prior Disasters’’ sub-factors from the
final rule. FEMA strongly believes
States are ultimately responsible for the
well-being of their citizens and that
States have a responsibility to plan for
disasters, pre-identify funding and
resources, and to provide assistance to
their citizens after a disaster. This
should include the establishment,
funding, and improvement of State-level
individual assistance programs.
However, FEMA has not been able to
develop a methodology which would
effectively and consistently evaluate the
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State Services and Planning After Prior
Disasters sub-factors to incentivize
States to establish individual assistance
programs or to plan and implement
lessons learned from previous disasters.
As a result, at this time, FEMA is unable
to effectively incentivize these activities
through the declarations process, and
specifically in the evaluation of disaster
requests. FEMA will continue to explore
opportunities to encourage States to
develop their own individual assistance
programs.
B. 44 CFR 206.48, Paragraph (b)(2)—
Uninsured Home and Personal Property
Losses
The proposed Uninsured Home and
Personal Property Losses factor
included consideration of uninsured
home and personal property losses, and
identified the following sub-factors:
• The cause of damage.
• The jurisdictions impacted and
concentration of damage.
• The number of homes impacted and
degree of damage.
• The estimated cost of assistance.
• The homeownership rate of
impacted homes.
• The percentage of affected
households with sufficient insurance
coverage appropriate to the peril.
• Other relevant preliminary damage
assessment data.
FEMA received comments from 16
commenters regarding this proposed
factor. The comments received were
related mainly to concerns regarding the
sub-factors related to the jurisdictions
impacted and concentration of damages,
the estimated cost of assistance, the
homeownership rate of impacted
homes, and the percentage of affected
households with sufficient insurance
coverage appropriate to the peril.
Several commenters were concerned
that FEMA is not taking into
consideration the effects of a disaster
with widespread minimal damage
spread across a large geographic area or
the effects of a disaster on contiguous
counties in different States. FEMA
recognizes that as a practical matter,
widespread minimal damage spread
across a larger geographic area, can
spread resources thin and overwhelm a
State’s capability to adequately respond
to a disaster. This final rule continues
to emphasize consideration of the
estimated cost of assistance for a State;
as a result, the true cumulative impact
of the widespread minimal damage
across a large geographic area within a
State will continue to be considered by
FEMA. Regarding the contiguous
counties comments, the President will
not declare a major disaster in an area
that was not requested by a Governor
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and a Governor cannot request areas
that are not within his or her State’s
jurisdiction. FEMA will not designate
areas of the State or types of assistance
beyond those that the governor
requests.16 In addition, each State and
local government has different
capabilities to respond to, recover from,
and mitigate the effects of a disaster and
a disaster that crosses State lines may
have differing impacts in the affected
States. As such, not every event that
impacts multiple States will necessarily
be beyond each affected State’s
respective capabilities. Therefore,
FEMA must continue to base its major
disaster declaration recommendation on
the capability of the affected State and
local governments to respond to the
event, in accordance with the
requirements for a major disaster
declaration in Section 401 of the
Stafford Act and 44 CFR 206.37.
Several commenters expressed
concern that neither FEMA nor the
States are able to utilize an accurate
estimated cost of assistance at this time.
One commenter stated that most metrics
used by FEMA or the States are based
on taking the number of individuals and
households impacted and the extent of
those impacts and damages, and
multiplying those totals by the
maximum assistance that is available
through FEMA’s IA programs.
Commenters stated that the IA program
has statutory limits on the amount of
relief available and that maximum IA
grant award is not indicative of the
overall potential cost to make a family
whole after a disaster and does not truly
articulate the ‘‘whole community’’
resources that are needed to bring the
community back to pre-disaster
condition.
While FEMA recognizes that there are
difficulties in accurately estimating the
cost of assistance in the aftermath of an
event, the estimated cost of assistance
has to be part of the evaluation of
whether a major disaster declaration
authorizing IA is warranted because the
cost of an event is an essential
component in determining whether or
not the disaster event is beyond the
capabilities of a State. FEMA calculates
the estimated cost of assistance at the
conclusion of the Joint PDA and the
estimated cost of the disaster is based on
the data on uninsured damage to homes
collected during the PDA. The
calculation currently includes the
following:
• Historical program costs for repair
or replacement assistance for uninsured
owner-occupied primary residences for
each of the four dwellings assessment
16 44
PO 00000
CFR 206.40(b).
Frm 00008
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levels—affected, minor, major,
destroyed.
• Cost of providing temporary
housing assistance based on the U.S.
Department of Housing and Urban
Development (HUD) fair market rent for
the area of impacted owners and renters
for each of the four dwelling assessment
levels—affected, minor, major,
destroyed—as well as for those
dwellings that are now inaccessible
because of the disaster.
• Historical program costs for ONA
awards.17
When developing the estimated cost
of assistance, because IHP repair and
replacement assistance can only be
awarded to homeowners, FEMA uses
the homeownership rate to estimate the
number of homeowners in the disaster
affected area. Additionally, since IHP is
only able to provide awards to
uninsured individuals, FEMA also
considers the number of insured versus
the number of uninsured individuals
when developing the estimated cost of
IHP for the disaster.
In this final rule, FEMA is not
prescribing the methods to be used to
estimate cost of assistance. FEMA
believes attempting to do so would be
overly restrictive in a manner that
would prevent FEMA from using new
technology, such as geographic
information systems (GIS), or otherwise
updating the process, such as by
updating the joint FEMA-State
preliminary damage assessment
instrument. FEMA is always working to
improve the PDA process and methods
of cost estimation. The estimated cost of
assistance is necessarily limited by the
maximum amount of IA grant award
because the monetary amount of
assistance that can be provided to
individuals and households is limited
by Section 408(h) of the Stafford Act.18
42 U.S.C. 5174. FEMA recognizes that
because of the statutory cap on the
maximum IA assistance, in many
situations FEMA assistance will not
bring the survivor back to their predisaster position. States are always
welcome to provide additional estimates
of the total impact of the disaster on
individuals and households,
17 Damage Assessment Operations Manual: A
Guide to Assessing Damage and Impact, Page 59,
Issued April 5, 2016 https://www.fema.gov/medialibrary-data/1459972926996-a31eb90a2741e86
699ef34ce2069663a/PDAManualFinal6.pdf.
18 For disasters occurring in Fiscal Year 2019, the
maximum amount of financial assistance provided
to an individual or household under section 408 of
the Stafford Act (IHP) with respect to any single
emergency or major disaster is $34,900. See 83 FR
53281, Oct. 22, 2018. This amount is adjusted
annually based on the Consumer Price Index for All
Urban Consumers as calculated by the Department
of Labor, Bureau of Labor Statistics.
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irrespective of the statutory caps, but in
general, the estimated cost of assistance
measure is useful to FEMA both for
purposes of internal planning and for
purposes of obtaining a preliminary
(though sometimes incomplete) picture
of total disaster impacts. To assist
States, FEMA will share estimated cost
of assistance data with the State
throughout the PDA process, including
final amounts.
One commenter expressed concern
that U.S. Census data on the
homeownership rate of impacted homes
does not take into account that a renter
may be occupying the owner-occupied
home at the time of the disaster. In
addition, some commenters stated that
the homeownership rate is not readily
available during preliminary damage
assessments and the amount of time
required to make a reliable estimate
would cause delays in States’
submitting their major disaster
declaration requests. FEMA notes that
this data point is used during the
current process and estimates are
available via Census.19 Estimates of
homeownership rates are important
because the level of needed assistance
varies between rentals and owneroccupied residences. Renters typically
do not require repair assistance because
repairs are generally the responsibility
of the landlord and the property must be
owner occupied to be eligible to receive
IHP assistance for repair or replacement.
In addition, as part of the PDA process,
FEMA, along with State and local
partners, canvasses the disasterimpacted areas to validate the Census
data on renters. As with all data points,
States should submit, and FEMA will
base its recommendation on, the best
information available at the time.
A commenter suggested adding a data
point that compares the known
homeowner insurance population with
the actual population of a particular
county or parish. The commenter stated
that many rural residents who sustain
damages from a disaster may not have
homeowners insurance if they do not
have a mortgage. FEMA notes that we
do not prescribe the specific method of
how to calculate the insurance
penetration rate in this final rule but we
will use the best method available. At
this time, PDA teams may consider any
relevant factors in estimating the
insurance rate for the affected
19 The Census Housing Vacancies and
Homeownership website provides current
information on homeownership rates and are
available for the U.S., regions, states, and for the 75
largest Metropolitan Statistical Areas (MSAs). Data
for all geographies are available both quarterly and
annually. https://www.census.gov/housing/hvs/
index.html.
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households, which may include, among
other considerations, whether the
affected area was rural, suburban, or
urban.
A commenter suggested comparing
the average amount of homeowner
insurance deductible in a given county
or parish against the income for such
county or parish, because often
insurance deductibles are too high for
residents to pay out of pocket after a
disaster. In addition, a homeowner who
cannot afford to pay the deductible will
be unable to fully recover after the
disaster. FEMA notes that the issue of
high insurance deductibles has arisen in
the past, often in earthquake events.
FEMA considers a homeowner with a
high deductible to be underinsured.
States may provide information on
deductible rates for the peril in the
affected area and FEMA will utilize that
information when evaluating the
sufficiency of the insurance coverage in
place and determining the number of
underinsured homeowners who may
require Federal assistance. FEMA did
not make any changes based on this
comment.
A commenter stated that FEMA seems
to believe that every Insurance
Commissioner’s Office keeps a record of
every single policy issued in the State,
along with limits, exclusions, and types
of coverage. The commenter stated that
they have never heard of a State
Insurance Commissioner’s Office that
has access to such a database. FEMA
fully recognizes that the availability and
quality of insurance data varies widely
from State to State. Some State
Insurance Commissioner’s Office have
information that can be utilized to
provide or contribute to estimates of
insurance coverage. For certain States,
the best option may be the State
Insurance Commissioner’s Office, but
for other States it may be a different
source. FEMA notes that it is important
to develop an insurance coverage
estimate because, under Section 320 of
the Stafford Act (42 U.S.C. 5155), FEMA
is statutorily prohibited from
duplicating insurance coverage. If the
vast majority of damage will be covered
by insurance, a Presidential declaration
may be unnecessary. As stated
previously, States should make their
requests based on the best information
available to them at the time. In the final
rule, FEMA has not prescribed a specific
source for this data, because currently
available sources have variable
coverage, and more complete sources
may become available in the future.
One commenter recommended adding
a data point to capture the number of
uninsured or underinsured losses from
individuals who were required to carry
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10639
flood insurance as a result from
previously accepting disaster assistance.
FEMA does access this information
during a disaster by looking at National
Flood Insurance Program data. FEMA
already considers this information when
looking at the insurance component and
we view it as a consideration that exists
implicitly within the insurance coverage
data point of the final rule.
A commenter raised concerns that the
amount of time it would take to
determine damages, insurance, and
specific insurance riders regarding
whether specific disaster damages are
covered would make the 30 day window
to request a major disaster declaration
for IA unattainable. FEMA does not
expect the States to provide an
unreasonable level of detail or
specificity for the insurance data point.
FEMA expects a State to provide the
best estimate of data within the time
frame available. A State should make
their major disaster declaration request
in the timeframe appropriate to the size
and impact of the event and should not
delay in order to gather additional
information, even if such information
would be more precise or useful.
A commenter stated that although
they are encouraged that FEMA plans to
pursue better data to inform its
insurance penetration rate
determinations, they raised concerns
that FEMA previously promised to
identify alternative insurance data
sources in the past but has made little
progress. FEMA continues to work to
find the best information regarding
insurance coverage and is committed to
finding the most thorough and accurate
sources for insurance data. However, at
this point, such thorough and accurate
sources either do not currently exist or
are not currently available to FEMA. As
such, FEMA cannot prescribe the
method or source for obtaining
insurance data in this final rule because
we anticipate that there will be better
methods in the future. FEMA has not
made any changes based on this
comment.
C. 44 CFR 206.48, Paragraph (b)(3)—
Disaster Impacted Population Profile
The proposed Disaster Impacted
Population Profile factor related to the
demographics of impacted
communities, and identified the
following data points as sub-factors:
• The percentage of the population
for whom poverty status is determined.
• The percentage of the population
already receiving government assistance
such as Supplemental Security Income
and Supplemental Nutrition Assistance
Program benefits.
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• The pre-disaster unemployment
rate.
• The percentage of the population
that is 65 years old and older.
• The percentage of the population 18
years old and younger.
• The percentage of the population
with a disability.
• The percentage of the population
who speak a language other than
English and speak English less than
‘‘very well.’’
• Any unique considerations
regarding American Indian and Alaskan
Native Tribal populations raised in the
State’s request for a major disaster
declaration that may not be reflected in
the data points referenced in paragraphs
(b)(3)(i)–(vii) of this section.
FEMA received comments from 8
commenters regarding this factor. The
commenters stated that consideration
should be given to non-citizen
populations that are affected by a
disaster; that although special
populations were already a factor of
consideration, the expansion of this into
8 data points would be burdensome on
States during response activities; that
the proposed disaster impacted
population data points would provide a
better overall understanding of the
community impacted and the resources
needed; and that the proposed disaster
impacted population profile data points
are to be commended because the factor
would better highlight the severity of
impact to the community.
Two commenters stated that in the
Commonwealth of the Northern Mariana
Islands, they face extenuating and
unique situations because they have a
relatively large population of aliens as
compared to U.S. citizens and nationals.
The commenters asked that FEMA
consider allowing direct financial
support for that specific population.
FEMA is statutorily prohibited from
providing certain types of Federal
assistance to aliens who are not
qualified aliens.20 Specifically,
recipients of IHP and DUA must certify
that they are U.S. citizens, non-citizen
nationals of the United States, or
qualified aliens. That prohibition is
statutory and it cannot be altered
through this final rule.
A commenter raised concerns that the
proposed rule did not include any
requests for information on indigent
populations. FEMA notes that the
proposed rule included a number of
such requests, including specific subfactors seeking information on the
20 The Personal Responsibility and Work
Opportunity Reconciliation Act Of 1996, Title IV,
Public Law 104–193, 110 Stat. 2105 (Aug. 22, 1996).
See 8 U.S.C., Chapter 14—Restricting Welfare and
Public Benefits for Aliens, 8 U.S.C. 1611–1646.
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percentage of the population for whom
poverty status is determined and the
percentage of the population already
receiving government assistance such as
Supplemental Security Income and
Supplemental Nutrition Assistance
Program benefits. If a State believes,
based on the circumstances of a disaster
event, that there is additional
population-related information that
needs to be considered, the State should
include such information in its request
for a major disaster declaration
authorizing IA.
A commenter stated that, although
special populations were already a
factor of consideration, the expansion of
this into 8 data points would be
burdensome on States during response
activities. FEMA notes that the State is
not required to provide any of these data
points. If the State wishes to provide
such data points, they are publicly
available.21 States commonly provide
21 Poverty data comes from the U.S. Census Small
Area Estimate Branch, ‘‘Poverty and Median Income
Estimates for Counties.’’ Supplemental Nutrition
Assistance Program data is from the U.S. Census’s
American Community Survey (ACS) using the
American FactFinder (https://factfinder.census.gov/
faces/nav/jsf/pages/index.xhtml), Advanced
Search, Geographies: ‘‘All Counties within the
United States,’’ Topics: S2201, 5-year estimates.
Supplemental Security Income data comes from
ACS using the American FactFinder, Advanced
Search, Geographies: ‘‘All Counties within the
United States,’’ Topics: B19056, 5-year estimates.
The unemployment data at the State and county
level are available at https://www.bls.gov/lau/. Data
on county populations of ‘‘65 or Older’’ and ‘‘18 or
Younger’’ data comes from the ACS using the
American FactFinder (https://factfinder.census.gov/
faces/nav/jsf/pages/index.xhtml), Advanced
Search, Geographies: ‘‘All Counties within the
United States,’’ Topics: DP05, 5-year estimates. Data
on populations with a disability comes from the
ACS, American FactFinder (https://
factfinder.census.gov/faces/nav/jsf/pages/
index.xhtml), Advanced Search, Geographies: ‘‘All
Counties within the United States,’’ Topics: S1810,
3-year estimates. Data on ‘‘percent of population
who speaks English less than very well’’ comes
from the ACS, American FactFinder (https://
factfinder.census.gov/faces/nav/jsf/pages/
index.xhtml), Advanced Search, Geographies: ‘‘All
Counties in the United States,’’ Topics: B06007, 5year estimates. Data on American Indian and Alaska
Native populations comes from the ACS, American
FactFinder (https://factfinder.census.gov/faces/nav/
jsf/pages/index.xhtml), Advanced Search,
Geographies: ‘‘All Counties within the United
States,’’ Topics: DP05, 5-year estimates. FEMA may
update these sources to account for future
improvement and changes in the U.S. Census, BLS,
BEA, and Treasury data reporting, and the sources
are provided here for example.
For definitions related to demographic data
points, please refer to the associated organizations
websites. For example, refer to U.S. Census Small
Area Income and Poverty Estimates definitions at
https://www.census.gov/topics/income-poverty/
poverty/about/glossary.html for percentage of the
population for whom poverty status is determined.
For a definition of the pre-disaster unemployment
rate, refer to Bureau of Labor Statics at http://
www.bls.gov/bls/glossary.htm and search for the
term ‘‘unemployment rate’’. The U.S. Census
glossary at http://www.census.gov/glossary and
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these data points to FEMA as part of a
declaration request; FEMA is merely
clarifying a common source for these
data points going forward. The disaster
impacted population profile data points
can be found by the State prior to a
disaster even occurring and will only
need to be pulled once a year.
Two commenters noted that the
proposed rule changes added several
very beneficial factors, including the
additional components to the Disaster
Impacted Populations profile, the
Impact to Community Infrastructure,
and the separate consideration for
Disaster Related Unemployment. The
commenters stated that these proposed
factors would better highlight the
severity of a disaster’s impact to the
community and would provide a better
overall understanding of the community
impacted and the resources needed. The
commenters also stated that the
proposed factors would facilitate a more
nuanced understanding and approach to
the unique recovery needs of
communities in the aftermath of a
disaster.
D. 44 CFR 206.48, Paragraph (b)(4)—
Impact to Community Infrastructure
The proposed Impact to Community
Infrastructure factor related to certain
impacts to a community’s infrastructure
that may adversely affect a population’s
ability to safely and securely reside
within the community. The proposed
rule identified the following sub-factors:
• Lifesaving and life-sustaining
services. The effects of a disaster may
cause disruptions to or increase the
demand for lifesaving and lifesustaining services, necessitate a more
robust response, and may delay a
community’s ability to recover from a
disaster. The State may provide
information regarding the impact on life
saving and life sustaining services for a
period of greater than 72 hours. Such
services include but are not limited to
police, fire/EMS, hospital/medical,
sewage, and water treatment services.
• Essential community services. The
effects of a disaster may cause
disruptions to or increase the demand
for essential community services and
delay a community’s ability to recover
from a disaster. The State may provide
information regarding the impact on
essential community services for a
period greater than 72 hours. Such
services include but are not limited to
schools, social services programs and
providers, child care, and eldercare.
American Community Survey also provide
definitions related to demographic data points
including the following terms: Assistance and
Subsidies, Age, Disability, Language Spoken at
Home, and Ability to Speak English.
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• Transportation infrastructure and
utilities. Transportation infrastructure
or utility disruptions may render
housing uninhabitable or inaccessible.
Such conditions may also affect the
delivery of life sustaining commodities,
provision of emergency services, ability
to shelter in place, and efforts to
rebuild. The State may provide
information regarding the impact on
transportation infrastructure and
utilities for a period of greater than 72
hours.
FEMA received comments from 9
commenters regarding this proposed
factor. The commenters asked for more
information regarding how FEMA
expects States to provide this
information; suggested that the
additional requested data would be
burdensome to collect; and requested
that FEMA elaborate on the scope of the
‘‘Impact to Community Infrastructure’’
factor to include the effects of a cyberevent or other evolving threat.
The information included in the
‘‘Impact to Community Infrastructure’’
factor is already typically provided,
where relevant, in States’ major disaster
declaration requests for IA. States
typically identify any critical
infrastructure disruptions in their major
disaster declaration requests for IA
because it illustrates the impact of the
disaster on the community as whole.
FEMA recognizes that communication
may be difficult after a disaster, and
FEMA expects that State and local
officials will provide the best
information they have. None of this
information is required, if the State does
not wish to provide it. The information
for major disaster declaration requests
for IA is often based on initial
assessments that allow both the State
and FEMA to evaluate the situation.
FEMA currently encourages States to do
the IA PDA before the PA PDA, and
encourages States to submit their
requests even if they are still awaiting
the completion of the PA PDA.
A commenter raised concerns that the
proposed ‘‘Impact to Community
Infrastructure’’ factor could potentially
lead to a disaster declaration that
traditionally would be a PA-only major
disaster declaration to now be an IA
major disaster declaration as well. In
addition, a commenter expressed
concern about how the States would
collect and deliver this information
because many disaster events only
receive a joint FEMA-State PDA for
either PA or IA. As noted in the
proposed rule, the ‘‘Impact to
Community Infrastructure’’ factor is
intended to help FEMA evaluate the
disaster impacts on infrastructure and
how it may affect the individuals in that
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community. PA PDA teams conduct
assessments to estimate the costs to
repair and replace infrastructure, but a
major disaster declaration request for IA
would not require that level of detail.
For IA, FEMA is not evaluating how
much it will cost to fix a bridge that was
washed out during a flood; however,
FEMA believes it is important to know
how many people are impacted because
that bridge is now unavailable. A bridge
that is washed out could severely
impact an individual’s ability to remain
in their home or to travel to and from
work, which would necessitate IA.
A commenter raised that FEMA
should expand the scope of the ‘‘Impact
to Community Infrastructure’’ factor to
ensure that application of the Stafford
Act evolves at the pace of real-world
threats, to include the effects of evolving
threats, such as cyber-attacks. FEMA
encourages planning and preparing for
potential cyber-attacks. FEMA believes
that the final rule is flexible enough to
allow FEMA to evaluate whether IA
programs would be appropriate and
necessary following a cyber-event that
affected individuals and households. It
is important to note that some FEMA
programs may not be well suited to
address damage caused by cyber events
and other evolving threats, and not all
such events or threats will result in
eligibility for a Stafford Act declaration.
E. 44 CFR 206.48, Paragraph (b)(5)—
Casualties
The proposed Casualties factor related
to the number of individuals who are
missing, injured, or deceased due to a
disaster. FEMA received comments from
4 commenters regarding this proposed
factor. The commenters noted that the
change for this factor was an increase in
specificity in the regulation because the
proposed factor included a request for
information on missing individuals in
addition to injured and deceased
individuals. In addition, commenters
felt that a lack of casualties should not
be used by FEMA to deny a major
disaster declaration request for IA.
FEMA has made no changes to the
‘‘Casualties’’ factor in the final rule from
what was proposed in the proposed
rule. Data on the number of missing,
injured, and deceased are currently
provided by the State to FEMA and
FEMA is clarifying in regulation the
continued need for these data points.
Casualties, or a lack thereof, will never
be the only factor considered in a major
disaster declaration authorizing IA
determination. However, there may be
events with borderline levels of damage
to residences, but with a high number
of casualties that point to a level of
trauma warranting Federal assistance.
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F. 44 CFR 206.48, Paragraph (b)(6)
—Disaster Related Unemployment
The proposed Disaster Related
Unemployment factor called for
consideration of the number of disaster
survivors who lost work or became
unemployed due to a disaster and who
do not qualify for standard
unemployment insurance. The proposed
factor welcomed States to provide an
estimate of the number of such
unemployed disaster survivors as well
as information regarding major
employers affected.
FEMA received comments from 8
commenters regarding this proposed
factor. Some commenters applauded the
proposal to continue to collect this
information. Others expressed concerns
that a State may not be able to gather the
requested unemployment data within
the 30 day declaration request period.
Some commenters stated that a State
typically uses potential disaster
unemployment claims for a USDA
agriculture related disaster request but
adding this information to a major
disaster request for IA may be worth the
time and resources when many
businesses are impacted. Others stated
that FEMA should not use potential low
level of unemployment claims due to a
major disaster as a negative factor
against a State in determining whether
a declaration is warranted.
FEMA understands that there are
certain disaster situations where
gathering certain types of information
may be difficult. This information may
not be necessary or relevant for the
typical major disaster declaration
request that is seeking IA. Generally,
when a disaster event warrants IA,
Disaster Unemployment Assistance is
appropriate as well. This information is
already provided by States when they
request Disaster Unemployment
Assistance as part of their major disaster
declaration request. If needed, States
may submit extension requests. This
factor will primarily be relevant in
instances where the effect of the disaster
event is mainly economic and Disaster
Unemployment Assistance is the only
program that a State requests. FEMA
will not use a low level of
unemployment claims due to a major
disaster as a negative factor in
determining whether a request for other
forms of disaster assistance is
warranted. However, a low level of
unemployment claims due to a major
disaster may be indicative that Disaster
Related Unemployment is unnecessary
even though other IA programs are
necessary to assist a community recover
post-disaster event.
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G. Principal Factors for Evaluating the
Need for the Individuals and
Households Program
FEMA proposed that the principal
factors it will consider in evaluation of
any major disaster declaration request
for IHP will be the fiscal capacity of the
requesting State (44 CFR 206.48(b)(1)(i))
and the uninsured home and personal
property losses (44 CFR 206.48(b)(2)).
FEMA found that the ratio of IA Cost to
Capacity (ICC), which is the estimated
cost of IA divided by a State’s TTR in
millions, was particularly indicative of
the likelihood of a declaration. FEMA
received comments from 4 commenters
regarding this proposal. The
commenters expressed general
opposition to FEMA using the ICC
calculation as an evaluation tool for
whether IHP is warranted and suggested
that the ICC calculation is a
mathematical formula or ‘‘threshold’’
that is prohibited by the Stafford Act.
A commenter stated that the ICC
calculation proposed by FEMA for
determining whether IHP is warranted
is a mathematical formula that is
specifically prohibited by the Stafford
Act. The commenter stated that the
formulaic evaluation of a major disaster
request does not meet the spirit and
intent of the Stafford Act. Section 320
of the Stafford Act prohibits the denial
of assistance to a geographic area based
solely on the use of an arithmetic
formula or a sliding scale based on
income or population. 42 U.S.C. 5163.
The ICC ratio compares the estimated of
cost of assistance and the State’s TTR.
Although the ICC ratio is an arithmetic
formula based in part on income flows,
FEMA does not plan to deny assistance
to any geographic area based solely on
the results of this formula. Rather, the
results are only one factor (albeit an
important one) that FEMA will
consider, in the totality of the
circumstances, when making its
recommendation to the President. The
comparison of the principal factors will
be considered in conjunction with the
other factors that are provided in the
final rule. FEMA has revised the
regulatory text at 44 CFR 206.48(b) to
make clear that FEMA will always
consider all relevant information
submitted as part of a declaration
request.
FEMA believes that it is appropriate
to use ICC as a measure of the need for
IHP because at its core, the
determination of whether to recommend
a major disaster declaration authorizing
IHP depends on the impact of the event
being beyond a State or local
government’s capability. Such a
determination necessarily entails an
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assessment of the impact of the event in
the context of a State’s fiscal capacity
and resources. FEMA recognizes that
every disaster is different and
circumstances vary among States.
Ultimately, however, the ICC compares
two factors that are undeniably relevant
to FEMA’s recommendation to the
President. These factors will not be used
to the exclusion of all others; FEMA will
continue to evaluate each request on its
own merits, including by reference to
the other factors identified in this rule.
A commenter opined that although
FEMA states that the ICC is not a hard
threshold, the practical result is that of
a threshold. FEMA does not agree that
the ICC will act as a threshold. The ICC
statistics provided in the NPRM were
based on historical declaration requests
and they show levels of ICC for events
that were approved at a high frequency,
denied at a high frequency, and for
events that fell in the middle. FEMA
believes the ICC evaluation provides a
more systematic way to look at the
information and creates a more useful
decision framework to evaluate a major
disaster declaration request for IA than
the current evaluation process. FEMA
provided this historical data to help
guide States for planning in future
disaster situations, and FEMA will
continue to update this data based on
major disaster declaration request
determinations in the future. FEMA is
not planning to use the ICC calculation
as a hard ‘‘threshold.’’
H. Lack of Thresholds
FEMA received comments that
expressed disappointment at a lack of
clear thresholds or other guidance
regarding what amount of damage
would definitively warrant a major
disaster declaration authorizing IA.
FEMA will not be using a threshold
because it would unnecessarily limit
FEMA’s ability to advise the President
and would not allow FEMA to fully
consider all factors that may be relevant
for the unique circumstances of a
disaster and its impact on the State.
FEMA understands that some States
prefer additional clarity for planning
purposes, i.e., to help States decide
whether they should or should not
submit a major disaster declaration
request for a given disaster event. While
FEMA will not be establishing a
threshold, FEMA issued an additional
proposed guidance document for
comment on September 22, 2016 at 81
FR 65369 that further fleshed out the
details of how FEMA will evaluate the
factors. Following consideration of the
comments received, FEMA is issuing
the final guidance today; a notice of
availability regarding that guidance
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document is published elsewhere in
today’s Federal Register along with this
final rule. In addition, FEMA will
periodically publish aggregate PDA data
on FEMA’s website which States can
use to evaluate the likelihood of
receiving a major disaster declaration
for a specific event and to plan for
future events.
I. IA Declarations Factors Guidance
Several commenters raised concerns
regarding the IA Declarations Factors
Guidance which FEMA indicated would
support the proposed rule. The
commenters asked for information on
when the guidance would be published,
wanted clarity on how the factors will
be weighted, and suggested that FEMA
should develop appropriate guidance
materials to train State and local
partners, FEMA regional office staff, and
the disaster workforce. FEMA published
an additional proposed guidance
document for comment on September
22, 2016 that further fleshed out the
details of how FEMA would evaluate
the factors. 81 FR 65369. The majority
of comments received on the proposed
guidance document were duplicative of
what was already received on the
proposed rule. The comments that were
unique and specific to the guidance are
addressed in the final IA Declarations
Factors Guidance, notice of which is
published elsewhere in today’s Federal
Register along with this final rule.
Commenters asked for clarity on how
the factors would be evaluated by
FEMA. As stated above, FEMA intends
to provide additional clarity regarding
evaluation of the factors through
guidance documents. These guidance
documents will aid States and
Territories in drafting requests for
emergency and major disaster
declarations including Individual
Assistance. These documents will also
provide additional clarity regarding the
circumstances, in particular the severity
and magnitude relative to State
capacity, under which a major disaster
declaration authorizing IA is likely to be
approved or denied. This additional
clarity should allow for improved
planning by the States because they will
have a better understanding of what
type and size of event may exceed their
capacity to support residents without
Stafford Act assistance.
A commenter stated that FEMA
should develop appropriate guidance
materials to train State and local
partners, FEMA regional office staff, and
the disaster workforce. FEMA has
hosted and will continue to host
internal and external trainings and
webinars for the FEMA Regional
Offices, States, Territories, and local
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partners to help them become familiar
with and understand the new IA major
disaster declaration factors.
J. Preliminary Damage Assessments
Several commenters raised concerns
regarding the preliminary damage
assessment process. The concerns raised
include that nongovernmental
organizations (NGOs) should be invited
to participate in sharing information
during the PDA process and initial
response and recovery; that FEMA
should simplify the PDA process for IA
and coordinate with the Red Cross and
Small Business Administration (SBA);
that the timeframe for making a major
disaster declaration for IA is unclear;
and that a PDA conducted too early in
certain events, such as a flooding
disaster, will not result in accurate
PDAs.
A commenter raised a concern that
non-governmental organizations need to
be invited to participate in sharing
information during the PDA process and
initial response and recovery. FEMA
notes that non-governmental
organizations are often involved in the
disaster response in a community and
provide information to the States. A
State may coordinate with their local
non-governmental organizations and to
involve them in the PDA process, at the
State’s discretion.
Two commenters suggested that
FEMA, SBA and the American Red
Cross should develop a single
standardized PDA that would collect
one set of data that all three entities can
use. In general, FEMA believes that a
wholesale revision of the PDA process
is outside the scope of this rulemaking.
Aside from revising a limited number of
data points, this final rule does not
affect the PDA process at all. In
addition, FEMA and SBA currently do
coordinate and complete PDA together
when feasible.
A commenter requested clarity about
the deadline by which a State must
request a major disaster declaration
authorizing IA. States must submit their
major disaster request (or request an
extension) within 30 days of the
incident. 44 CFR 206.36(a). FEMA
encourages States to identify the
potential need for a joint FEMA-State
PDA as quickly as possible if the State
believes that a major disaster
declaration is necessary. FEMA
encourages States to collect and submit
information as quickly as possible
because it is important to provide
assistance to disaster survivors as soon
as possible after a disaster event.
A commenter stated that FEMA must
recognize that a PDA performed too
early, particularly after a flood event,
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will not provide an accurate measure of
the number of homes damaged. FEMA
notes that a State is the entity that
triggers the joint FEMA-State PDA, and
that a State may request an extension of
the 30 day deadline if additional time is
needed to provide accurate results. For
any major disaster declaration request
including IA, FEMA will work with the
State to complete the PDAs and process
the declaration request as quickly as
possible. FEMA will make a major
disaster declaration recommendation to
the President based on the best
information available and we recognize
that early after an event not all of the
information is available or completely
certain. FEMA also recognizes that the
magnitude of some events may require
the State and FEMA to move ahead
based only on limited or uncertain
information.
K. Amount of Data Requested
Several commenters raised concerns
that the proposed rule would create a
significant increase in the amount of
data required for a State’s request for a
major disaster declaration authorizing
IA. The commenters shared that,
although it is appreciated that States are
being forewarned of these requirements
in advance, they felt that many of the
new data points would require
significant effort to assemble which may
impact expediency in submitting a
major disaster request which is in direct
contradiction to section 1109 of SRIA’s
requirement to ‘‘speed a declaration of
a major disaster.’’ In addition, others
raised concern that under the proposed
rule, FEMA would require the States to
compile a significant amount of
information, regardless of whether such
information had any bearing on whether
a declaration will be declared.
FEMA notes that most of the data
points identified in the proposed rule
are already provided by States as part of
the current disaster declaration process
because they are items that FEMA
informally identified as relevant data
points in the past. By clearly identifying
these data points up front, the final rule
will reduce the potential that FEMA
will need to reach back to the State for
additional information. In this way,
FEMA believes that the rule will help
speed the process. In addition, FEMA is
not compelling the States to provide all
of the data points included in this
rulemaking. A State should submit
enough information that they believe
justifies the need for supplemental
Federal assistance. However, it is in the
State’s interest to discuss the data points
highlighted in this rule along with any
other relevant information because it
will illustrate to FEMA and the
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President why supplemental Federal
disaster assistance is necessary for their
State.
IV. Final Rule
FEMA is finalizing the proposed rule
with the two changes that are discussed
in section III of this preamble. First,
FEMA is removing the proposed ‘‘State
Services’’ sub-factor. Second, FEMA is
removing the proposed ‘‘Planning After
Prior Disasters’’ sub-factor. FEMA has
also revised introductory text at 44 CFR
206.48(b) to make clear that regardless
of the ratio of estimated cost of
assistance to TTR for any given event,
FEMA will always consider all relevant
information submitted as part of a
declaration request.
V. Regulatory Analysis
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
1. Executive Summary & A–4
Accounting Statement
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 designated this rule a
‘‘significant regulatory action’’ although
not economically significant, under
section 3(f) of Executive Order 12866.
Accordingly, the rule has been reviewed
by OMB. This rule is exempt from the
requirements of Executive Order 13771
because it has de minimis costs spread
across all states and territories. See
OMB’s Memorandum ‘‘Guidance
Implementing Executive Order 13771,
Titled ‘Reducing Regulation and
Controlling Regulatory Costs’’’ (April 5,
2017).
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FEMA estimates the final rule will
impose a cost burden of $28,040 in the
first year of implementation and $2,939
for each subsequent year. FEMA
estimates the ten-year present value
total cost to be $44,102 discounted at
seven percent and $49,441 discounted
at three percent. FEMA estimates the
annualized cost of the final rule to be
$6,279 at seven percent and $5,796 at
three percent.22 The costs are for
training (FEMA providing and States
participating in), States becoming
familiar with the regulation, both FEMA
and States downloading and saving
annual data, and States changing their
existing files to account for the new
factor. Benefits of the rule include
clarifying FEMA’s existing practices and
reducing process time and effort (back
and forth) between FEMA and States
requesting a declaration.
FEMA does not expect the rule to
affect the amount of assistance to
individuals and households for two
primary reasons. First, codifying factors
that are currently captured under the
‘‘other relevant information’’ prong of
44 CFR 206.48 provides clarity without
necessarily changing current practice.
Since 1999,23 FEMA has evaluated and
improved its IA declarations practices
continuously so that FEMA can
incorporate consideration of new
information sources as they have
become available. This rule reflects the
evolution of those efforts by codifying
currently used factors, as well as adding
one new factor to evaluate the fiscal
capacity of States’ abilities to respond to
and recover from a declared disaster.
Second, the new fiscal capacity factor is
highly correlated to previously captured
data on State population 24 and is
expected to result in comparable
declaration recommendations. FEMA
believes including the new fiscal
capacity factor provides a more
comprehensive picture of a State’s
ability to respond to and recover from
a declared disaster.
TABLE 1—A–4 ACCOUNTING TABLE
Estimates
Category
Primary
estimate
Benefits:
Annualized Monetized ................................................
Qualitative ...................................................................
High
estimate
n/a
n/a
n/a
n/a
Discount
rate
(%)
Year
dollar
n/a
n/a
n/a
n/a
n/a
n/a
n/a
n/a
Period
covered
7
3
7
3
n/a.
n/a.
n/a.
n/a.
The final rule more clearly identifies declaration factors FEMA considers when making its recommendation to the President on a major disaster declaration that authorizes IA than current regulations. The rule codifies factors FEMA currently considers, but are not specified in 44 CFR 206.48(b) and adds one new factor that will
provide additional information on fiscal capacity. FEMA anticipates that this final
rule will result in regulatory efficiencies due to reduced back and forth between
FEMA and the State that is requesting the declaration. Currently, the amount of
back and forth between FEMA and the State is not tracked.
Costs:
Annualized Monetized ................................................
$6,279
$5,796
n/a
n/a
Annualized Quantified .................................................
Qualitative ...................................................................
Low
estimate
n/a
n/a
n/a
n/a
Annualized Quantified .................................................
Units
n/a
n/a
n/a
n/a
n/a
n/a
n/a
n/a
2015
2015
....................
....................
7
3
7
3
10
10
10
10
years.
years.
years.
years.
n/a
n/a
n/a
n/a
n/a
n/a
7
3
n/a.
n/a.
To:
n/a.
n/a
n/a
7
3
To:
n/a.
None.
Transfers:
Federal Annualized Monetized ...................................
n/a
n/a
From/To ......................................................................
From:
Other Annualized Monetized ......................................
n/a
n/a
From/To ......................................................................
From:
n/a
n/a
n/a
n/a
n/a
n/a
n/a.
n/a.
amozie on DSK9F9SC42PROD with RULES2
Effects:
22 FEMA includes estimates of discounted present
value costs and annualized costs according to
guidance from OMB Circular A–4. Office of
Management and Budget, Published September 17,
2003. Available at: https://www.whitehouse.gov/
sites/whitehouse.gov/files/omb/circulars/A4/a4.pdf.
23 On September 1, 1999, 44 CFR 206.48 was
finalized in regulation. See 64 FR 47698.
24 The correlation is based on the new fiscal
capacity sub-factors. The primary sub-factor that
will be used is Total Taxable Resources (TTR),
which measures the unduplicated sum of the
income flows produced within a State and income
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flows received by its residents that a State can
potentially tax. See United States Department of the
Treasury, ‘‘Treasury Methodology for Estimating
Total Taxable Resources (TTR),’’ Revised November
2002, page 2, https://www.treasury.gov/resourcecenter/economic-policy/Documents/
nmpubsum.pdf. Accessed and downloaded
November 9, 2015. Because TTR is available at the
State level only, Gross Domestic Product (GDP) by
State will be used as the fiscal capacity indicator
for territories and other areas when TTR is not
available. In general, GDP by State is estimated
using two procedures. The first one uses State-level
Census Bureau value-added data for goods-
PO 00000
Frm 00014
Fmt 4701
Sfmt 4700
producing industries to estimate GDP by State for
those industries. The second procedure uses Census
Bureau receipts and payroll data, or company
financial data to estimate gross operating surplus
for the services-producing industries. Both
procedures use income received by a State’s
residents as a primary component. See United
States Department of Commerce, Bureau of
Economic Analysis, ‘‘GDP by State Estimation
Methodology,’’ page 2, https://www.bea.gov/sites/
default/files/methodologies/0417_GDP_by_State_
Methodology.pdf. Accessed and downloaded
February 15, 2017.
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10645
TABLE 1—A–4 ACCOUNTING TABLE—Continued
Estimates
Category
Primary
estimate
State, Local, and/or Indian Tribal Governments ........
Low
estimate
Units
High
estimate
Year
dollar
Discount
rate
(%)
Period
covered
State governments are the only entities directly affected by this rule. Benefits include
expected regulatory efficiencies due to reduced back and forth between FEMA and
the State requesting the major disaster declaration that includes IA.
Increased costs resulting from the rule are from training, becoming familiar with the
new rule, downloading the fiscal capacity factor data, and changing existing templates and files to account for the new factor. These costs are expected to occur in
year 1. Costs in subsequent years from updating the data are expected to be
small.
Small Business ...........................................................
Wages .........................................................................
Growth ........................................................................
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2. Need for Regulatory Action
This final rule provides clarity on the
declaration factors that FEMA currently
considers in support of its
recommendation to the President on
whether a major disaster declaration
authorizing IA is warranted. FEMA
expects the additional clarity will
reduce delays in the declaration process
by decreasing back and forth between
States and FEMA. FEMA also is adding
one new factor—Fiscal Capacity—to
provide additional context on States’
capacity to respond to and recover from
disaster situations. Finally, the rule will
satisfy the requirements outlined in
Section 1109 of SRIA.
3. Affected Population
A request for a Federal major disaster
declaration authorizing IA must come
from a State’s Governor or designated
equivalent. 44 CFR 206.36(a). Therefore,
the rule directly affects all States that
are eligible to request a Federal major
disaster declaration authorizing IA.
States are defined in 44 CFR
206.2(a)(22) and include any State of the
United States, the District of Columbia,
Puerto Rico, the Virgin Islands, Guam,
American Samoa, and the
Commonwealth of the Northern Mariana
Islands.25
Although Section 1110 of SRIA
amended the Stafford Act to allow
federally recognized Indian Tribal
governments to submit requests for
emergency or major disaster
declarations, SRIA charged FEMA to
implement that authority separately by
rulemaking. Declarations requested by
Tribal governments will be covered by
25 There are 56 States, as defined by 44 CFR 44
CFR 206.2(a)(22). Throughout this analysis,
‘‘States’’ means the total number of governmental
jurisdictions that include the 50 U.S. States, District
of Columbia, and the 5 territories listed.
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No Impact.
Not Measured.
Not Measured.
a separate process and are not included
in this rule. For this reason, Tribal
governments are not directly affected by
this rule. Local governments also are not
directly affected by the rule because the
disaster-related information local
governments provide to the State is part
of their current disaster response
process, which is to provide situational
awareness and ascertain the need for
further emergency assistance.26
4. Current Baseline and Impacts of Final
Rule
The rule largely codifies many
considerations that FEMA has used for
several years under the ‘‘other relevant
information’’ prong of 44 CFR 206.48,
but were not specifically identified in
FEMA regulations. FEMA conducted a
retrospective review of State major
disaster declaration letters that
requested IA and found that States
typically included more information
and data than what is specifically
identified in the current regulations and
listed at 44 CFR 206.48(b).27
26 The National Response Framework defines the
roles and responsibilities of key partners at the
local, tribal, State, and Federal levels. Local
governments/jurisdictions are responsible for
ensuring the public safety and welfare of their
residents. Local police, fire, emergency medical
services, public health and medical providers,
emergency management, public works,
environmental response professionals, and other in
the community are often the first to detect a threat
or hazard, or respond to an incident. As first
responders, local governments provide situational
awareness on the incident and request immediate
emergency relief to ensure public safety and
welfare, i.e. debris removal and/or emergency
protective measures. See National Response
Framework, Third Edition, pages 11–12, https://
www.fema.gov/media-library-data/14660146829829bcf8245ba4c60c120aa915abe74e15d/National_
Response_Framework3rd.pdf. Accessed and
downloaded February 15, 2017.
27 FEMA reviewed all 85 State major disaster
declaration request letters submitted between
January 1, 2012 and December 31, 2016, and found
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Frm 00015
Fmt 4701
Sfmt 4700
FEMA’s review examined the 85
major disaster declaration requests for
IA that States submitted between
January 1, 2012 and December 31, 2016.
All were examined, whether the
declaration was granted or denied.
FEMA found that the four new Fiscal
Capacity sub-factors had not been
provided previously by States; however,
when States provided qualitative
information on the State’s economic
health, they may also have provided
median household income. FEMA
found that out of the remaining 23 subfactors, 19 were provided in at least 80
percent of the requests and only 4 were
provided in less than 20 percent of the
request letters. All 4 are sub-factors of
the Disaster Impacted Population Profile
factor. Specifically, the percentage of
population already receiving
government assistance such as
Supplemental Security Income and
Supplemental Nutrition Program
benefits appeared in only 5 percent of
the requests (4 occurrences in 85 total
requests); the percentage of the
population who speak a language other
than English and speak English less
than ‘‘very well’ in only 7 percent of the
requests (6 occurrences in 85 total
requests); the percentage of population
18 years old and younger in only 18
percent (15 occurrences in 85 total
that each letter was unique and provided many of
the data points and information that will be
explicitly included under the regulation. The
information submitted varied depending on the
disaster, the scope of damages, and the need for
assistance. FEMA does not require every data point
to be submitted when a State makes a declaration
request. FEMA found that some requests had more
data and/or information, while other requests had
less. For instance, in more severe events in less
resilient areas, the States did not need to provide
a large amount of information to be recommended
for a declaration. In these instances, the individual
assistance needs were clearly outside the capacity
of the requesting State.
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requests); and any unique
considerations regarding American
Indian and Alaskan Native Tribal
populations that may not be reflected in
the U.S. Census Bureau data in only 18
percent of the requests (15 occurrences
in 85 requests). FEMA found that these
specific sub-factors of population were
specifically included by States when
they believed the disaster adversely
affected and heighted the vulnerability
of these particular segments of the
population. This is consistent with
FEMA’s long-standing practice of
considering how any given disaster
affects populations that are 65 years and
greater or have a disability. The detailed
findings are presented in Table 5, and
in the marginal analysis table posted in
the docket at www.regulations.gov.
These findings established the baseline
from which the costs of this rule were
estimated.
Because FEMA and States already are
gathering and providing much of this
information, FEMA anticipates minimal
impact to States. FEMA does not expect
or require States to include every factor
in every declaration request. FEMA
expects that States will continue to
provide a comparable level of
information in their request letters,
based on their respective circumstances
and disaster effects.
Indian Tribal governments (requesting
assistance through the State) and local
governments currently provide the State
with specified factor information for
their local area and affected residents.
Therefore, FEMA anticipates Indian
Tribal governments (requesting
assistance through the State) and local
governments will not directly incur
additional costs from the rule.
As previously discussed, the new
factor FEMA is adding is Fiscal
Capacity. Both FEMA and States will be
affected by the addition of this factor.
For FEMA, the increase in burden will
result from annually collecting the
information and providing it to the
States. This increase in burden is
expected to begin in year 1 and remain
the same for each subsequent year.
FEMA also will incur a cost for
providing IA declaration factors
training. For States, an increase in
burden will be realized in the first year
when States download the fiscal
capacity data, adjust their templates and
files to accommodate the new Fiscal
Capacity factor, and attend IA
declaration factor training. In each
subsequent year, the burden for States is
expected to decrease from year 1
because it will be for downloading and
storing the fiscal capacity data only.
FEMA will provide a link on its website
to the data in addition to downloading
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and storing the information for its own
reference. FEMA assumes that States
will download and store the data in
subsequent years prior to any major
disaster so that the information is
readily available if they need to request
IA. In addition, once a State has
downloaded and stored this data for one
disaster, the State is likely to keep the
data on hand for future reference and to
meet administrative records retention
policies.
FEMA does not expect the new Fiscal
Capacity factor to affect the number of
IA declaration requests made by States
or change the amount of IA assistance
provided. The new factor is highly
correlated to data previously used; thus,
would have likely resulted in
comparable declaration
recommendations had it been used. For
this reason, the final rule is expected to
result in comparable recommendations
in the future and the rule is not
expected to affect transfer payments.
Fiscal Capacity. FEMA recognizes
that each State’s capacity to respond
and recover varies based on the
circumstances of the disaster and the
State’s resources. FEMA includes fiscal
capacity data to better evaluate a State’s
ability to adequately respond to a
disaster with or without supplemental
Federal assistance. The GAO suggested
in multiple reports that FEMA should
incorporate States’ fiscal capacity into
its considerations when recommending
disaster declarations to the President.
All of the GAO reports focused on
including fiscal capacity in FEMA’s PA
declaration factor criteria. FEMA
believes there also is a need to assess a
State’s capacity to respond and recover
on its own when determining whether
a major disaster declaration that
authorizes IA is warranted.
To evaluate a State’s fiscal capacity
for response to a major disaster, FEMA
will review data on a State’s TTR.28 The
U.S. Department of Treasury (Treasury)
calculates the TTR of each State, which
is used as a measure of a State’s fiscal
capacity.29 TTR is based on Gross
28 Pursuant to Public Law 102–321, the U.S.
Department of the Treasury produces annual
estimates of total taxable resources (TTR) for all
States. The TTR estimates are published by
September 30th each year and have a two-year lag.
For example, TTR for 2016 was published on
September 28, 2018. The formula for calculating
TTR uses gross state product as its base, subtracts
non-taxable components, then accounts for crossborder income flows. This calculation provides a
‘‘. . . comprehensive measure of all the income
flows a state can potentially tax.’’
29 GAO Report 12–838 stated that other Federal
departments and agencies have used TTR data to
determine a jurisdiction’s fiscal capacity and the
extent to which a jurisdiction should be eligible for
Federal assistance; specifically the Department of
Health and Human Services’ Substance Abuse and
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Frm 00016
Fmt 4701
Sfmt 4700
Domestic Product (GDP) by State,
measuring the unduplicated sum of the
income flows produced within a State,
but makes adjustments for additional,
potentially taxable income flows earned
by residents from out-of-state sources
such as capital gains and commuter
income.30 FEMA acknowledges that
TTR does not capture a State’s actual tax
revenue or expenditures and cannot be
viewed as a financial accounting of a
State’s budget. The GAO supports the
use of TTR as a measure of a State’s
fiscal capacity because it provides a
more comprehensive measure of a
State’s fiscal capacity when compared to
other options, which do not include the
additional, potentially taxable income
flows earned by residents from out-ofstate sources such as capital gains and
commuter income.31
Further, FEMA is removing the
‘‘Average Amount of Assistance per
Disaster’’ table that is found at the
current 44 CFR 206.48(b)(6) which was
based on outdated (1990 Census Data)
population numbers and simplistic size
categories that grouped States into only
three categories: Small, medium, and
large. Removing this table and instead
using TTR will allow a State and FEMA
to include a State-specific assessment of
that State’s fiscal capability when
responding to a major disaster.
FEMA conducted a retrospective
analysis of its recommendations and
major disaster declarations by the
President and confirmed they are
correlated to the fiscal capacity of the
requesting State, as represented by State
TTR data. Historically, FEMA captured
an aspect of fiscal capacity when
evaluating the damage caused by each
disaster in relation to the population of
the affected State. States with the
highest State TTRs tended to have the
highest population. Based on this
analysis, FEMA found that major
disaster declarations authorizing IA
have a correlation to the fiscal capacity
Mental Health Services Administration’s block
grant program and Community Mental Health
Service use TTR. Federal Disaster Assistance,
Improved Criteria Needed to Assess a Jurisdiction’s
Capability to Respond and Recover on Its Own,
GAO–12–838, September 2012, pages 31–32. http://
www.gao.gov/products/GAO-12-838. Accessed and
downloaded November 9, 2015.
30 United States Department of the Treasury,
‘‘Treasury Methodology for Estimating Total
Taxable Resources (TTR),’’ Revised November 2002,
page 2, https://www.treasury.gov/resource-center/
economic-policy/Documents/nmpubsum.pdf.
Accessed and downloaded November 9, 2015.
31 United States Government Accountability
Office, FEDERAL DISASTER ASSISTANCE:
Improved Criteria Needed to Assess a Jurisdiction’s
Capability to Respond and Recover on Its Own,
GAO–12–838, September 2012, page 31. http://
www.gao.gov/products/GAO-12-838. Accessed and
downloaded November 9, 2015.
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of the requesting State, as represented
by the State TTR data.
FEMA reviewed 220 major disaster
declaration requests that included IA
and were submitted between January
2008 and December 2016.32 The
purpose of the review was to determine
if there would have been any impact on
a disaster determination from using
State TTR to assess a State’s need for a
major disaster declaration authorizing
IA. Each State request included an
estimate of the costs from the damages
attributed to the disaster event. FEMA
retrieved the TTR data that was
available for that State at the time of the
request. For each request, FEMA used
estimated IA costs and the State’s TTR
to calculate a ratio of IA Cost to (fiscal)
Capacity (ICC). For example, assume a
State estimated $2,000,000 in IA costs
and the State’s TTR was
$30,000,000,000. FEMA then divided
$30,000,000,000 by $1,000,000 to get the
State’s TTR in millions, which is
$30,000. ($30,000,000,000 ÷ $1,000,000
= $30,000) FEMA divided the estimated
cost of IA, which was $2,000,000, by
$30,000 to get the ICC ratio 66.7.
($2,000,000 ÷ $30,000 = 66.66)
Based on the ICC calculation for all
220 State requests, FEMA’s analysis
shows the greater the ICC ratio for a
major disaster declaration request that
10647
included IA, especially those with ICCs
above 25, the more likely the request for
IA was granted. Conversely, the lower
the ICC ratio for a major disaster
declaration request that included IA,
especially those with ICCs below 10, the
more likely the request for IA was
denied. The following table displays the
total number of major disaster
declaration requests and the total of the
IA requests that were granted by ICC
ratio size. The table also shows the
percentage of granted major disaster
declaration requests within each
respective ICC group.
TABLE 2—NUMBER OF IA REQUESTS AND GRANTED IA REQUESTS BY ICC RATIO
Number of
requests
received
(2008–2016)
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ICC ratio
(estimated cost of IHP/(TTR/$1 million))
Number of
requests
approved
(2008–2016)
Percentage
of requests
approved
(2008–2016)
>25 ...............................................................................................................................................
10–25 ...........................................................................................................................................
<10 ...............................................................................................................................................
65
71
84
55
32
8
85
45
10
Total ......................................................................................................................................
220
95
43
Based on the above data, there were
71 major disaster declaration requests
that included IA with ICC ratios
between 10 and 25; and 32 of these
requests were declared major disasters
that included IA. Hence, 45 percent of
major disaster declaration requests with
ICC ratios between 10 and 25 that
included IA were granted. FEMA
believes this approval rate helps
illustrate that a number of factors are
taken into consideration when
determining FEMA’s recommendation,
especially in borderline events.
In addition, FEMA’s above analysis
shows that the higher the estimated cost
of IA damages and the lower the State
TTR, the more likely a major disaster
declaration request authorizing IA was
granted in the past. In the past, States
generally provided qualitative
discussions on the effects of previous
disasters, State median household
income data, and population data as
indicators of their economic health. In
response to recommendations in GAO
Report 12–838, FEMA examined the
effect of using TTR, rather than median
household income and population data
as indicators of a State’s economic
ability to support itself in the event of
a major disaster and whether using TTR
would have changed FEMA’s past
recommendations.33 FEMA is including
TTR to introduce a more direct measure
of State fiscal capacity than the
qualitative information already being
provided by the States.34 FEMA will
continue to consider, when provided,
information from States on the effects of
previous disasters and State median
household income and population data.
FEMA found that TTR and population
are highly correlated (0.984). Although
these measures are highly correlated,
FEMA chose State TTR as its preferred
data point as a more direct measure of
fiscal capacity for several reasons. TTR
more accurately reflects a State’s ability
to respond to a disaster because TTR is
a measure of fiscal capacity which takes
into consideration the population of the
State and the income flows, not just an
estimate of the number of people in the
State. In addition, TTR includes much
of the business income that does not
become part of the income flow to
jurisdiction residents, undistributed
corporate profits, and rents and interest
payments made by businesses to out-ofjurisdiction real estate owners and
lenders. FEMA concludes that its
consideration of State TTR would not
have affected past recommendations
based on the above analysis that shows
that TTR and population are highlight
correlated.35 Accordingly, FEMA
anticipates that using State TTR when
making future major disaster declaration
recommendations will not reduce the
number of IA declaration requests made
by States or change the amount of IA
assistance provided.
FEMA recognizes that some disasters
cause enough damage to overwhelm
even the most fiscally capable States
and that disasters may result in special
circumstances. For example, a special
32 For the analysis on TTR, FEMA excluded
disaster declaration requests that did not include a
request for IA. FEMA also excluded duplicate
requests, U.S. territories’ requests (because there is
no TTR data available), requests without summaries
of the PDA data or with insufficient data, and
requests that involved an expedited decision.
However, expedited disaster declarations that
included PDA data and a request for IA were
included. For example, the disaster declaration
request from New York for Hurricane Irene (2008,
DR 4020) was included in the data set even though
the declaration was expedited because the request
included an estimate for PDA. See ‘‘New York—
Hurricane Irene, FEMA–4020–DR,’’ Summary of
Damage Assessment Information Used in
Determining Whether to Declare a Major Disaster,
Accessed and downloaded April 11, 2017. https://
www.fema.gov/pdf/news/pda/4020.pdf. FEMA will
use data related to personal income and GDP for
territories. The estimated cost to States and to
FEMA for downloading and providing fiscal
capacity data are included in the analysis. See
section, ‘‘5. Impacts to Costs, Benefits, and
Transfers.’’
33 Although GAO Report 12–838 largely related to
the Public Assistance disaster declaration process,
FEMA decided to evaluate whether TTR could also
improve the IA major disaster declaration process.
34 FEMA recognizes that TTR does not perfectly
capture a State’s fiscal capacity and encourages
States to provide any information they believe
support their IA declaration request.
35 FEMA also reviewed using per capita TTR and
found per capita TTR and population are not highly
correlated (0.099) and that as a result, the use of per
capita TTR may have affected past
recommendations.
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circumstance would be if a State has
experienced several major disasters in a
very short time or if a particular disaster
included widespread and extensive
damage. Another special circumstance
would be if the disaster affected a small
geographic area. If a disaster request is
for a small area, FEMA will review per
capita personal income by local area
data to ascertain a local government’s
fiscal capacity. FEMA previously
evaluated data on median household
income per county. FEMA expects that
the shift from median household
income per county to per capita
personal income by local area will have
minimal impact and no new costs
because one is replacing the other.
FEMA’s intent in this final rule is to
continue to take multiple factors into
consideration, including the fiscal
capacity factor whether it be State TTR,
GDP by State, or per capita personal
income. The addition of the fiscal
capacity factor will provide Statespecific information that will assist
FEMA in determining whether the State
is, in fact, overwhelmed and in need of
supplemental Federal assistance.
FEMA will continue to use multiple
factors and relevant data to formulate its
recommendations to the President on
major disaster declarations that
authorize IA.36 No single data point or
factor will singularly affect FEMA’s
recommendation or the President’s
ultimate determination of whether to
issue a major disaster declaration
authorizing IA.
5. Impacts to Costs, Benefits, and
Transfer Payments
In the following section, FEMA will
discuss the rule’s quantified costs,
qualitative benefits, and why there are
no expected effects to transfer
payments.
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a. State Costs
FEMA received multiple comments
questioning whether the full costs to
States had been captured in the NPRM.
In general, commenters questioned
whether the additional burden resulting
from the new Fiscal Capacity Factor was
accurate; pointed out that the cost of
State personnel attending training was
omitted; and voiced concern that the
36 An in-depth discussion of the factors and
relevant data considered is presented herein. See
‘‘III. Discussion of Public Comments on Proposed
Rule.’’ With the exception of TTR, the proposed
factors have been taken into consideration by FEMA
in the past when making past recommendations for
major disaster declarations including IA. The
factors were covered, but not specified, previously
under the ‘‘other relevant information’’ prong of 44
CFR 206.48. FEMA continues to emphasize that no
single factor would be used to determine if a
recommendation is warranted.
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final rule would slow the declaration
process because key decision makers
might not be familiar with the final rule.
FEMA considered each of the comments
and adjusted its estimated costs
accordingly by incorporating new
training costs, familiarization costs,
updated data retrieval costs, and new
costs associated with States
incorporating the new Fiscal Capacity
data into existing files and processes.
FEMA also more descriptively
presented the baseline data on which its
cost estimates are based.37 A more
detailed summary of these comments,
and FEMA’s responses, follows.
Additional Burden from Fiscal
Capacity Factor. Four commenters
questioned whether the estimate of the
additional burden resulting from the
new Fiscal Capacity Factor was
accurate. Specifically, three States
(Indiana, Florida, New York) and one
emergency management association
(NEMA) pointed out that incorporating
new data points into the IA declaration
request will increase staff time.
FEMA concurs with these comments
and adjusted its cost estimates
associated with States downloading the
new Fiscal Capacity factor data and
incorporating the data into existing files
and processes. FEMA did not include an
additional burden for reviewing the data
because review and analysis of this data
occurs when the declaration request is
being formulated by the State. The costs
of reviewing any data included in the
request is already embedded in the
process. As shown by FEMA’s baseline
analysis, many of the factors and subfactors listed in the rule have previously
been submitted or requested subsequent
to a State request for a major disaster
declaration that includes IA, and
codifying them will not increase costs.
FEMA does not expect or require States
to include every factor in every disaster
declaration request. FEMA anticipates
that States will continue to provide a
comparable level of information in their
request letters, based upon their
respective circumstances and disaster
effects. However, fiscal capacity in the
form of TTR (States), GDP by State
(Territories), or Per Capita Personal
Income (PCPI) (small areas) typically
has not been provided by States or
considered by FEMA and it will impose
a new cost. Data related to fiscal
capacity is available from publicly
accessible databases and websites. For
this reason, States can access and
download the data without incurring
any costs for the data itself.
37 Baseline data estimates were presented
qualitatively in the NPRM, but have been included
quantitatively in the Final Rule.
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However, FEMA recognizes that there
will be an additional burden to States
resulting from downloading the relevant
Fiscal Capacity data annually and
adjusting their templates and files in
year 1. The estimated cost for all States
is $8,935 in year 1 and $1,787 in each
subsequent year. FEMA has included
these costs in the final rule as a result
of public comments received on the
NPRM.
FEMA estimates that in year 1 each
State will spend approximately four
hours on downloading the new fiscal
capacity data and adjusting files and
templates to incorporate the new Fiscal
Capacity factor.38 To estimate the
additional activity time, FEMA
performed a ‘‘dry run’’ retrieval and
storage of the fiscal capacity data for 13
randomly chosen States.39 FEMA
estimates it will take 10 to 15 minutes
to retrieve and store Treasury’s TTR
data (including all State data in a single
retrieval). The average of this range, 12.5
minutes, is used in this analysis. FEMA
estimated it would take the equivalent
amount of time for the BEA’s GDP by
State data, and uses 12.5 minutes for
that retrieval and storage. FEMA
estimated it would take 15 to 30
minutes to retrieve BEA’s per capita
personal income data and used the
average of 22.5 minutes for that retrieval
and storage. FEMA summed these three
time burdens to calculate a total burden
of 47.5 minutes (12.5 + 12.5 + 22.5 =
47.5). The total burden of 47.5 minutes
was divided by 60 minutes, for an
estimated increased burden of
approximately 0.8 hours ((12.5 + 12.5 +
22.5) ÷ 60 = 0.7917).
FEMA’s ‘‘dry run’’ example analysis
took approximately 3.2 hours and
included formatting the tables into a
useable format for analysis (1.6 hours)
and creating tables and graphs (1.6
hours). FEMA estimates it will take a
similar amount of time for States to
update their current templates to
incorporate the new fiscal capacity data.
Based on this experience, FEMA
estimates that downloading the data and
adjusting files and templates will take
each State approximately 4.0 hours in
year 1 (0.8 hours + 1.6 hours + 1.6 hours
= 4.0 hours). The total time for all 56
38 FEMA will provide links to the relevant data
on its website, www.FEMA.gov. In addition, to
maintain records and support FEMA’s work, the
data likely will be stored by FEMA’s IA Program.
FEMA assumes that States will use the links to the
data sources provided by FEMA.
39 The times listed for data retrieval represent the
time it took FEMA to pull the information directly
from the Treasury and BEA sources. FEMA will
provide links to the data sources on its website,
www.FEMA.gov to facilitate access to the data
sources for States.
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States 40 is 224 hours (4.0 hours × 56
States = 224 hours).
FEMA anticipates a State Government
First-Line Supervisor of Office and
Administrative Support Workers (1st
Line Supervisor), or equivalent, will
download the data and adjust the
templates and files. The fully-loaded
wage rate for the 1st Line Supervisor is
$39.89 41 per hour.42 To estimate the
total costs for States, FEMA multiplied
the fully-loaded hourly rate for a 1st
Line Supervisor by the total hours for all
States resulting in total costs to
download the data and update
templates and files in year 1 of $8,935
($39.89 per hour × 224 hours =
$8,935.36). In subsequent years, only
downloading and data entry into files
and templates is expected. As stated
previously, FEMA estimates this will
take 0.8 hours. Using the same
methodology, FEMA multiplied 0.8
hours by 56 States and then multiplied
by the fully-loaded hourly rate of $39.89
for a total of $1,787 per year beginning
in year 2 (0.8 hour × 56 States × $39.89
per hour = $1,787.07).
Training Costs. FEMA received two
comments that noted there would be
time and expense involved for States in
training employees. FEMA has added a
cost for States to attend FEMA-provided
training on the final rule.43 Training
attendance is voluntary, but FEMA has
estimated costs based on the assumption
that all States will attend training.
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40 There
are 56 States, as defined by 44 CFR 44
CFR 206.2(a)(22). Throughout this analysis,
‘‘States’’ includes the 50 U.S. States, District of
Columbia, and the 5 territories listed (Puerto Rico,
the Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands).
41 Bureau of Labor Statistics, Employer Costs for
Employee Compensation, 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, June 2016.’’ Calculated by dividing total
compensation for all workers of $34.05 by wages
and salaries for all workers of $23.35 per hour
(yields a benefits multiplier of approximately 1.46
× wages). https://www.bls.gov/web/ecec/
ececqrtn.pdf. Accessed and downloaded, October
12, 2016.
42 Base hourly wage rate of $27.32 multiplied by
a 1.46 benefits factor. ($27.32 × 1.46 = $39.89). U.S.
Department of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics, May 2016, All
Data (XLS), National Industry-Specific
Occupational Employment and Wage Estimates,
NAICS code 999200, State Government excluding
schools and hospitals, and Standard Occupational
Classification (SOC) code 43–1011 for First-Line
Supervisors of Office and Administrative Support
Workers. https://www.bls.gov/oes/tables.htm.
Accessed and downloaded, October 12, 2016.
43 FEMA provided two outreach webinars for the
NPRM and plans to have four training webinars for
the final rule. The total training costs included
herein represent the aggregate training costs for the
NPRM and the final rule. States’ costs are for
attending the FEMA-provided training; FEMA costs
are for developing and presenting the training.
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Given that the intent of the rule is to
provide clarity, FEMA will offer training
for all States on the changes included in
the rule. FEMA included the costs
associated with States attending training
on the rule in year 1. Outreach webinars
were offered by FEMA following the
publication of the NPRM. To estimate
the cost of the training to States and
capture the costs associated with the
outreach webinars, FEMA used the
participation data from the NPRM
outreach webinars. They were presented
via webinar, lasted one hour, and
generally were attended by two 44
individuals per State, no matter the size
of the State or if the State was prone to
experience disasters.
FEMA calculated the cost of the
training to the States by adding the
fully-loaded hourly wage rate for both
State staff and multiplying by the
number of States. The estimated total
cost of States attending the training is
$13,340.45
Familiarization Costs. Three
comments were received that noted
States, local emergency management
divisions, or impacted jurisdictions
would have to become familiar with the
final rule. In response, FEMA added
familiarization costs for States, but not
for local emergency management
divisions or jurisdictions. FEMA chose
not to include new costs for locals
because the final rule applies to States,
which is the level from which a major
disaster declaration request is made.
Further, FEMA assumes States regularly
update their emergency response
networks and local emergency
management divisions on changes in the
field. FEMA believes that States will
continue to disseminate the new
information through each State’s
respective process.
To estimate the time for States to
understand changes made to the
regulations, FEMA included time for
State employees to familiarize
themselves with the regulations. FEMA
estimates States will spend 0.5 hours to
familiarize themselves and understand
the new factor data requirements.46
44 FEMA anticipates that one of the positions
would be a State Government Chief Executive, or
equivalent, and the other would be a State
Government 1st Line Supervisor, or equivalent.
45 The calculation uses a base of 56 States, which
includes the 50 U.S. States, the District of
Columbia, and 5 territories. The result is multiplied
by 2, once for outreach webinars that have already
been completed and once for the final rule training.
{[2 webinars x ($79.22 + $38.89) × 1 hour × 56
States = $6,670.16]}=$13,340.32
46 To estimate the time for States to familiarize
themselves and understand the new factor data
requirements, FEMA surveyed its own employees
who formerly worked for State governments.
Thirteen employees were identified who worked for
various States, representing multiple regions, State
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10649
FEMA assumes a State Government
Chief Executive, a senior level
government official, or equivalent,
familiar with State emergency assistance
programs, will read the existing and
new regulations to understand the
changes. The fully-loaded wage rate for
a State Government Chief Executive is
$79.22 47 per hour.48 The hourly rate of
$79.22 is multiplied by 0.5 hour and 56
States to calculate a State cost in year 1
of $2,218 to familiarize themselves with
the new rule ($79.22 × 0.5 × 56 =
$2,218.16). FEMA also assumes that
each State will review the supplemental
guidance materials at least once in year
1 and once each subsequent year. The
estimated cost for each subsequent year
uses the same method as above, but
reduces the time needed from 0.5 hours
to 0.25 hours, for the Chief Executive to
refresh his or her understanding. The
resulting cost for each subsequent year
is estimated at $1,109. ($79.22 × 0.25 ×
56 = $1,109.08)
Potential Delay in Submitting the
Declaration Request. Seven commenters
were concerned that this final rule
requires so much additional information
and will result in increased workload
while a disaster is unfolding that future
major disaster requests would be
delayed. FEMA contends that this final
rule will not delay the major disaster
request process, based on its review of
the 85 major disaster declaration
sizes, and a range in years of service in State
government and FEMA. These employees were
asked to read the proposed and existing regulations
and answer questions to test their understanding of
the changes. The employees also were provided a
copy of excerpts of this regulatory preamble if they
needed further information to answer the test.
Approximately 40 percent of the employees referred
back to the preamble to answer the questions. It
took an average of 17 minutes to read the existing
and proposed regulatory text and 11 minutes to
answer the questions, including referring back to
the preamble. FEMA rounded 28 minutes (11
minutes +17 minutes) to 30 minutes and used 0.5
hours to calculate the costs.
47 Bureau of Labor Statistics, Employer Costs for
Employee Compensation, 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, June 2016.’’ Calculated by dividing total
compensation for all workers of $34.05 by wages
and salaries for all workers of $23.35 per hour
(yields a benefits multiplier of approximately 1.46
× wages). https://www.bls.gov/web/ecec/
ececqrtn.pdf. Accessed and downloaded, October
12, 2016.
48 Base hourly wage rate of $54.26 multiplied by
a 1.46 benefits factor. ($54.26 × 1.46 = $79.22)
U.S. Department of Labor, Bureau of Labor
Statistics, Occupational Employment Statistics,
May 2016, All Data (XLS), National IndustrySpecific Occupational Employment and Wage
Estimates, NAICS code 999200, State Government
excluding schools and hospitals, and Standard
Occupational Classification (SOC) code 11–1011 for
Chief Executives. https://www.bls.gov/oes/
tables.htm. Accessed and downloaded, October 12,
2016.
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requests for IA that States submitted
between January 1, 2012 and December
31, 2016. All were examined, whether
the declaration was granted or denied.
FEMA found that the four new Fiscal
Capacity sub-factors had not been
provided previously by States. FEMA
found that out of the remaining 23 subfactors, 19 were provided in at least 80
percent of the requests and only 4 were
provided in less than 20 percent of the
request letters. All four are sub-factors
of the Disaster Impacted Population
Profile factor. Specifically, the four subfactors are the percentage of population
already receiving government assistance
such as Supplemental Security Income
and Supplemental Nutrition Program
benefits appeared in only 5 percent of
the requests (4 occurrences in 85 total
requests); the percentage of the
population who speak a language other
than English and speak English less
than ‘‘very well’ in only 7 percent of the
requests (6 occurrences in 85 total
requests); the percentage of population
18 years old and younger in only 18
percent (15 occurrences in 85 total
requests); and any unique
considerations regarding American
Indian and Alaskan Native Tribal
populations that may not be reflected in
the U.S. Census Bureau data in only 18
percent of the requests (15 occurrences
in 85 requests). FEMA found that these
specific sub-factors were included by
States when they believed the disaster
adversely affected and heighted the
vulnerability of these particular
segments of the population. This is
consistent with to FEMA’s longstanding consideration of how any given
disaster affects the population that is 65
years and greater, as well as the
percentage of the population with a
disability. The detailed findings are
presented in Table 5, and in the
marginal analysis table posted in the
docket at www.regulations.gov.
The 23 sub-factors being codified
were previously captured under the
‘‘other relevant information’’ prong of
44 CFR 206.48. FEMA does not expect
or require States to include every factor
in every disaster declaration request.
FEMA expects that States will continue
to provide a comparable level of
information in their request letters
based on their respective circumstances
and disaster effects; thus, FEMA does
not include a cost for codifying this
information and does not expect any
delays to the major disaster declaration
request process.
FEMA notes that if a State is unable
to provide information for a particular
factor, or factors, FEMA will evaluate
and provide a recommendation on the
State’s need for Federal assistance based
on the information submitted and data
available from other sources, as
appropriate. The only required elements
of a State’s major disaster declaration
request appear at 44 CFR 206.36.
FEMA’s intent, through this rule, is to
clearly identify the considered data
points that previously have been
captured under the ‘‘other relevant
information’’ prong of 44 CFR 206.48. In
some instances, certain pieces of
information identified in the rule may
not be applicable, may be unavailable,
or the circumstances of the disaster may
not allow a State to collect some
information identified within the rule.
In these instances, pursuant to 44 CFR
206.36, States must provide some
information that supports their request
for a major disaster declaration
authorizing IA, but will not have to
address every data point in 44 CFR
206.48 to be granted the request. For
example, for certain catastrophic events,
preliminary damage assessments are not
necessary to determine the requirement
for Federal assistance. In these
instances, States may submit an
abbreviated request pursuant to 44 CFR
206.36(d). These requests need only
contain limited information as specified
by that provision.
Large scale disasters may not need as
much detail or data to support a major
disaster declaration request. However,
under other circumstances, such as
when the disaster affects a smaller
geographic area, it may be more difficult
to determine if a need for Federal
disaster assistance exists without the
State providing sufficient information.
This rule identifies the factors that
FEMA will consider in its review of a
major disaster declaration request that
includes IA, and allows States to
supplement their submissions with
additional information. It is important
to note that ultimately, the amount and
type of data provided by the State is
voluntary. In addition, FEMA confirmed
that the Fiscal Capacity factor and its
sub-factors are updated at least annually
and are publicly available on Treasury’s
and BEA’s websites at no cost to
States.49 50 Given that these data are
updated at least annually, States are
encouraged to download the data when
they are updated.
FEMA estimates total State costs in
the first year to be $24,494 and costs in
subsequent years to be $2,896. The
following table presents the ten-year
costs for States (undiscounted,
discounted at 7 percent and discounted
at 3 percent).
TABLE 3—TOTAL COSTS TO THE STATES
Downloading
and updating
files
Year
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1
2
3
4
5
6
7
8
9
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
49 Treasury’s website provides current and past
TTR information for all States. Data has been
provided annually in mid- to late September since
1999. The only exception was in 2010, when the
data was provided on September 30, 2010, and
again on December 13, 2010, which was a research
series. See Treasury, Resource Center, Total Taxable
Resources, https://home.treasury.gov/policy-issues/
economic-policy/total-taxable-resources.
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$8,935
1,787
1,787
1,787
1,787
1,787
1,787
1,787
1,787
50 BEA’s website provides current and past GDP
by State and Local Area Personal Income. Annual
GDP by State data are updated quarterly with the
final published in May, following the calendar year
the data represents. For example, the final GDP by
State in 2015 was published in May 2016. This data
has been published annually since May 1988. For
Local Area Personal income, BEA updates the data
quarterly a final for each year provided in
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Cost to
familiarize
with rule
$2,218
1,109
1,109
1,109
1,109
1,109
1,109
1,109
1,109
Training
$13,340
0
0
0
0
0
0
0
0
Total
$24,494
2,896
2,896
2,896
2,896
2,896
2,896
2,896
2,896
November, following the calendar year the data
represents. For example, the final data Local Are
Personal Income in 2015 was published in
November 2016. BEA first published personal
income for States, counties, and metropolitan areas
in 1975. See BEA, Local Area Personal Income
Methodology at I–2 (Nov. 2016), available at https://
www.bea.gov/sites/default/files/methodologies/
0417_GDP_by_State_Methodology.pdf.
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10651
TABLE 3—TOTAL COSTS TO THE STATES—Continued
Downloading
and updating
files
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Year
Cost to
familiarize
with rule
Training
Total
10 .....................................................................................................................
1,787
1,109
0
2,896
Total ..........................................................................................................
Discounted at 7% .....................................................................................
Annualized at 7% .....................................................................................
Discounted at 3% .....................................................................................
Annualized at 3% .....................................................................................
25,019
19,232
2,738
22,184
2,601
12,199
8,826
1,257
10,537
1,235
13,340
12,468
1,775
12,952
1,518
50,558
40,525
5,770
45,673
5,354
b. Federal Costs
FEMA anticipates the Federal
government will incur small additional
costs resulting from the final rule. As
noted above, FEMA already considers
most of these factors under the ‘‘other
relevant information’’ prong of the
regulation when reviewing major
disaster declaration requests. FEMA
already had begun changing the way it
collects information internally for major
disaster declaration recommendations,
which did not require regulatory action.
Therefore, these increased costs already
had been internalized without this
regulation. For this reason, the only
expected increased costs are due to the
new Fiscal Capacity factor. FEMA
believes this additional activity will be
accomplished with existing personnel;
thus, the costs are considered the
opportunity cost of the activities that
would have otherwise been performed.
No increase in Federal expenditures is
expected to result from this final rule.
In the past, FEMA would review predisaster data about a disaster location.
This pre-disaster data provided FEMA
with information that helped to
illustrate the population and geographic
area that was affected by a disaster. The
pre-disaster data came from Federal
sources, such as the United States
Census Bureau and Bureau of Economic
Analysis (BEA). Independent of the
regulation, FEMA began to streamline
how pre-disaster data is collected and
disseminated, as well as collect and
transmit information for the PDA
process more quickly.
One of the areas where FEMA will
incur costs is for the retrieval of fiscal
capacity data from the United States
Department of the Treasury (Treasury)
and BEA. FEMA used the same
information on estimated additional
activity time that was presented
previously: Time to retrieve, store, and
update the data from Treasury (12.5
minutes); BEA’s GDP by State (12.5
minutes); and BEA’s per capita personal
income by local area (22.5 minutes).
FEMA summed these three time
burdens to calculate a total burden of
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47.5 minutes (12.5 + 12.5 + 22.5 = 47.5).
The total burden of 47.5 minutes was
divided by 60 minutes, for an estimated
increased burden of 0.8 hours ([12.5 +
12.5 + 22.5] ÷ 60 = 0.7917).
FEMA expects the data retrieval will
take place once annually. The retrieval
will be completed by a Federal
employee in the DC area at the General
Schedule 12, step 1 level, earning an
hourly wage rate of $36.60.51 These
positions have a fully-loaded wage rate
of $53.44.52 FEMA multiplied the time
per year, 0.8 hours, by the fully-loaded
wage rate of $53.44, to get an annual
Federal cost increase of $43 (0.8 ×
$53.44 = $42.75).
FEMA also included costs in year 1
associated with providing training on
the rule. FEMA received a public
comment requesting FEMA to provide
adequate training on the rule once
finalized. As a result of this comment,
and because the intent of the rule is to
provide clarity, FEMA provided
outreach seminar to States after the
NPRM and will offer training for all
States on the changes included in the
final rule. Thus, FEMA has added the
cost for these events to the analysis of
this final rule. To estimate the costs of
the rule and capture the cost of
developing both the NPRM outreach
and the final rule training to States,
FEMA used the time data from
developing and presenting the NPRM
training.
51 The General Schedule (GS) 12 (Step 1) hourly
wage of $37.13 is taken from the Office of Personnel
Management; 2015 General Schedule (GS) salaries
& wages tables; locality pay tables (WashingtonBaltimore- Northern Virginia, DC–MD–VA–WV–
PA). Retrieved April 4, 2016, from https://
www.opm.gov/policy-data-oversight/pay-leave/
salaries-wages/salary-tables/pdf/2015/salhrl.pdf.
52 Base hourly wage rate of $36.60 multiplied by
a 1.46 benefits factor. ($36.60 × 1.46 = $53.44)
Bureau of Labor Statistics, Employer Costs for
Employee Compensation, 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, June 2016.’’ Calculated by dividing total
compensation for all workers of $34.05 by wages
and salaries for all workers of $23.35 per hour
(yields a benefits multiplier of approximately 1.46
× wages). https://www.bls.gov/oes/tables.htm.
Accessed and downloaded, October 12, 2016.
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Frm 00021
Fmt 4701
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The NPRM outreach materials will be
modified to reflect the content of the
final rule. FEMA anticipates this
activity will be accomplished by a
Federal employee in the DC area at the
General Schedule 15, step 5 level,
earning an hourly wage rate of $68.56.53
These positions have a fully-loaded
wage rate of $100.10.54 FEMA estimates
it will spend a total of 5 hours preparing
training materials, including the time
spent developing the original training
materials and updating the existing
materials,55 which results in a one-time
cost of $500 ($100.10 × 5 hours =
$500.50).56 In addition, the training
materials are reviewed by two Federal
employees in the DC area at the General
Schedule 13, step 5, earning an hourly
wage rate of $49.32. FEMA multiplied
this wage rate by 1.46 to account for
benefits, resulting in a fully-loaded
wage rate of $72.01. FEMA estimates
spending approximately 0.5 hours for
each employee to review each set of
training materials.57 The resulting
53 The General Schedule (GS) 15 (Step 5) hourly
wage of $37.13 is taken from the Office of Personnel
Management; 2015 General Schedule (GS) salaries
& wages tables; locality pay tables (WashingtonBaltimore- Northern Virginia, DC–MD–VA–WV–
PA). Retrieved April 4, 2016 from https://
www.opm.gov/policy-data-oversight/pay-leave/
salaries-wages/salary-tables/pdf/2015/salhrl.pdf.
54 Base hourly wage rate of $68.56 multiplied by
a 1.46 benefits factor. ($68.56 × 1.46 = $100.10)
Bureau of Labor Statistics, Employer Costs for
Employee Compensation, 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, June 2016.’’ Calculated by dividing total
compensation for all workers of $34.05 by wages
and salaries for all workers of $23.35 per hour
(yields a benefits multiplier of approximately 1.46
× wages). https://www.bls.gov/oes/tables.htm.
Accessed and downloaded, October 12, 2016.
55 FEMA took 3 hours to develop the NPRM
outreach webinar and expects to take 2 hours to
update that same material for training on the final
rule.
56 Although commonly held rounding methods
hold that $500.50 is rounded up to $501, FEMA did
not round up at this step. The calculation method
used in this analysis rounds up to the nearest dollar
at the final calculation.
57 The FEMA employees who review the
materials will do so two times—once for the NPRM
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review time is estimated at $144 ($72.01
× 2 staff × 0.5 hours × 2 reviews =
$144.02).
FEMA presented one-hour outreach
sessions two times for the NPRM via
webinar and anticipates the same format
for the final rule training, but will
increase the number of times the
training will be offered to four for the
final rule. The set-up and technical
monitoring of the webinars is expected
to be accomplished by two General
Schedule 12, step 1 level, with a fullyloaded wage rate of $53.44. Based on its
previous experience, FEMA estimates it
will take 0.5 hours to set up and take
down the webinar plus an additional 1
hour to monitor. FEMA estimates the
one-time cost to set up and monitor the
webinars is $962 ($53.44 × 1.5 hours ×
2 staff × 6 webinars 58 = $961.92).
The training is presented by four
FEMA staff located in the DC area, one
GS 15, step 5 level and three GS 13, step
5 level with fully-loaded hours wage
rates of $100.10 and $72.01,
respectively. To present six, one-hour
webinars, the estimated total costs for
presenters is $1,897 [($100.10 × 1 GS–
15 staff × 6 hours) + ($72.01 × 3 GS–13
staff × 6 hours) = $1,896.78].
FEMA estimates the Federal
Government’s total costs in the first year
to be $3,546, which includes $43 to
retrieve fiscal capacity data; $500 to
develop and update the training; $144 to
review the updates; $962 to set-up and
monitor the webinars; and $1,897 to
present the training ($42.75 + $500.50 +
$144.02 + $961.92 + $1,896.78 =
$3,545.97). Costs in subsequent years
are estimated to be $43 for retrieving the
fiscal capacity data. The following table
presents the total ten-year costs for both
FEMA and States (undiscounted,
discounted at 7 percent and discounted
at 3 percent).
TABLE 4—TOTAL COSTS OF THE RULE
States
Year
Downloading
data and
updating files
Familiarize
with rule
Training
Downloading
data
Total
Training
1 ...............................................................
2 ...............................................................
3 ...............................................................
4 ...............................................................
5 ...............................................................
6 ...............................................................
7 ...............................................................
8 ...............................................................
9 ...............................................................
10 .............................................................
$8,935
1,787
1,787
1,787
1,787
1,787
1,787
1,787
1,787
1,787
$2,218
1,109
1,109
1,109
1,109
1,109
1,109
1,109
1,109
1,109
$13,340
0
0
0
0
0
0
0
0
0
$43
43
43
43
43
43
43
43
43
43
$3,503
0
0
0
0
0
0
0
0
0
$28,040
2,939
2,939
2,939
2,939
2,939
2,939
2,939
2,939
2,939
Total ..................................................
Discounted at 7% .............................
Annualized at 7% ..............................
Discounted at 3% .............................
Annualized at 3% ..............................
25,019
19,232
2,738
22,184
2,601
12,199
8,826
1,257
10,537
1,235
13,340
12,468
1,775
12,952
1,518
430
302
43
367
43
3,503
3,274
466
3,401
399
54,494
44,102
6,279
49,441
5,796
c. Benefits
amozie on DSK9F9SC42PROD with RULES2
FEMA
Benefits of the final rule include
clarifying FEMA’s existing practices and
reducing processing time for requests,
while maintaining the States’ ability to
assess and determine what information
best supports a major declaration
request. This rule does not preclude that
flexibility for States. Rather, the rule
provides clarity by specifically
identifying factors considered in the IA
declarations process, including many
factors that FEMA previously
considered under the ‘‘other relevant
information’’ prong of the regulation but
are not currently specified in 44 CFR
206.48(b).
As noted above, most of the
information included in the factors was
previously captured under the ‘‘other
relevant information’’ prong of the 44
outreach materials and once for the final rule
materials.
58 The total number of webinars reflects two
conducted to support the NPRM and four for the
final rule.
VerDate Sep<11>2014
20:41 Mar 20, 2019
Jkt 247001
CFR 206.48. FEMA used this
information, when appropriate, in
evaluating requests for a major disaster
declaration that authorized IA. In some
instances, FEMA has had to reach back
to the State to obtain additional
information 59 on major disaster
declaration requests which would better
support FEMA’s recommendation on a
major disaster declaration authorizing
IA. By clearly identifying information
considered in the rule, FEMA
anticipates that delays in the declaration
process will be reduced. The changes in
the final rule will improve clarity
regarding relevant information that can
be used to substantiate a declaration
request. States are encouraged to
include the additional information in
the original request because it may
reduce follow-up correspondence and
speed up the determination of a major
disaster declaration request. Currently,
FEMA does not track the number of
times FEMA has had to reach back to
the State for additional information and
the reduction cannot be quantified at
present. However, FEMA subject matter
experts believe that greater clarity will
promote understanding, resulting in less
back-and-forth.60
FEMA believes inclusion of the new
Fiscal Capacity factor will further
inform and strengthen FEMA’s
recommendations to the President with
regard to major disaster declarations
that authorize IA. TTR is sufficiently
reliable to serve as the principal
indicator for each State from which the
discussion about fiscal capacity can
begin. TTR provides a general picture of
how a State’s economy is changing over
time. FEMA recognizes there is a twoyear lag in TTR data and encourages
59 Historically, FEMA has attempted to increase
clarity by providing States with major disaster
declaration request template letters, which
provided a suggested organizational structure for
States to follow when making their request for a
major disaster declaration.
60 In making past determinations, FEMA has not
tracked the length of time or the number of written
or oral correspondence with the State to retrieve
additional data. Therefore FEMA cannot quantify
the potential savings from the clarifications
provided in the regulation.
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10653
Federal Register / Vol. 84, No. 55 / Thursday, March 21, 2019 / Rules and Regulations
each State to provide additional
information about its fiscal capacity,
especially if there have been noteworthy
changes during the two-year period. In
addition, the new information
considered provides more context about
a State’s capacity to respond than
information FEMA previously
considered. For example, although
FEMA previously considered median
household income for States, this
measure does not necessarily reflect the
State’s capacity to respond, because it is
based on the individuals’ earnings.
Certainly, individual household
incomes within a State can affect the
State’s capacity to respond, but TTR
provides a more direct measurement.
The new information also may be more
objective compared to other ways of
assessing a State’s capacity to respond
for the same reasons.
d. Transfer Payments
FEMA intends the rule to specify and
codify factors it will use when making
recommendations to the President.
FEMA already considers the majority of
these factors described in the rule and
has done so during previous
deliberations on whether to recommend
a major disaster declaration authorizing
IA to the President. The only
information FEMA has not specifically
considered in the past are the new
measures of fiscal capacity.
Based on FEMA’s retrospective
analysis on the effect of using ICC ratios
in past declaration decisions, FEMA
concludes that even though State TTR is
a new factor, it will not have an impact
on the overall number of major disaster
declarations granted each year that
authorize IA because FEMA previously
used similar economic data and takes
multiple factors into account when
making its recommendation. FEMA
finds including the fiscal capacity factor
(State TTR for States; GDP by State for
Territories, and per capita personal
income for areas smaller than States and
Territories) to be additional objective
information because it captures income
flows that a State can potentially tax.
The ultimate determination regarding
whether or not to grant a State’s request
for a major disaster declaration resides
with the President of the United States.
FEMA neither anticipates nor intends
for this rule to affect the number of
major disaster declarations authorizing
IA that are granted each year. Rather,
FEMA believes this rule clarifies
FEMA’s regulations consistent with the
statutory mandate in a cost-effective
manner. The majority of the factors
included in the rule have previously
been considered by FEMA when it made
its recommendation to the President on
past declaration requests for IA. Based
on these reasons, FEMA anticipates this
rule will not have an effect on transfer
payments, which are payments from the
Federal government to States and
individuals.
6. Total Impact of the Final Rule
FEMA estimates the impact of all the
factors together will result in a small
burden increase for States and FEMA.
The additional burden results from
States having to provide the Fiscal
Capacity factor in their requests, to
attend training, and to become familiar
with the regulatory change. For FEMA,
the additional costs result from
retrieving data for its consideration of
major disaster declaration requests and
providing training on the rule to States.
The net quantified impact is a ten-year
total cost of $44,102 discounted at 7
percent and $49,441 discounted at 3
percent. These are considered
opportunity costs and are not expected
to increase staffing needs or have an
effect on Federal or State expenditures.
FEMA anticipates no impact to average
annual transfer payments due to
codifying the existing factors or
including the new factor. Based on the
above analysis, FEMA estimates the rule
will impose a total additional annual
burden to States and FEMA of $28,040
in year 1 and $2,939 in each subsequent
year.
7. Marginal Analysis of the Factors
The following table provides a
breakdown of each IA declaration factor
included in the final rule, its baseline,
and the marginal effect of the rule.
Activity costs per year 61 and associated
benefits also are included. The rule
would not change the total amount of
Federal assistance available to
individuals and households.
TABLE 5—IA DECLARATIONS FACTOR BASELINE AND MARGINAL ANALYSIS
Factor
Baseline: factors previously included in
States’ Dec. requests
Number of times
amozie on DSK9F9SC42PROD with RULES2
Fiscal Capacity:
Total Taxable Resources (TTR) of the
State, 44 CFR
§ 206.48(b)(1)(i)(A).
VerDate Sep<11>2014
Percent
New ................................
61 FEMA based the proportional distribution of
the fiscal capacity factor costs in Table 6 on the
estimated time it takes to retrieve, store, and update
the data, as shown in section ‘‘5.a. State Costs.’’
FEMA estimated a total burden of 47.5 minutes (0.8
hours). Specifically, costs are apportioned to TTR
20:41 Mar 20, 2019
Jkt 247001
Marginal analysis
activity cost per year
n/a
States
Training: $911—In year 1,
FEMA will spend approximately 12.7 hours to develop, review, and conduct training on the new
factor and 0 hours and
$0 in subsequent years.
Training: $3,464—In year 1,
States will spend a total
of approximately 58
hours participating in the
IA declaration factor training, and 0 hours and $0
in subsequent years.
Download Data: $11—In
year 1, FEMA will spend
10–15 minutes retrieving
and storing Treasury data
(including all State data
in one retrieval).
Download Data and Update
Files: $2,323—In year 1,
States will spend a total
of approximately 58
hours retrieving and storing Treasury data and
updating templates to accommodate the new data.
data from Treasury (12.5 minutes or 26 percent of
the total); BEA’s GDP by State (12.5 minutes or 26
percent of the total); and BEA’s per capita personal
income by local area (22.5 minutes or 48 percent
of the total). For example, FEMA estimates the total
cost to FEMA for providing the IA declaration factor
PO 00000
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Benefits
FEMA
Fmt 4701
Sfmt 4700
Informs States that FEMA
may assess State’s taxable resources based on
TTR and will use TTR as
the basis for calculating
the ICC ratio to depict
State economic growth or
decline and relative fiscal
capacity with comparablysized States or the Nation.
training is $3,503. In Table 5 FEMA apportions 26
percent of the total ($911) to TTR, 26 percent of the
total ($911) to GDP by State, and 48 percent of the
total ($1,682) to per capita personal income by local
area.
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TABLE 5—IA DECLARATIONS FACTOR BASELINE AND MARGINAL ANALYSIS—Continued
Factor
Baseline: factors previously included in
States’ Dec. requests
Number of times
Gross Domestic Product
(GDP) by State 44
CFR
§ 206.48(b)(1)(i)(B).
New ................................
Marginal analysis
activity cost per year
Percent
n/a
States
$11—In subsequent years,
FEMA will spend 10–15
minutes retrieving and
storing Treasury data (including all State data in
one retrieval).
No new costs are included
for reviewing the data.
FEMA review of this data
is offset by no longer
having to review median
household income.
$464—In subsequent years,
States will spend a total
of approximately 12
hours retrieving and storing Treasury data for
their respective state.
No new costs are included
for reviewing the data.
FEMA assumes that
State review of this data
is offset by no longer
having to review median
household income.
Familiarization: $577—In
year 1, States will spend
a total of approximately
7.3 hours reading the
new rule as it relates to
Treasury data.
$288—In subsequent years,
States will spend a total
of approximately 3.6
hours re-reading the rule.
Training: $3,468—In year 1,
States will spend a total
of approximately 58
hours participating in the
fiscal capacity factor
training, and 0 hours and
$0 in subsequent years.
Training: $911—In year 1,
FEMA will spend approximately 12.7 hours to develop, review, and conduct training on the new
factor and 0 hours and
$0 in subsequent years.
Download Data: $11—
FEMA will spend 10–15
minutes a year for retrieving and storing BEA GDP
data (including all State
and Territory data in one
retrieval).
$11—In subsequent years,
FEMA will spend 10–15
minutes retrieving and
storing BEA GDP data
(including all State and
Territory data in one retrieval).
No new costs are included
for reviewing the data.
FEMA review of this data
is offset by no longer
having to review median
household income.
amozie on DSK9F9SC42PROD with RULES2
Per Capita Personal Income by Local Area,
44 CFR
§ 206.48(b)(1)(i)(C).
VerDate Sep<11>2014
New ................................
20:41 Mar 20, 2019
Jkt 247001
PO 00000
n/a
Frm 00024
Benefits
FEMA
Training: $1,682—In year 1,
FEMA will spend approximately 24 hours to develop, review, and conduct training on the new
factor and 0 hours and
$0 in subsequent years.
Fmt 4701
Sfmt 4700
Download Data and Update
Files: $2,323—In year 1,
States will spend a total
of approximately 58
hours retrieving and storing BEA GDP data and
updating templates to accommodate the new data.
$464—In subsequent years,
States will spend a total
of approximately 12
hours a year for retrieving
and storing BEA GDP
data for their respective
state.
No new costs are included
for reviewing the data.
FEMA assumes that
State review of this data
is offset by no longer
having to review median
household income.
Familiarization: $577—In
year 1, States will spend
a total of approximately
7.3 hours reading the
new rule as it relates to
BEA GDP data.
$288—In subsequent years,
States will spend a total
of approximately 3.6
hours re-reading the rule.
Training: $6,403—In year 1,
States will spend a total
of approximately 108
hours participating in the
fiscal capacity factor
training and 0 hours and
$0 in subsequent years.
E:\FR\FM\21MRR2.SGM
21MRR2
Informs States that FEMA
may assess State fiscal
capacity with this data
point when TTR data is
not available or if the
TTR data don’t reflect
current fiscal capacity
due to the two-year lag in
the data.
Provides FEMA the flexibility to use information
on the local fiscal capacity characteristics to
judge IA needs in disaster affected areas.
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TABLE 5—IA DECLARATIONS FACTOR BASELINE AND MARGINAL ANALYSIS—Continued
Factor
Baseline: factors previously included in
States’ Dec. requests
Number of times
amozie on DSK9F9SC42PROD with RULES2
Other Factors, 44 CFR
§ 206.48(b)(1)(i)(D).
Resource Availability:
State Tribal and Local
Governmental Organizations (NGO) and
Private Sector Activity,
44 CFR
§ 206.48(b)(1)(ii)(A).
Cumulative Effect of Recent Disasters, 44
CFR
§ 206.48(b)(1)(ii)(B).
Uninsured Home and Personal Property Losses:
The cause of damage,
44 CFR
§ 206.48(b)(2)(i).
The jurisdictions impacted and concentration of damage, 44
CFR § 206.48(b)(2)(ii).
The number of homes
impacted and degree
of damage, 44 CFR
§ 206.48(b)(2)(iii).
The estimated cost of
assistance, 44 CFR
§ 206.48(b)(2)(iv).
The homeowner-ship
rate of impacted
homes, 44 CFR
§ 206.48(b)(2)(v).
The percentage of affected households
with insurance coverage appropriate to
the peril, 44 CFR
§ 206.48(b)(2)(vi).
VerDate Sep<11>2014
Marginal analysis
activity cost per year
Percent
Benefits
FEMA
States
Download Data: $21—In
year 1, and subsequent
years, FEMA will spend
approximately 15–30 minutes to retrieving and
storing BEA Per Capita
Personal Income data (including data on all local
areas in one retrieval).
No new costs are included
for reviewing the data.
FEMA review of this data
is offset by no longer
having to review median
household income.
New ................................
n/a
FEMA’s time will vary and
data will be used on a
case-by-case basis as
needed. Costs not estimated.
Download Data and Update
Files: $4,289—In year 1,
States will spend a total
of approximately 108
hours retrieving and storing BEA Per Capita Personal Income data and
updating templates to accommodate the new data.
$858—In subsequent years,
States will spend a total
of approximately 21.5
hours a year for retrieving
and storing BEA Per
Capita Personal Income
data for their respective
state.
No new costs are included
for reviewing the data.
FEMA assumes that the
review of this data is offset by no longer having
to review median household income.
Familiarization: $1,065—In
year 1, States will spend
a total of approximately
13.4 hours reading the
new rule as it relates to
BEA PCPI data.
$532—In subsequent years,
States will spend a total
of approximately 6.7
hours re-reading the rule.
State time will vary and
data will be used on a
case-by-case basis as
needed. Costs not estimated.
76 of 85 total ..................
89
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
77 of 85 total ..................
91
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
85 of 85 total ..................
100
99
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
84 of 85 total ..................
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
76 of 85 total ..................
89
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
73 of 85 total ..................
86
64
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
54 of 85 total ..................
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
68 of 85 total ..................
80
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
20:41 Mar 20, 2019
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Frm 00025
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E:\FR\FM\21MRR2.SGM
21MRR2
Provides flexibility to use
any other data or information on a State or local
area’s fiscal capacity to
judge disaster needs in
affected areas.
Clarification of current practice in regulation.
Clarification of current practice in regulation.
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TABLE 5—IA DECLARATIONS FACTOR BASELINE AND MARGINAL ANALYSIS—Continued
Factor
Baseline: factors previously included in
States’ Dec. requests
Number of times
Other relevant preliminary damage assessment data, 44 CFR
§ 206.48(b)(2)(vii).
Percent
amozie on DSK9F9SC42PROD with RULES2
VerDate Sep<11>2014
FEMA
States may provide any additional information they believe is pertinent to the declaration request
Disaster Impacted Population Profile:
The percentage of the
71 of 85 total ..................
population for whom
poverty status is determined, 44 CFR
§ 206.48(b)(3)(i).
The percentage of the
**4 of 85 total .................
population already receiving government
assistance such as
Supplemental Security
Income and Supplemental Nutrition Assistance Program
benefits, 44 CFR
§ 206.48(b)(3)(ii).
The pre-disaster unem58 of 85 total ..................
ployment rate, 44
CFR § 206.48(b)(3)(iii).
The percentage of the
population that is 65
years old and older,
44 CFR
§ 206.48(b)(3)(iv).
The percentage of the
population 18 years
old and younger, 44
CFR § 206.48(b)(3)(v).
The percentage of the
population with a disability, 44
CFR§ 206.48(b)(3)(vi).
The percentage of the
population who speak
a language other than
English and speak
English less than
‘‘very well’’, 44 CFR
§ 206.48(b)(3)(vii).
Any unique considerations regarding
American Indian and
Alaskan Native Tribal
populations that may
not be reflected in the
U.S. Census Bureau
data, 44 CFR
§ 206.48(b)(3)(viii).
Impact to Community Infrastructure:
Life Saving and Life
Sustaining Services,
44 CFR
§ 206.48(b)(4)(i).
Essential Community
Services, 44 CFR
§ 206.48(b)(4)(ii).
Transportation Infrastructure and Utilities,
44 CFR
§ 206.48(b)(4)(iii).
Casualties: The number of
missing, injured, or deceased individuals, 44
CFR § 206.48(b)(5).
Marginal analysis
activity cost per year
Benefits
States
FEMA’s time will vary and
data will be used on a
case-by-case basis as
needed. Costs not estimated.
State time will vary and
data will be used on a
case-by-case basis as
needed. Costs not estimated.
Clarification of current practice in regulation.
84
$0—No change in time burden due to current compliance, data collected in
PDA process.
$0—No change in time burden due to current compliance, data collected in
PDA process.
Clarification of current practice in regulation.
5
$0—No change in time burden due to current compliance, data collected in
PDA process.
$0—No change in time burden due to current compliance, data collected in
PDA process.
Clarification of current practice in regulation.
68
$0—No change in time burden due to current compliance, data collected in
PDA process.
$0—No change in time burden due to current compliance, data collected in
PDA process.
$0—No change in time burden due to current compliance, data collected in
PDA process.
$0—No change in time burden due to current compliance, data collected in
PDA process.
Clarification of current practice in regulation.
$0—No change in time burden due to current compliance, data collected in
PDA process.
$0—No change in time burden due to current compliance, data collected in
PDA process.
$0—No change in time burden due to current compliance, data collected in
PDA process.
$0—No change in time burden due to current compliance, data collected in
PDA process.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
$0—No change in time burden due to current compliance, data collected in
PDA process.
Clarification of current practice in regulation.
69 of 85 total ..................
81
**15 of 85 total ...............
18
57 of 85 total ..................
67
**6 of 85 total .................
7
**15 of 85 total ...............
18
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
71 of 85 total ..................
84
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
70 of 85 total ..................
82
86
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
73 of 85 total ..................
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
59 of 85 total ..................
69
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
20:41 Mar 20, 2019
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Clarification of current practice in regulation.
Clarification of current practice in regulation.
Clarification of current practice in regulation.
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TABLE 5—IA DECLARATIONS FACTOR BASELINE AND MARGINAL ANALYSIS—Continued
Factor
Baseline: factors previously included in
States’ Dec. requests
Number of times
Disaster Related Unemployment: The number of disaster survivors who lost
work or became unemployed due to a disaster
and who do not qualify for
standard unemployment
insurance, 44 CFR
§ 206.48(b)(6).
Summary of All Factors, 44
CFR § 206.48(b).
Marginal analysis
activity cost per year
Percent
Benefits
FEMA
States
**34 of 85 total ...............
40
$0—No change in time burden due to current compliance.
$0—No change in time burden due to current compliance.
Clarification of current practice in regulation.
.........................................
........................
$3,546 in year 1 and $43 in
subsequent annual reoccurring costs—Increased
time burden due to the
new factor, downloading
and storing data, and
training (year 1 only).
$24,494 in year 1 and
$2,896 in subsequent annual reoccurring costs—
Increased time burden
due to the new factor,
downloading and storing
data and updating files,
familiarization, and training (year 1 only).
Informs States with the information that FEMA considers when deciding
whether to recommend
an IA declaration to the
President
Baseline: 85 total declaration requests examined.
Marginal Effect of Final Rule: 4 New and
23 Previously Considered
* Activity Cost per Year captures training costs (development and presentation by FEMA; attendance by States) for both the NPRM outreach webinars and the final
rule training webinars. FEMA is providing outreach and training webinars in response to a public comment requesting training on the new rule once finalized. Thus,
FEMA has added the cost for these webinars to the analysis of this final rule. An Activity Cost per Year that is listed as ‘‘$0’’ represents the incremental cost associated with codifying the factor in the final rule. As stated throughout, these factors were previously considered; thus, there is $0 new cost, i.e. no marginal cost associated with codifying the factor.
** These factors are specific to demographic components that States do not frequently include in their disaster declaration requests. FEMA believes that when
these factors are included in a request, it is because the affected State focuses on the vulnerability of that demographic component and its needs. For example, the
population under 18 years of age is often included when schools have been damaged and special assistance is requested. Tribal concerns and the population that
speaks English less than ‘‘very well’’ often are not included because these populations were not specifically focused on by the State. Post-disaster unemployment is
often not included unless a specific industry which is key in the disaster impact area was severely affected. FEMA does not expect States to include every factor in
every request, and anticipates States will continue to include these factors only where appropriate for the type and level of disaster.
8. Regulatory Alternatives
FEMA includes the regulatory
alternatives to the rule and FEMA’s
reasons for not choosing each
alternative in the following discussion.
FEMA’s decision on each alternative
was based on qualitative factors and not
on a quantitative analysis of these
alternatives. When possible, FEMA
acknowledges if a given alternative
could have an impact on transfer
payments or costs.
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a. Voluntary, Faith and Community
Based Organizations Resources
FEMA considered removing the factor
under which FEMA would consider the
availability of resources from voluntary,
faith-based, and community-based
organizations during disasters.
Commenters suggested removing this
factor because the available data about
these resources may not accurately
reflect actual resource availability for
any given disaster. For instance, the
availability of voluntary, faith-based,
and community-based organizations
may be limited by such organizations’
financial circumstances, their donors’
economic situations, and the
circumstances of their volunteers.
FEMA recognizes this concern, but
believes that information on the
activities of these organizations is
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20:41 Mar 20, 2019
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generally valuable because it can
enhance the picture of disaster needs at
a local level and may offset or reveal a
need for supplemental Federal
assistance. FEMA also recognizes that
these organizations have limited
resources and considers this point when
determining the need for an IA
declaration.
FEMA anticipates there could be
impacts on transfer payments due to
changes in the number of disaster
declarations if resources available from
voluntary, faith, and community based
organizations were no longer
considered. If FEMA were to remove
this factor from consideration in major
disaster declaration requests for IA, it
could potentially result in either a
decrease or an increase in transfer
payments, depending on the situation.
For example, if a State’s voluntary
agencies are overwhelmed, but the State
declines to provide this information to
FEMA as part of its declaration request,
then FEMA might be less likely to find
that Federal assistance is warranted.
And if a State’s voluntary agencies are
providing ample assistance but the State
declines to provide this information to
FEMA as part of its declaration request,
FEMA might be more likely than it
otherwise would to find that Federal
assistance is warranted.
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b. Maintain the 44 CFR 206.48(b)(6)
Table
FEMA evaluated the usefulness of the
table at current 44 CFR 206.48(b)(6),
which lists the average amount of IA
based on State size. FEMA ultimately
determined that the table causes
confusion with stakeholders, sometimes
resulting in the misimpression that the
averages function as a threshold for
whether a State should request IA.
FEMA never intended the table to set a
threshold of eligibility for IA. Rather, it
is intended as guidance to States and
voluntary agencies as they develop
plans and programs to meet the needs
of disaster survivors. Furthermore, the
table has been interpreted by States to
suggest that State population is the main
factor, or the only factor, in determining
State capability or fiscal capacity. Under
this rule, FEMA will continue to
consider various factors when making
its recommendation. FEMA did not
quantify the potential impacts of
implementing this alternative, but
assumed there would not be economic
impacts from maintaining the table
because other factors are already
considered. FEMA has chosen to
remove the table for clarification
purposes.
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c. Automatically Trigger Contiguous
Counties and States
Based on public comments, FEMA
considered whether to include a
provision that would allow contiguous
affected counties and States to be
automatically eligible for assistance
under a major disaster declaration after
an event that crosses the borders of a
declared State, county, or parish. FEMA
recognizes that governmental
boundaries do not bind disaster events
geographically. When considering
whether to recommend a declaration in
a particular area, FEMA must consider
the damages in the area, as well as the
capabilities of the jurisdictional
governments. The Stafford Act requires
that a Governor’s request for a major
disaster declaration be based on a
finding that the disaster is of such
severity and magnitude to be beyond the
capabilities of the State and affected
local governments to effectively
respond. 42 U.S.C. 5170(a). Thus, FEMA
is maintaining the requirement that each
State must request a major disaster
declaration after determining that the
disaster damages and impacts are
beyond the capabilities of the affected
area’s State or local government. FEMA
cannot automatically grant a major
disaster declaration based on a request
from the State’s Governor and an area’s
proximity to other declared areas
without evidence that the disaster
damage and impacts are beyond the
affected area’s capabilities.
FEMA did not quantify the potential
impacts of implementing this
alternative, but acknowledges there
could be an increase in transfer
payments if FEMA automatically
declared affected counties and States
contiguous to a declared State or
county. FEMA believes this alternative
would increase transfer payments
because specifics about damage
information and resource capabilities of
nearby counties would not be
considered and contiguous counties
could be provided assistance based on
geographic proximity rather than
demonstrated need.
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d. Considering Negative Impact on
Businesses
Commenters also recommended that
FEMA consider including the impact of
an incident on businesses in affected
areas due to the potential loss of family
income and the direct correlation to
communities’ recovery. Consistent with
the proposed rule, FEMA included a
factor in this rule that considers the
impact to businesses by capturing the
negative impacts to employers and
employees who are disaster survivors.
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See 44 CFR 206.48(b)(6). As part of
information provided under this factor,
the State may provide an estimate of the
number of disaster survivors who lost
work or became unemployed due to a
disaster and who do not qualify for
standard unemployment insurance, as
well as information regarding major
employers affected. The negative impact
on the survivors may affect a
community’s ability to recover. This
impact is captured in the Disaster
Unemployment Assistance (DUA)
factor, which provides information on
the potential need for unemployment
benefits and re-employment services to
individuals who have become
unemployed as a result of a major
disaster and who are not eligible for
regular State unemployment insurance.
See id.; see also 44 CFR 206.141.
Business losses alone will not result
in a Presidential major disaster
declaration that authorizes IA because
the IA grant programs do not provide
assistance to businesses. Instead, FEMA
considers the effect that business
disruptions have on disaster survivors.
For example, if disaster survivors lose
work or become unemployed due to
business impacts from a disaster, this
information may highlight an increased
need for DUA. In addition, the SBA has
separate statutory authority and
programs, which may be available to
assist businesses regardless of whether
the President has issued a major disaster
declaration.
FEMA did not quantify the impacts of
the alternative considering business
losses separately from business impacts
to disaster survivors because FEMA
cannot provide assistance for business
losses.
e. Linking Individual Assistance Cost
Factor With Public Assistance (PA) Cost
Factor
Commenters also recommended that
FEMA consider aligning the financial
indicators for IA and PA major disaster
declarations. Commenters asked why a
financial indicator could not be used for
IA since FEMA evaluates whether a
State is eligible for PA based on a
financial indicator. Currently, FEMA
evaluates the need for a PA major
disaster declaration using the estimated
cost of Federal and non-Federal public
assistance per capita (i.e., against the
statewide population). 44 CFR
206.48(a)(1). That factor also establishes
a $1 million threshold, based on the
proposition that even States with the
smallest populations have the capability
to cover that level of infrastructure
damage. Under FEMA’s current
regulations, there is no corresponding
IA single indicator designed to evaluate
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the total cost of the disaster against the
capability of a requesting State.
Since the per capita indicator was
initially adopted in 1986, it has lost its
relation to both of the metrics upon
which it was first calculated. In 1986,
per capita personal income (PCPI) in the
United States was $11,687. By 2015,
PCPI had risen to $48,112, an increase
of over 300 percent. FEMA has applied
inflation adjustments since 1999, and
the per capita indicator has risen by just
41 percent over that same period.
The Public Assistance per capita
indicator has also fallen short of keeping
pace with State general fund
expenditures. According to the National
Association of State Budget Officers
(NASBO), State general fund spending
in 2015 totaled $759.4 billion.
Collectively, the States’ per capita
indicators equaled $435.3 million in
2015. Consequently, the relation of the
per capita indicator to State general
fund expenditures is just 57 percent of
what it was in 1986.
The failure of the per capita indicator
to keep pace with changing economic
conditions and the increasing frequency
and costs of disasters has led to
criticism of the per capita indicator.
Those critiques have emphasized that
the per capita indicator is artificially
low. Many have called for FEMA to find
ways to decrease the frequency of
disaster declarations and Federal
disaster costs, by increasing the per
capita indicator to transfer costs back to
State and local jurisdictions. These have
included recommendations from GAO,
reports of the DHS OIG, and proposed
legislation. FEMA is currently
evaluating possible alternatives to the
per capita indicator. See, e.g., 82 FR
4064 (Jan. 12, 2017).
FEMA chose not to use the PA per
capita indicator measure and instead
chose to use the fiscal capacity factor as
the indicator of a State’s fiscal capability
to meet the needs of individuals after an
event. FEMA considers multiple factors
and does not believe a set limit, even
based on estimated damages and
population, is an appropriate indicator
for IA due to the varying needs and
circumstances of disaster survivors.
FEMA did not quantify the impact of
this alternative, but assumes it could
have an impact on transfer payments
given that it could potentially change
the number of major disaster
declarations that authorize IA.
f. Use of Factor Thresholds
Some stakeholders indicated they
would prefer specific ‘‘hard’’ thresholds
that indicate whether a State would be
eligible to receive a major disaster
declaration authorizing IA. The
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stakeholders felt established thresholds
give States a clear idea of what level of
damage and need the State must have
before requesting assistance. Further,
the stakeholders believed thresholds
would prevent States from spending the
time compiling the data and requesting
a declaration when they have not
sustained enough damage to qualify for
a major disaster declaration that
authorizes IA.
FEMA rejected a threshold indicator
because it is inconsistent with the
principles of Section 320 of the Stafford
Act which prohibits the denial of
assistance to a geographic area based
solely on the use of an arithmetic
formula or a sliding scale based on
income or population. 42 U.S.C. 5163.
FEMA believes that a systematic and
objective approach using standardized
factors is important for making informed
and consistent recommendations to the
President as well as enhancing
predictability for a State when they
request IA. FEMA also decided to not
pursue using thresholds because they
are too restrictive for determining
whether disaster survivors need
assistance after an event and are not
flexible enough to assess the various
scenarios that demonstrate the State’s
need for a declaration authorizing IA.
FEMA assumes this alternative could
have an impact on transfer payments
due to changes in the number of
declarations and could reduce States’
costs if they chose not to pursue a
declaration request for IA.
g. Homes in Foreclosure
Some stakeholders expressed concern
that if an area with a high foreclosure
rate is affected by a disaster, then these
homes would be a greater burden to the
State during the recovery process.
Stakeholders believed that homes in
foreclosure (either abandoned or owned
by the bank) are not taken care of as
well as homes that are owner-occupied.
When the home is owned by the bank,
there may be little incentive to quickly
make the repairs. When it is abandoned,
there is no incentive to make the repairs
and the properties are often abated by
the community through code
enforcement, which likely translates to
additional costs and time burden on the
community.
FEMA recognizes that high levels of
foreclosure may be associated with
economic difficulties in the affected
area and this could negatively impact a
community’s ability to recover.
However, FEMA’s IA programs do not
provide any form of assistance for
foreclosed homes; repair assistance is
available only for owner-occupied
primary residences. If a State believes
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the number of homes in foreclosure will
impact their capability to respond to the
disaster, then the State may articulate
this concern in the narrative portion of
its declaration request. FEMA considers
all relevant information provided in a
State’s request. See 44 CFR 206.48.
However, FEMA believes other factors,
including poverty level, pre-disaster
unemployment, and per capita personal
income are adequate indicators of
economic health. For this reason, FEMA
chose to not include home foreclosure
rates as an evaluation factor.
h. Do Not Include Fiscal Capacity
Indicators
FEMA considered the alternative of
not including fiscal capacity indicators.
FEMA chose to include the fiscal
capacity indicators for the reasons set
forth above. The Stafford Act is
premised upon State and local
governments handling response and
recovery to disasters that are within
their capability, with the Federal
government only stepping in with
supplemental assistance for events that
are beyond local and then State
capability. This necessarily requires an
examination of the capability of the
State government. Given that the
supplemental assistance that FEMA
provides is overwhelmingly in the form
of financial assistance, it is important to
determine whether a given event is
within, or should be within, the State’s
fiscal capacity. If FEMA were not to
include the fiscal capacity indicators it
would be forced to rely on population
as a proxy. In addition, FEMA would
continue to utilize the inadequate and
outdated table found at 44 CFR
206.48(b)(6) which divides States into
three buckets (small, medium, and
large) based solely on population size
instead of a more individualized look at
each State’s fiscal resources and
capability. In this alternative, the
Federal cost of the final rule is
estimated to decrease by approximately
$43 a year, based on FEMA no longer
having to retrieve BEA and Treasury
data. The cost to States is estimated to
decrease by approximately $8,935 in
year 1 and $1,787 in each subsequent
year for the same reason.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(RFA), 5 U.S.C. 601 et seq., as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub.
L. 104–121, 110 Stat. 857), FEMA must
consider the impact of this rule on small
entities. The term ‘‘small entities’’
includes small businesses; not-for-profit
organizations that are independently
owned and operated and are not
PO 00000
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10659
dominant in their fields; and
governmental jurisdictions with
populations of less than 50,000. When
the Administrative Procedure Act
requires an agency to publish a notice
of proposed rulemaking under 5 U.S.C.
553, the RFA requires a regulatory
flexibility analysis for both the proposed
rule and the final rule. This requirement
does not apply if the head of the agency
certifies that the rule will not, if
promulgated, have a significant
economic impact on a substantial
number of small entities. 5 U.S.C.
605(b). Such certification must include
a statement providing the factual basis
for such certification.
This final rule provides States with
factors FEMA will consider when
making a recommendation on a major
disaster declaration that authorizes IA.
The rule codifies many factors that are
currently considered, but are not
adequately captured in 44 CFR
206.48(b). This rule will not directly
impact small businesses, small not-forprofit organizations, or small
governmental jurisdictions. States are
not considered small entities under the
RFA because they have populations of
more than 50,000.62 Hence, FEMA
certifies under 5 U.S.C. 605(b) that this
final rule will not have a significant
economic impact on a substantial
number of small entities.
C. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 658, 1501–1504, 1531–
1536, 1571, pertains to any notice of
proposed rulemaking which implements
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. FEMA has determined
this rule can be excluded from this
assessment because the rule meets the
criteria set forth in 2 U.S.C. 1503(4),
which states, ‘‘This chapter shall not
apply to . . . any provision in a
proposed or final Federal regulation that
. . . (4) provides for emergency
assistance or relief at the request of any
State, local, or tribal government or any
official of a State, local, or tribal
62 The District of Columbia, Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands,
which are considered States under 44 CFR
206.2(a)(22), all have populations greater than
50,000.
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government.’’ Therefore, no actions are
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
D. National Environmental Policy Act
Under the National Environmental
Policy Act of 1969 (NEPA), as amended,
42 U.S.C. 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 final rule
amends an existing regulation without
changing its environmental effect,
which meets Categorical Exclusion
A3(d).
In addition, this final rule revises the
criteria that FEMA considers when
recommending an area eligible for IA
under a major disaster declaration. This
activity amounts to information and
data gathering and reporting in support
of emergency and disaster response and
recovery activities. Therefore, the
activity this final rule applies to meets
Categorical Exclusion M11 in
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.
Because no other extraordinary
circumstances have been identified, this
rule does not require the preparation of
either an EA or an EIS as defined by
NEPA. See Department of Homeland
Security Instruction Manual 023–01–
001–01, Revision 01, Implementation of
the National Environmental Policy Act,
section (V)(B)(2).
E. 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.
In this final rule, FEMA is seeking a
revision to the already existing
collection of information, OMB Control
Number 1660–0009, because FEMA has
refined its estimate of the paperwork
burden associated with 1660–0009.
FEMA submitted the information
collection abstracted below to the Office
of Management and Budget for review
and clearance.
Collection of Information
Title: The Declaration Process:
Requests for Preliminary Damage
Assessment (PDA), Requests for
Supplemental Federal Disaster
Assistance, Appeals, and Requests for
Cost Share Adjustments.
Type of information collection:
Revision of a currently approved
collection.
OMB Number: 1660–0009.
Form Titles and Numbers: FEMA
Form 010–0–13, Request for Presidential
Disaster Declaration Major Disaster or
Emergency; FEMA Form 009–0–140.
Abstract: When a disaster occurs in a
State, the Governor of the State or the
Acting Governor in his/her absence,
may request a major disaster declaration
or an emergency declaration. The
Governor should submit the request to
the President through the appropriate
Regional Administrator to ensure
prompt acknowledgement and
processing. The information obtained by
joint Federal, State, and local
preliminary damage assessments will be
analyzed by FEMA regional senior level
staff. The regional summary and the
regional analysis and recommendation
will include a discussion of State and
local resources and capabilities, and
other assistance available to meet the
disaster related needs. The
Administrator of FEMA provides a
recommendation to the President and
also provides a copy of the Governor’s
request. In the event the information
required by law is not contained in the
request, the Governor’s request cannot
be processed and forwarded to the
White House. In the event the
Governor’s request for a major disaster
declaration or an emergency declaration
is not granted, the Governor may appeal
the decision.
Affected Public: State, local, or Tribal
Government.
Estimated Number of Respondents:
623.
Estimated Number of Responses: 356.
Estimated Total Annual Burden
Hours: 11,792.8.
The previously approved Total
Annual Burden Hours was 11,748
hours. Based on the final rule’s minor
increase in burden, the new estimated
Total Annual Burden Hours is 11,792.8
hours. This increase of 44.8 hours is
attributed to the additional fiscal
capacity information FEMA anticipates
States may provide to help evaluate the
need for a major disaster declaration
that authorizes IA.
Table A.12 provides estimates of
annualized cost to respondents for the
hour burdens for the collection of
information.
TABLE A.12—ESTIMATED ANNUALIZED BURDEN HOURS AND COSTS 63
Type of respondent
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State, Local or
Tribal Government.
VerDate Sep<11>2014
Form name/form
number
Number of
respondents
Request for Presidential Disaster
Declaration
Major Disaster
or Emergency/
FEMA Form
010–0–13.
21:09 Mar 20, 2019
Jkt 247001
Number of
responses per
respondent 64
623
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Average
burden per
response
(in hours)
.571
Fmt 4701
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Total annual
burden
(in hours)
9
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21MRR2
Average
hourly wage
rate 65
$79.22
Total annual
respondent
cost
$253,820.88
Federal Register / Vol. 84, No. 55 / Thursday, March 21, 2019 / Rules and Regulations
10661
TABLE A.12—ESTIMATED ANNUALIZED BURDEN HOURS AND COSTS 63—Continued
Type of respondent
State, Local or
Tribal Government.
Total ...............
Form name/form
number
Number of
respondents
Number of
responses per
respondent 64
Average
burden per response
(in hours)
Total annual
burden
(in hours)
Average
hourly wage
rate 65
Total annual
respondent
cost
Initial Data Gathering for Governor’s Request/
No Form.
623
.571
24.126
8,588.8
39.89
342,607.23
...............................
623
........................
........................
11,792.8
........................
596,428.11
Note: The ‘‘Avg. Hourly Wage Rate’’ for each respondent includes a 1.46 multiplier to reflect a fully-loaded wage rate.
Note: Numbers in the table are rounded up due to rounding in ROCIS. Also ‘‘Initial Data Gathering for Governor’s Request/No Form’’ total burden hours is rounded to 8,588.8 to align with Factors Considered When Evaluating a Governor’s Request for Individual Assistance for a Major
Disaster Final Rule.
Estimated Cost: $596,428.11.
Estimated Respondents’ Operation
and Maintenance Costs: FEMA does not
anticipate that there will be any annual
costs to respondents’ operations and
maintenance costs for technical
services.
Estimated Respondents’ Capital and
Start-Up Costs: There are no annual
start-up or capital costs.
Estimated Total Annual Cost to the
Federal Government: The cost to the
Federal government is $3,188,919.80.
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F. Privacy 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
63 Note: Numbers rounded due to rounding in
ROCIS.
64 Note: The number of responses per respondent
for entering in Request for Presidential Disaster
Declaration Major Disaster or Emergency/FEMA
Form 010–0–13 has been updated to 0.571. FEMA
recalculated this number to more accurately reflect
the change in the final rule. FEMA calculated 0.571
based on the previous supporting statement’s total
number of response hours, 3,195, divided by the
number of hours, 9.062, resulting in 356, and then
divided by 623.
65 Note: The ‘‘Avg. Hourly Wage Rate’’ for each
respondent includes a 1.46 multiplier to reflect a
fully-loaded wage rate.
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disclose any record which is contained
in a system of records except by
following specific procedures.
FEMA completed a Privacy Threshold
Analysis for this final rule. Any
information will be collected in existing
FEMA Forms 010–0–13 and 009–0–140
and will still only include the
Governor’s point of contact and general
office phone number as well as other
State specific and disaster specific
information of a nonpersonally-identifiable nature. The
information received through the form
is neither retrieved nor retrievable by
personally identifiable information (PII).
Any retrieval would be done by
utilizing State specific or disaster
specific information of a
non-identifiable nature. FEMA Form
010–0–13 is currently covered under the
DHS/FEMA/PIA–013 Grants
Management PIA. This rulemaking does
not impact FEMA’s collection of PII in
the disaster declarations process and
form and no System of Records Notice
is required at this time.
G. 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.
FEMA has reviewed this final rule
under Executive Order 13175 and has
determined that this 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
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Federal Government and Indian Tribes.
The disaster assistance granted by a
major disaster declaration addressed by
this final rule is provided to individuals
and families, and would not have tribal
implications.
Moreover, this rule finalizes revisions
to regulations intended to address a
State’s request for an IA declaration.
Although Section 1110 of SRIA
authorizes Indian Tribal governments to
request a declaration directly, SRIA
charged FEMA to implement that
authority separately by rulemaking.
FEMA is implementing Section 1110
through a separate process, which
involves extensive consultation with
Tribes, issuance of pilot guidance, see
82 FR 3016 (Jan. 10, 2017), and
eventually, regulations.
H. 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.
As we noted in the proposed rule,
FEMA has determined that this rule
does not have a 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, and
therefore does not have federalism
implications as defined by the Executive
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Order. The disaster assistance granted
by a major disaster declaration
addressed by this final rule is provided
to individuals and families, and would
not have federalism implications. No
commenters disagreed with our
determination.
I. Executive Order 11988, Floodplain
Management
Pursuant to Executive Order 11988, as
amended by Executive Order 13690,
‘‘each agency must provide leadership
and take action to reduce the risk of
flood loss and to minimize the impact
of floods on human safety, health and
welfare. In addition, each agency must
restore and preserve the natural and
beneficial values served by floodplains
in carrying out its responsibilities for (1)
acquiring, managing, and disposing of
Federal lands and facilities; (2)
providing Federally undertaken,
financed, or assisted construction and
improvements; and (3) conducting
Federal activities and programs affecting
land use, including but not limited to
water and related land resources
planning, regulating, and licensing
activities. In carrying out these
responsibilities, each agency must
evaluate the potential effects of any
actions it may take in a floodplain;
ensure that its planning programs and
budget requests reflect consideration of
flood hazards and floodplain
management; and prescribe procedures
to implement the policies and
requirements of the Executive Order.
Before promulgating any regulation,
an agency must determine whether the
proposed regulations will affect a
floodplain(s), and if so, the agency must
consider alternatives to avoid adverse
effects and incompatible development
in the floodplain(s). If the head of the
agency finds that the only practicable
alternative consistent with the law and
with the policy set forth in Executive
Order 11988 is to promulgate a
regulation that affects a floodplain(s),
the agency must, prior to promulgating
the regulation, design or modify the
regulation in order to minimize
potential harm to or within the
floodplain, consistent with the agency’s
floodplain management regulations and
prepare and circulate a notice
containing an explanation of why the
action is proposed to be located in the
floodplain.
The requirements of Executive Order
11988 apply in the context of the
provision of Federal financial assistance
relating to, among other things,
construction and property improvement
activities, as well as conducting Federal
programs affecting a floodplain(s). The
changes in this final rule will not have
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an effect on floodplain management.
This final rule revises the criteria that
FEMA considers when recommending
an area eligible for IA under a major
disaster declaration. A major disaster
declaration recommendation to the
President is an administrative action for
FEMA’s IA Program. When FEMA
undertakes specific actions in
administering IA that may have effects
on floodplain management (e.g.,
placement of manufactured housing
units on FEMA-constructed group sites;
permanent or semi-permanent housing
construction; Multi-Family Lease and
Repair; financial assistance for privately
owned roads and bridges), FEMA
follows the procedures set forth in 44
CFR part 9 to assure compliance with
this Executive Order. The notice that is
required by the E.O. is provided
separately at the time FEMA undertakes
the specific action.
J. Executive Order 11990, Protection of
Wetlands
Executive Order 11990, ‘‘Protection of
Wetlands,’’ 42 FR 26961, May 24, 1977,
sets forth that each agency must provide
leadership and take action to minimize
the destruction, loss or degradation of
wetlands, and to preserve and enhance
the natural and beneficial values of
wetlands in carrying out the agency’s
responsibilities for (1) acquiring,
managing, and disposing of Federal
lands and facilities; and (2) providing
Federally undertaken, financed, or
assisted construction and
improvements; and (3) conducting
Federal activities and programs affecting
land use, including but not limited to
water and related land resources
planning, regulating, and licensing
activities. Each agency, to the extent
permitted by law, must avoid
undertaking or providing assistance for
new construction located in wetlands
unless the head of the agency finds (1)
that there is no practicable alternative to
such construction, and (2) that the
proposed action includes all practicable
measures to minimize harm to wetlands
which may result from such use. In
making this finding the head of the
agency may take into account economic,
environmental and other pertinent
factors.
In carrying out the activities described
in Executive Order 11990, each agency
must consider factors relevant to a
proposal’s effect on the survival and
quality of the wetlands. Among these
factors are: Public health, safety, and
welfare, including water supply,
quality, recharge and discharge;
pollution; flood and storm hazards; and
sediment and erosion; maintenance of
natural systems, including conservation
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and long term productivity of existing
flora and fauna, species and habitat
diversity and stability, hydrologic
utility, fish, wildlife, timber, and food
and fiber resources; and other uses of
wetlands in the public interest,
including recreational, scientific, and
cultural uses.
The requirements of Executive Order
11990 apply in the context of the
provision of Federal financial assistance
relating to, among other things,
construction and property improvement
activities, as well as conducting Federal
programs affecting land use. The
changes in this final rule will not have
an effect on land use or wetlands. This
final rule revises the criteria that FEMA
considers when recommending an area
eligible for IA under a major disaster
declaration. A major disaster declaration
recommendation to the President is an
administrative action for FEMA’s IA
Program. When FEMA undertakes
specific actions in administering IA that
may have such effects (e.g., placement
of manufactured housing units on
FEMA-constructed group sites;
permanent or semi-permanent housing
construction; Multi-Family Lease and
Repair; financial assistance for privately
owned roads and bridges), FEMA
follows the procedures set forth in 44
CFR part 9 to assure compliance with
this Executive Order.
K. Executive Order 12898,
Environmental Justice
Under Executive Order 12898,
‘‘Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations,’’ 59 FR 7629, February 16,
1994, as amended by Executive Order
12948, 60 FR 6381, February 1, 1995,
FEMA incorporates environmental
justice into its policies and programs.
The Executive Order requires each
Federal agency to conduct its programs,
policies, and activities that substantially
affect human health or the environment
in a manner that ensures that those
programs, policies, and activities do not
have the effect of excluding persons
from participation in programs, denying
persons the benefits of programs, or
subjecting persons to discrimination
because of race, color, or national origin.
FEMA has incorporated environmental
justice into its programs, policies, and
activities, as well as this rulemaking.
This final rule contains provisions that
ensure that FEMA’s activities will not
have a disproportionately high or
adverse effect on human health or the
environment or subject persons to
discrimination because of race, color, or
national origin. This final rule adds a
provision specifically related to the
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demographics of a disaster impacted
population. FEMA is requesting
information relating to the
demographics of a disaster impacted
area because the demographics may
identify additional needs that require a
more robust community response and
might otherwise delay a community’s
ability to recover from a disaster.
No action that FEMA can anticipate
under this rule will have a
disproportionately high and adverse
human health or environmental effect
on any segment of the population.
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 has sent this rule to the
Congress and to GAO pursuant to the
CRA. 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 foreignbased enterprises in domestic and
export markets.
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List of Subjects in 44 CFR Part 206
Administrative practice and
procedure, Coastal zone, Community
facilities, Disaster assistance, Fire
prevention, Grant programs-housing and
community development, Housing,
Insurance, Intergovernmental relations,
Loan programs-housing and community
development, Natural resources,
Penalties, and Reporting and
recordkeeping requirements.
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1. The authority citation for part 206
continues to read as follows:
■
Authority: Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42
U.S.C. 5121 through 5207; Homeland
Security Act of 2002, 6 U.S.C. 101 et seq.;
Department of Homeland Security Delegation
9001.1; sec. 1105, Pub. L. 113–2, 127 Stat. 43
(42 U.S.C. 5189a note).
2. In § 206.48, revise paragraph (b) to
read as follows:
■
§ 206.48 Factors considered when
evaluating a Governor’s request for a major
disaster declaration.
L. Congressional Review of Agency
Rulemaking
For the reasons stated in the
preamble, the Federal Emergency
Management Agency amends 44 CFR
part 206, subpart B, as follows:
PART 206—FEDERAL DISASTER
ASSISTANCE
*
*
*
*
*
(b) Factors for the Individual
Assistance Program. The following
factors are used to evaluate the need for
supplemental Federal assistance to
individuals under the Stafford Act, as
Federal assistance may not supplant the
combined capabilities of a State, Tribal,
or local government. Federal Individual
Assistance, if authorized, is intended to
assist eligible individuals and families
when State, Tribal, and local
government resources and assistance
programs are overwhelmed. State fiscal
capacity (44 CFR 206.48(b)(1)(i)) and
uninsured home and personal property
losses (44 CFR 206.48(b)(2)) are the
principal factors that FEMA will
consider when evaluating the need for
supplemental Federal assistance under
the Individuals and Households
Program but FEMA will always consider
all relevant information submitted as
part of a declaration request. If the need
for supplemental Federal assistance
under the Individuals and Households
Program is not clear from the evaluation
of the principal factors, FEMA will turn
to the other factors to determine the
level of need.
(1) State fiscal capacity and resource
availability. FEMA will evaluate the
availability of State resources, and
where appropriate, any extraordinary
circumstances that contributed to the
absence of sufficient resources.
(i) Fiscal capacity (principal factor for
individuals and households program).
Fiscal capacity is a State’s potential
ability to raise revenue from its own
sources to respond to and recover from
a disaster. The following data points are
indicators of fiscal capacity.
(A) Total taxable resources (TTR) of
the State. TTR is the U.S. Department of
Treasury’s annual estimate of the
relative fiscal capacity of a State. A low
TTR may indicate a greater need for
supplemental Federal assistance than a
high TTR.
(B) Gross domestic product (GDP) by
State. GDP by State is calculated by the
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10663
Bureau of Economic Analysis. GDP by
State may be used as an alternative or
supplemental evaluation method to
TTR.
(C) Per capita personal income by
local area. Per capita personal income
by local area is calculated by the Bureau
of Economic Analysis. A low per capita
personal income by local area may
indicate a greater need for supplemental
Federal assistance than a high per capita
personal income by local area.
(D) Other factors. Other limits on a
State’s treasury or ability to collect
funds may be considered.
(ii) Resource availability. Federal
disaster assistance under the Stafford
Act is intended to be supplemental in
nature, and is not a replacement for
State emergency relief programs,
services, and funds. FEMA evaluates the
availability of resources from State,
Tribal, and local governments as well as
non-governmental organizations and the
private sector.
(A) State, tribal, and local
government; non-governmental
organizations (NGO); and Private Sector
Activity. State, Tribal, and local
government, Non-Governmental
Organizations, and private sector
resources may offset the need for or
reveal an increased need for
supplemental Federal assistance. The
State may provide information regarding
the resources that have been and will be
committed to meet the needs of disaster
survivors such as housing programs,
resources provided through financial
and in-kind donations, and the
availability of affordable (as determined
by the U.S. Department of Urban and
Housing Development’s fair market rent
standards) rental housing within a
reasonable commuting distance of the
impacted area.
(B) Cumulative effect of recent
disasters. The cumulative effect of
recent disasters may affect the
availability of State, Tribal, local
government, NGO, and private sector
disaster recovery resources. The State
should provide information regarding
the disaster history within the last 24month period, particularly those
occurring within the current fiscal
cycle, including both Presidential
(public and individual assistance) and
gubernatorial disaster declarations.
(2) Uninsured home and personal
property losses (principal factor for
individuals and households program).
Uninsured home and personal property
losses may suggest a need for
supplemental Federal assistance. The
State may provide the following
preliminary damage assessment data:
(i) The cause of damage.
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(ii) The jurisdictions impacted and
concentration of damage.
(iii) The number of homes impacted
and degree of damage.
(iv) The estimated cost of assistance.
(v) The homeownership rate of
impacted homes.
(vi) The percentage of affected
households with sufficient insurance
coverage appropriate to the peril.
(vii) Other relevant preliminary
damage assessment data.
(3) Disaster impacted population
profile. The demographics of a disaster
impacted population may identify
additional needs that require a more
robust community response and delay a
community’s ability to recover from a
disaster. FEMA will consider
demographics of the impacted
communities for the following data
points as reported by the U.S. Census
Bureau or other Federal agencies:
(i) The percentage of the population
for whom poverty status is determined.
(ii) The percentage of the population
already receiving government assistance
such as Supplemental Security Income
and Supplemental Nutrition Assistance
Program benefits.
(iii) The pre-disaster unemployment
rate.
(iv) The percentage of the population
that is 65 years old and older.
(v) The percentage of the population
18 years old and younger.
(vi) The percentage of the population
with a disability.
(vii) The percentage of the population
who speak a language other than
English and speak English less than
‘‘very well.’’
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(viii) Any unique considerations
regarding American Indian and Alaskan
Native Tribal populations raised in the
State’s request for a major disaster
declaration that may not be reflected in
the data points referenced in paragraphs
(b)(3)(i) through (vii) of this section.
(4) Impact to community
infrastructure. The following impacts to
a community’s infrastructure may
adversely affect a population’s ability to
safely and securely reside within the
community.
(i) Life saving and life sustaining
services. The effects of a disaster may
cause disruptions to or increase the
demand for life-saving and lifesustaining services, necessitate a more
robust response, and may delay a
community’s ability to recover from a
disaster. The State may provide
information regarding the impact on life
saving and life sustaining services for a
period of greater than 72 hours. Such
services include but are not limited to
police, fire/EMS, hospital/medical,
sewage, and water treatment services.
(ii) Essential community services. The
effects of a disaster may cause
disruptions to or increase the demand
for essential community services and
delay a community’s ability to recover
from a disaster. The State may provide
information regarding the impact on
essential community services for a
period greater than 72 hours. Such
services include but are not limited to
schools, social services programs and
providers, child care, and eldercare.
(iii) Transportation infrastructure and
utilities. Transportation infrastructure or
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utility disruptions may render housing
uninhabitable or inaccessible. Such
conditions may also affect the delivery
of life sustaining commodities,
provision of emergency services, ability
to shelter in place, and efforts to
rebuild. The State may provide
information regarding the impact on
transportation infrastructure and
utilities for a period of greater than 72
hours.
(5) Casualties. The number of
individuals who are missing, injured, or
deceased due to a disaster may indicate
a heightened need for supplemental
Federal disaster assistance. The State
may report the number of missing,
injured, or deceased individuals.
(6) Disaster related unemployment.
The number of disaster survivors who
lost work or became unemployed due to
a disaster and who do not qualify for
standard unemployment insurance may
indicate a heightened need for
supplemental Federal assistance. This
usually includes the self-employed,
service industry workers, and seasonal
workers such as those employed in
tourism, fishing, or agriculture
industries. The State may provide an
estimate of the number of disaster
survivors impacted under this
paragraph as well as information
regarding major employers affected.
Peter Gaynor,
Deputy Administrator, Federal Emergency
Management Agency.
[FR Doc. 2019–05388 Filed 3–20–19; 8:45 am]
BILLING CODE 9111–23–P
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