Targeted News Service
WASHINGTON, Nov. 11 -- The Department of Homeland Security published the following Proposed Rule in the Federal Register from the Federal Emergency Management Agency:
Factors Considered When Evaluating a Governor's Request for Individual Assistance for a Major Disaster
A Proposed Rule by the Federal Emergency Management Agency on 11/12/2015
Publication Date: Thursday, November 12, 2015
Agencies:
Federal Emergency Management Agency
Department of Homeland Security
Dates: Comments must be received on or before January 11, 2016.
Comments Close: 01/11/2016
Entry Type: Proposed Rule
Action: Notice of proposed rulemaking.
Document Citation: 80 FR 70115
Page: 70115 -70143 (29 pages)
CFR: 44 CFR 206
Agency/Docket Number: Docket ID FEMA-2014-0005
RIN: 1660-AA83
Document Number: 2015-28570
Shorter URL: http://ift.tt/1HJVppo
Action
Notice Of Proposed Rulemaking.
Summary
FEMA proposes to revise its regulations to comply with Section 1109 of the Sandy Recovery Improvement Act of 2013 which 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.
Unified Agenda
Factors Considered When Evaluating a Governor's Request for Individual Assistance for a Major Disaster
1 action from August 2015
August 2015
NPRM
DATES:
Comments must be received on or before January 11, 2016.
ADDRESSES:
You may submit comments, identified by docket ID FEMA-2014-0005, by one of the following methods:
Federal eRulemaking Portal: http://ift.tt/MjwdZ7. Follow the instructions for submitting comments.
Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of Chief Counsel, 500 C Street SW., 8NE, Washington, DC 20472-3100.
Instructions: All submissions received must include the agency name and docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal e-Rulemaking Portal at http://ift.tt/MjwdZ7, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to read the Privacy Act notice that is available via the Privacy Notice link on the homepage of http://ift.tt/MjwdZ7.
Docket: For access to the docket to read background documents or comments received, go to the Federal eRulemaking Portal at http://ift.tt/MjwdZ7, click on "Advanced Search," then enter "FEMA-2014-0005" in the "By Docket ID" box, then select "FEMA" under "By Agency," and then click "Search." Submitted comments may also be inspected at the Office of Chief Counsel, Federal Emergency Management Agency, 500 C Street SW., 8NE, Washington, DC 20472-3100.
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-IA-Regulations@fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
We encourage you to participate in this rulemaking by submitting comments and related materials. We will consider all comments and material received during the comment period.
If you submit a comment, identify the agency name and the docket ID for this rulemaking, indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by electronic means, mail, or delivery to the address under the ADDRESSES section. Please submit your comments and material by only one means.
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal e-Rulemaking Portal at http://ift.tt/MjwdZ7, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to read the Privacy Act notice that is available via a link on the homepage of www.regulations.gov.
Viewing comments and documents: For access to the docket to read background documents or comments received, go to the Federal e-Rulemaking Portal at http://ift.tt/MjwdZ7. Background documents and submitted comments may also be inspected at the Office of Chief Counsel, Federal Emergency Management Agency, 500 C Street SW., 8NE, Washington, DC 20472-3100.
II. 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 President signed the Sandy Recovery Improvement Act of 2013 (SRIA) 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.
FEMA is proposing this 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 in the declaration process. FEMA is also proposing new factors on Fiscal Capacity and Resource Availability to provide additional context on potential disaster situations. The proposed rule would also satisfy the requirements outlined above in Section 1109 of SRIA.
2. Legal Authority
FEMA has authority for this proposed 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 proposed by this NPRM are intended to comply with Section 1109 of the Sandy Recovery Improvement Act of 2013. Public Law 113-2.
B. Summary of Major Provisions
FEMA proposed to revise 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 proposing to revise the current factors by providing additional clarity regarding the considerations FEMA evaluates when making a recommendation on whether Individual Assistance is warranted for a major disaster declaration. FEMA is proposing to revise 44 CFR 206.48 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. 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 declarations that authorize IA. No single data point or factor would determine on its own FEMA's ultimate recommendation nor would 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 specific in areas of the proposed rule so that FEMA does not limit Presidential discretion for declaring a major disaster declaration that authorized Individual Assistance because the parameters for a major disaster declaration can change from Administration to Administration. FEMA wants to ensure that we retain as much flexibility as possible so that we can conform to what the President wants in their disaster declaration recommendations. The proposed factors would not limit the President's discretion regarding major disaster declarations.
III. Background
A. The Federal Disaster Declaration Process
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 capacity to respond to a catastrophe varies from State to State. The initial decision on whether supplemental Federal assistance is necessary for a State responding to and recovering 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 capacities of the State and affected local governments, and (2) Federal assistance under the Stafford Act is necessary to supplement the efforts and available resources of the State, local governments, disaster relief organizations, and compensations by insurance for disaster-related losses. 44 CFR 206.36(b)(1)-(2).
The President's declaration may authorize various types of Federal assistance, falling under three main program areas: Public Assistance, Individual Assistance (IA), and Hazard Mitigation. Public Assistance provides supplemental Federal disaster grant assistance for debris removal, emergency protective measures, and the repair, replacement, or restoration of disaster-damaged, publicly owned facilities and the facilities of certain Private Non-Profit organizations. Individual Assistance provides financial or direct assistance to individuals and households who have been injured or whose property has been damaged or destroyed as a result of a Federally-declared disaster, and whose losses are not covered by insurance or other means. Additionally, a declaration authorizing Individual Assistance may authorize crisis counseling, disaster case management, disaster unemployment assistance, and disaster legal services. The Hazard Mitigation Grant Program provides grants to States and local governments to implement long term hazard mitigation measures after a major disaster declaration. FEMA's regulations at 44 CFR part 206 Subpart B describe the process leading to a Presidential declaration of a major disaster and the actions triggered by such a declaration. 44 CFR 206.31.
1. Preliminary Damage Assessment (PDA)
An initial step in the major disaster declaration process is the preliminary damage assessment (PDA). The PDA is used to determine the impact and magnitude of damage and the resulting unmet needs of individuals, businesses, the public sector, and the community as a whole. 44 CFR 206.33. When the State official responsible for disaster operations determines that an event may be beyond the capabilities of the State and local government to respond, the State will request that the FEMA Regional Administrator perform a joint FEMA-State PDA. 44 CFR 206.33(a). A damage assessment team is formed, which is composed of at least one representative of the Federal government and one representative of the State. 44 CFR 206.33(b). A local government representative familiar with the extent and location of damage in the community is also included if possible. 44 CFR 206.33(b). Other State and Federal agencies, and voluntary relief organizations may also be asked to participate, as needed. 44 CFR 206.33(b). A FEMA official will brief team members on damage criteria, the kind of information to be collected for the particular incident, and reporting requirements. 44 CFR 206.33(b).
The length of time required to conduct a PDA varies based upon the circumstances of the event. In large disasters, a major disaster declaration may be made prior to completing a PDA, in which case a damage assessment is conducted following the declaration in order to determine additional program needs. Damage that is widespread may take considerably longer to verify than damage in a concentrated area, as there is a greater geographic area to assess. Certain types of disasters such as flooding, or disasters affecting remote or isolated areas, may slow PDAs down due to limited accessibility. Depending on the above circumstances, a PDA can take anywhere from a day or two to a week or more. On average, a PDA can be completed within a week. At the close of the PDA, FEMA consults with State officials to discuss findings and reconcile any differences. 44 CFR 206.33(c).
2. State's Submission of Its Declaration Request to FEMA
During or at the close of the PDA, the Governor of a State submits the request for a major disaster declaration through the appropriate FEMA Regional Administrator. 44 CFR 206.36. The request must be submitted within 30 days of the occurrence of the incident in order to be considered. 44 CFR 206.36(a). The basis for the request 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 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). In addition, the request must include: Confirmation that the Governor has taken appropriate action under State law and directed the execution of the State emergency plan; an estimate of the amount and severity of damages and losses stating the impact of the disaster on the public and private sectors; information describing the nature and amount of State and local resources which have been or will be committed to alleviate the results of the disaster; preliminary estimates of the types and amount of supplementary Federal disaster assistance needed under the Stafford Act; and certification by the Governor that State and local government obligations and expenditures for the current disaster will comply with all applicable cost sharing requirements of the Stafford Act. 44 CFR 206.36(c)(1)-(5).
3. FEMA's Analysis and Recommendation to the President
Upon receipt of the Governor's request, the FEMA Regional Administrator provides written acknowledgement of the request. 44 CFR 206.37(a). Based on information obtained by the PDA and consultations with appropriate State and Federal officials and other interested parties, the FEMA Regional Administrator promptly prepares a summary of the PDA findings, analyzes the data, and submits a recommendation to FEMA Headquarters. 44 CFR 206.37(b). This Regional Analysis must include a discussion of State and local resources and capabilities and other assistance available to meet the major disaster-related needs. 44 CFR 206.37(b).
Based on all available information, the FEMA Administrator formulates a recommendation which is forwarded to the President with the Governor's request. 44 CFR 206.37(c). A recommendation for a major disaster declaration is based on a finding that the situation is or is not of such severity and magnitude as to be beyond the capabilities of the State and its local governments, and must include a determination of whether or not supplemental Federal assistance [2] under the Stafford Act is necessary and appropriate. 44 CFR 206.37(c)(1). In developing a recommendation, FEMA considers factors such as the amount and type of damages; the impact of damages on affected individuals, the State, and local governments; the available resources of the State and local governments, and other disaster relief organizations; the extent and type of insurance in effect to cover losses; assistance available from other Federal programs and other sources; imminent threats to public health and safety; recent disaster history in the State; hazard mitigation measures taken by the State or local governments, especially implementation of measures required as a result of previous major disaster declarations; and other factors pertinent to a given incident. 44 CFR 206.37(c)(1). When preparing its recommendation for Individual Assistance in particular, FEMA considers specific factors described in 44 CFR 206.48(b).
4. Approval or Denial of the Declaration Request
Upon completion of its recommendation, FEMA forwards it to the President along with the Governor's request. The Governor's request may result in either a Presidential declaration of a major disaster or an emergency, or denial of the Governor's request. 44 CFR 206.38(a). The Governor will be promptly notified by the FEMA Administrator of a declaration by the President that a major disaster exists, or that the Governor's request does not justify the use of the authorities of the Stafford Act. 44 CFR 206.39. A State may appeal a denial of declaration request within 30 days after the date of the letter denying the request. 44 CFR 206.46(a).
5. Types of Assistance Approved Under the Declaration Request
A major disaster declaration will include 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 supplementary Federal assistance. 44 CFR 206.40(a). A major disaster declaration may authorize all, or only particular types of, supplementary 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 psycho-educational 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 (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 need, 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.
B. Sandy Recovery Improvement Act of 2013
On January 29, 2013, the President signed the Sandy Recovery Improvement Act of 2013 (SRIA) 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 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 [3] under the Stafford Act. Pursuant to SRIA, this rulemaking must be completed by January 29, 2014. Although the necessary process to revise the factors is not yet complete, FEMA intends to complete this process as expeditiously as possible.
SRIA also authorized, among other things, the option for Federally recognized Indian Tribal governments to make a request directly to the President for a Federal emergency or major disaster declaration. FEMA will implement this provision of SRIA in a separate rulemaking.
C. FEMA's Outreach Efforts Required by the Sandy Recovery Improvement Act
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 with stakeholders, including meetings with the National Emergency Managers Association, the International Association of Emergency Managers, the National Advisory Council, FEMA regional offices, and Tribal governments (hereinafter "stakeholder group"). The stakeholder group had widespread participation from individuals involved in emergency management at the State, local, and tribal levels. These outreach efforts were conducted from February 2013 through May 2013 and consisted of in-person conferences and conference calls. During this outreach, a series of themes emerged from the members of the stakeholder group which are discussed below.
1. The Role of Voluntary, Faith, and Community Based Organizations During Disasters
Many in the stakeholder group felt that the consideration of services and benefits provided by voluntary, faith-based, and community-based organizations during a disaster should not continue to serve as an indicator for when supplemental Federal assistance is warranted. The stakeholders felt that voluntary, faith-based, and community-based organization involvement may not be available at the time of a disaster declaration and those organizations do not provide funding for the rebuilding or replacement of houses. FEMA currently considers, as an Individual Assistance factor, the extent to which voluntary agencies and State or local programs can meet the needs of disaster survivors. 44 CFR 206.48(b)(4). Voluntary, faith-based, and community-based organizations are often among the first to respond to an event. Following a disaster, voluntary, faith-based, and community-based organizations mobilize to provide immediate assistance such as food, clothing, shelter, cleaning supplies, comfort kits, first aid, and medical care, as well as services including coordinating donations, counseling, home repairs, and rebuilding. FEMA is proposing to continue consideration of the resources made available by such organizations as part of the new "Resource Availability" factor discussed below. FEMA recognizes that the resources provided by the voluntary, faith-based, and community-based organizations are typically not a long term recovery solution for a disaster affected community and that these organizations' financial capabilities are mostly donor-based and dependent on the economic climate. FEMA also believes that information on voluntary, faith-based, and community-based organizations is valuable because it can enhance the picture of disaster needs at a local, grass roots level and may either offset the need for, or reveal a need for, supplemental Federal assistance.
2. The Correlation Between the Population Size of a State and Its Capability To Recover
Several members of the stakeholder group discouraged FEMA from making a correlation between State population size and the capability of that State to recover. More specifically, multiple members of the stakeholder group expressed concern with the table in the current regulations which provides the average amount of Individual Assistance by State. See 206.48(b)(6). This table of averages does not set a threshold for recommending Individual Assistance, but was intended as guidance to States and voluntary agencies as they develop plans and programs to meet the needs of disaster survivors. 44 CFR 206.48(b)(6).
In developing this proposed rule, FEMA evaluated the utility of this table. FEMA determined that the table should be removed because it causes confusion among States, and may be viewed incorrectly as a threshold for whether a State should request Individual Assistance. In addition, the table is based on 1990 Census data, uses assistance information from 1994-1999, and is based on the previous iteration of the IHP which consisted of two separate programs: (1) The Temporary Housing Assistance Program and (2) the Individual and Family Grant Program. FEMA recognizes that there are many factors, including population, that contribute to a State's capability to respond to and recover from a disaster. FEMA is proposing several factors, discussed below, that will be used in evaluating State capability.
3. Issues With Widespread Damage and Contiguous States
Current 44 CFR 206.48(b)(1) notes that high concentrations of damages generally indicate a greater need for Federal assistance than widespread and scattered damages throughout a State. Stakeholders were concerned that the cost of widespread minimal damage across counties within a State may not be appropriately considered within the concentration of damage factor. The stakeholders wanted greater consideration to widespread events that are costly. FEMA recognizes that as a practical matter, widespread minimal damage spread across a larger geographic area, can overwhelm a State's capability to adequately respond to a disaster. Therefore, FEMA is proposing a factor, discussed below, that will evaluate the estimated cost of assistance for a State.
In events where disasters cross state lines, several emergency managers recommended that a major disaster declaration in one of the States should automatically trigger a major disaster declaration in the other affected State or States. The Stafford Act requires that a Governor's request for a major disaster declaration is 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. 42 U.S.C. 5170(a). FEMA's major disaster recommendation to the President is based on this same finding. 44 CFR 206.37(c). Each State has different capabilities to respond to, recover from, and mitigate the effects of a disaster. Moreover a disaster that crosses state lines may have differing impacts in the affected states. As such, it is unlikely that every event that impacts multiple states will necessarily be beyond each affected State's respective capabilities. Therefore, rather than recommending that the President automatically declare a disaster for each adjoining State affected by a disaster, FEMA proposes to 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 the Stafford Act.
4. Impact on Businesses
Multiple members of the stakeholder group asked FEMA to consider the impact of an incident on businesses. They believe that there is a direct correlation between impacts on businesses and a community's ability to recovery. As discussed below, FEMA is proposing revised IA factors that consider the impact to businesses because the impacts of a disaster on businesses may impede a community's ability to recover. Business losses alone, however, 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, some survivors may lose work or become unemployed due to a disaster, and may otherwise be ineligible for standard unemployment insurance benefits, thus showing an increased need for DUA.
In addition, the Small Business Administration (SBA) has separate statutory authority and programs, which may be available to assist businesses absent a Presidential major disaster declaration.
5. Decoupling Individual Assistance Programs
Several members of the stakeholder group suggested decoupling IA programs so that States can request specific IA programs instead of receiving a generic major disaster declaration that authorizes all IA programs. The manner in which IA programs are requested and authorized is outside the scope of this proposed rulemaking, which is to revise the factors which FEMA uses to evaluate the need for IA. However, current FEMA policy and practice already allows States to request all IA programs or specific IA programs, as appropriate, via its standardized form, Request for Presidential Disaster Declaration Major Disaster or Emergency, OMB Control Number 1660-0009. This form allows States to "check off" the IA programs they are requesting.
Indeed, there have been recent major disaster declarations, which authorized Disaster Unemployment Assistance and the Crisis Counseling Program, without the other IA programs. [4] These programs meet specific needs in the disaster-impacted community that may be unrelated to physical disaster damage. FEMA may consider recommending authorization of these programs when they are needed, even in the absence of authorization of the Individuals and Households Program, which is generally directly tied to physical disaster damage.
6. Impacts to Community
FEMA received comments from the stakeholder group suggesting that FEMA assess the impacts from a disaster to a community as a whole and not just consider the damage that occurred to individual houses and residences to determine the need for a major disaster declaration that authorizes IA and the specific IA programs required. FEMA is considering implementing this recommendation in the proposed factor described below entitled, "Impact to Community Infrastructure." FEMA believes that by reporting and examining community impacts instead of just individual residence impacts, FEMA and the State will have a better understanding of the overall impact of the disaster on the lives of individuals in the community and which IA programs would benefit disaster survivors. As discussed in more detail below, significant disruptions to important services such as transportation, schools, child care, eldercare, or police services are likely to impede recovery of that community and may be indicative of a heightened need for Federal assistance. In addition, such impacts may show a specific need for certain IA programs. For example, a community may have relatively low damage impacts to individual residences but a large amount of the community's infrastructure, such as schools or roads, may have been destroyed. Such impacts can be quite traumatic to the community and may suggest a need for specific IA programs such as the Crisis Counseling Program, but not necessarily the Individuals and Households Program. This information will assist FEMA in determining which IA programs to approve when granting a major disaster declaration.
7. Linking Individual Assistance Declarations With Public Assistance Estimated Cost Factor
Some members of the stakeholder group suggested aligning the financial indicators for IA and Public Assistance major disaster declarations. Currently, FEMA uses the following factors to evaluate the need for a Public Assistance major disaster declaration: Estimated cost of assistance, localized impacts, insurance coverage, hazard mitigation, recent multiple disasters, and programs of other Federal assistance. These factors are focused almost entirely on the impact of the event on State, local, and tribal governments, as well as certain private non-profit organizations. Members of the stakeholder group specifically identified the estimated cost of assistance factor as an approach that could be applied to IA. Under this factor, FEMA evaluates the estimated cost of Federal and non-federal public assistance against the statewide population to give a measure of the per capita impact within the State. 44 CFR 206.48(a)(1). That factor also establishes a $1 million threshold, based on the proposition that even the smallest population States have the capability to cover that level of public assistance infrastructure damage. Under FEMA's current regulations, there is no corresponding IA single indicator designed to evaluate the total cost of the disaster against the capability of a requesting State.
FEMA agrees with the comments received from emergency managers that the fiscal capacity of a State should be considered, but FEMA does not agree that the Public Assistance per capita indicator measure should be adopted for this purpose. Instead, as discussed below, FEMA proposes to use Total Taxable Resources and Gross Domestic Product by State as indicators of a State's fiscal capacity. For reasons discussed below, FEMA believes that these indicators, calculated by the U.S. Department of Treasury and the U.S. Commerce Department's Bureau of Economic Analysis (BEA), are more appropriate for the purposes of evaluating a State's fiscal capacity and its capability to meet the needs of individuals after an event. In addition to Total Taxable Resources and Gross Domestic Product by State, FEMA will consider the estimated cost of assistance and States would also have the ability to submit other information relevant to their fiscal capacity. FEMA's proposal of a fiscal capacity factor is discussed further below.
8. Thresholds
Some members of the stakeholder group indicated that they would like a specific "hard" threshold that indicates whether a State would be eligible to receive a major disaster declaration authorizing IA. The stakeholders felt that if there was an established threshold it would give States a clear idea of what level of damage and need the State must have before requesting assistance. The stakeholders believed that this 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.
Section 320 of the Stafford Act prohibits the denial of assistance to a geographic area based solely use of an arithmetic formula or a sliding scale based on income or population. 42 U.S.C. 5163. Although FEMA determined that any hard thresholds or inflexible formula would offend the principles of Section 320, [5] 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. As discussed throughout section IV, FEMA is proposing to use objective data from other Federal agencies to inform the overall assessment of the request, but, in keeping with the principles of Section 320 and recognizing that every disaster presents unique circumstances, this data alone will not be independently dispositive of whether FEMA recommends the need for IA.
9. Insurance
Under its current regulations, FEMA considers the amount of insurance coverage when evaluating the need for IA. 44 CFR 206.48(b)(5). FEMA received comments from the stakeholder group that said that this insurance coverage factor could be viewed as a penalty for people that have limited insurance or insurance that does not cover the specific disaster damage. FEMA does not agree that the insurance coverage factor penalizes disaster survivors for maintaining private homeowner's insurance or flood insurance. FEMA's programs are not loss indemnification programs. They do not ensure that an applicant is returned to their pre-disaster living condition nor can they cover all disaster-related losses. FEMA assistance is not as comprehensive as insurance coverage and the amount of money that an insurance company will provide as a settlement is typically greater than the dollar amount of assistance FEMA is legally permitted to provide. [6] FEMA takes insurance coverage into consideration under current 44 CFR 206.48(b)(5) because, under the Stafford Act, Federal disaster assistance cannot duplicate assistance from any source, including available insurance proceeds. When evaluating this factor, FEMA considers the type of disaster damage when determining whether there is insurance coverage. For disaster survivors with insurance that does not cover the specific disaster damage, their losses are considered uninsured.
Comments that FEMA received from the stakeholder group raised additional concern with the insurance data that FEMA uses because it can be inaccurate leading FEMA to under- or over-estimate the actual insurance penetration rates [7] within a community. FEMA currently utilizes National Flood Insurance Program (NFIP) data to determine insurance penetration rates for flood damages and Census data to determine homeowners' insurance coverage percentages. FEMA uses the percentage of owner-occupied homes with a mortgage based on Census data to determine an insurance penetration rate. FEMA assumes that a home with a mortgage would require home insurance coverage. FEMA is pursuing additional resources beyond NFIP and Census data to verify insurance penetration rates in order to have the most accurate insurance information available. FEMA is requesting that stakeholders and the public provide information and suggestions on potential sources of data for the most accurate insurance information. FEMA will consider suggestions during the development of the final rule.
10. Homes in Foreclosure
FEMA received comments from the stakeholder group related to homes in foreclosure. Some commenters stated that if an area with a high foreclosure rate is affected by a disaster, these foreclosed homes without an owner could be a greater burden to the State in the recovery process. FEMA considered this information and has preliminarily concluded that foreclosure data should not be specified in our evaluation factors. FEMA's IA programs do not provide any form of assistance for foreclosed homes. Repair assistance is available only for owner-occupied primary residences. As such, homes without an owner, or homes owned by a bank or other creditor would not be eligible for assistance. FEMA recognizes that high levels of foreclosure may be associated with economic difficulties in the affected area that could also negatively impact a community's ability to recover. However, FEMA believes other factors including poverty level, pre-disaster unemployment, and per capita personal income will be adequate indicators of economic health in most circumstances. If a State believes that homes in foreclosure will impact their capability to respond to the disaster, then the State may articulate this concern in the narrative portion of their declaration request. FEMA considers all relevant information provided in a State's request. 44 CFR 206.48.
11. Incentives for State Sponsored IA Programs
FEMA received comments from the stakeholder group stating that FEMA should provide incentives for States to have their own IA programs. Commenters stated that currently there is no consideration by FEMA of the disasters that are paid for by States and that States should not be penalized for having a program that assists its citizens during the time it takes for PDAs to be completed and a major disaster declaration authorized. FEMA agrees with the comments received from emergency managers that any efforts or programs to help citizens by a State should be considered. As discussed below in the "Planning After Prior Disasters" factor, FEMA proposes to include consideration of any planning and disaster relief programs a State establishes after a prior disaster because States are ultimately responsible for the well-being of their citizens and therefore should continuously evaluate and improve their disaster planning and relief programs based on lessons learned from previous disasters.
IV. Discussion of the Proposed Rule
This rule proposes to implement Section 1109 of SRIA, which requires FEMA to revise and update through rulemaking the Individual Assistance factors that are used to make a major disaster recommendation to the President. States are not required to provide information on every single factor listed below; the amount of information and data provided by each State is voluntary. However, the failure of a State to provide sufficient evidence that supplemental Federal assistance is necessary may result in a delay or possibly denial of a request for a major disaster declaration authorizing IA.
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 declarations that authorize IA. No single data point or factor would determine on its own FEMA's ultimate recommendation nor would any single factor necessarily affect the President's ultimate determination of whether a major disaster declaration authorizing IA is warranted. The proposed factors would not limit the President's discretion regarding major disaster declarations. FEMA reviewed the current factors and proposes to revise the current factors as follows.
A. 44 CFR 206.48--Paragraph (b)(1) State Fiscal Capacity and Resource Availability
FEMA is proposing to add at 44 CFR 206.48(b)(1) a factor entitled "State Fiscal Capacity and Resource Availability." The factors discussed below will be used by FEMA to evaluate a State's fiscal capacity to respond to a disaster as well as a State's available resources that can or have been committed to the disaster recovery process.
Fiscal Capacity. FEMA is proposing to evaluate a State's fiscal capacity to respond to and recover from a disaster in 44 CFR 206.48(b)(1)(i)(A)-(D). As discussed above, major disaster declarations are based upon a finding that the event is of such severity and magnitude that an effective response is beyond the capabilities of the State and affected local governments. Economic conditions of the State and affected local governments are clearly relevant to such a finding. However, the current regulations do not specifically include consideration of economic factors that could affect a State's capability to respond to or recover from a disaster. The proposed data points will help FEMA evaluate through independently calculated data whether a State is financially overwhelmed and unable to adequately respond to a disaster.
In addition, the United States Government Accountability Office (GAO) has suggested in multiple reports [8] that FEMA should incorporate States' fiscal capacity into its considerations for recommendations on disaster declarations to the President. The GAO reports have historically focused on fiscal capacity in FEMA's Public Assistance (PA) factor criteria, but changes to the PA criteria are outside the scope of this proposed rule. FEMA believes that the same principle applies to IA and PA, in that there is a need to assess a State's capacity to respond and recover from a disaster on its own when determining whether a major disaster declaration is warranted because Federal assistance is supplemental. Each State's capacity to respond and recover varies based on the circumstances of the disaster and the State's resources.
FEMA therefore proposes to include in 44 CFR 206.48(b)(1)(i)(A)-(C) the following three factors which will help evaluate a State and local jurisdiction's fiscal capacity: (A) The Total Taxable Resources (TTR) of the State, [9] (B) the Gross Domestic Product (GDP) by State, [10] (C) and the Per Capita Personal Income by Local Area. FEMA anticipates that these data points are readily available so that the State can discuss the data points in their request for a major disaster declaration. These publicly available data points, calculated by third-party government agencies, will allow FEMA to use standardized data to evaluate the economic capability of a State to effectively respond to an event.
The TTR of the State is an annual estimate of the relative fiscal capacity of a State, calculated by the U.S. Department of Treasury. TTR is defined as the unduplicated sum of the income flows produced within a State and the income flows, received by its residents, which a State could potentially tax. Calculation of the TTR is based on the GDP by State and additional accounting for resident earnings (wages, salaries, proprietor's income, etc.) from out-of-state, and resident dividend and interest income, as well as reduction for components that are presumed not taxable by States (employee and employer contributions to social insurance, federal indirect business taxes, federal civilian enterprises surplus/deficit). While TTR does not consider the actual fiscal choices made by the States, it does reflect their potential resources. Increases or decreases in TTR could indicate a strengthening or declining State economy for FEMA to consider when making a determination of the State's capacity. In summary, TTR is a flow concept, a comprehensive measure of all the income flows a State can potentially tax. TTR data is updated annually with a two year lag in the data.
The GDP by State is calculated by the BEA. [11] GDP by State estimates are measured as the sum of the distributions by industry and state of the components of gross domestic income which is the sum of the costs incurred and incomes earned in the production of GDP. Currently, TTR is only provided for the fifty States and the District of Columbia, [12] but not the territories; but GDP by State includes calculations for U.S. territories. [13] FEMA would use GDP by State primarily as an alternative fiscal capacity measure when the TTR of an area is unavailable. GDP by State may also be used by a State when their TTR is inaccurate due to the two year lag in TTR data. It is possible that a State's TTR data could be strong or trending upwards when in fact recent events may have caused a significant drop in the State fiscal capacity that is not yet reflected. This significant drop could be caused by, for instance, a previous disaster or a financial downturn. Additionally, if a disaster had a significant amount of damages and impacts, so much so that it could have a major impact on the real or actual TTR, FEMA would likely recommend granting IA, assuming the damages were not covered by home, property, or flood insurance and IA assistance would not duplicate benefits. TTR is one data point along with numerous others and will not on its own determine FEMA's recommendation. States also have the opportunity, as they have in the past, to tell FEMA how their economy is impacted by the disaster and previous disasters. The State may also present, and FEMA will evaluate, the GDP trend in addition to simply the TTR data.
Generally, FEMA assumes a State with a low TTR may have a lower threshold for requiring supplemental Federal assistance than a State with a higher TTR because its economy may not be as resilient against the increased financial burdens that are attributed to a large disaster. FEMA assumes territories with lower GDP may have a relatively lower threshold for requiring Federal assistance. While a higher TTR or GDP are indicative of greater fiscal capability, FEMA recognizes that there are disasters that are so large or so destructive as to overwhelm even the most fiscally capable States.
Per capita personal income by local area is calculated by the BEA, [14] and is the personal income of the residents of a given area divided by the resident population of the area. BEA uses the Census Bureau's annual midyear population estimates when computing the per capita personal income. FEMA anticipates using per capita personal income by local area as a measure to better assess the need for supplemental Federal assistance within each local area. A local area with a relatively low per capita personal income that is affected by a disaster may have a lower threshold for requiring supplemental Federal assistance. Local governments in areas with low per capita personal income will typically have lower tax bases and therefore may have fewer resources available to help local residents impacted by a disaster, which may indicate a lower threshold for requiring supplemental Federal assistance. Per capita personal income by local area when considered holistically with TTR (and when appropriate GDP by State) will help to identify areas of concentrated need at the micro local area and individual level in addition to the macro State level.
FEMA also proposes to include at 44 CFR 206.48(b)(1)(i)(D) a factor entitled "Other Factors." "Other Factors" is included to explicitly prompt the State to raise and discuss any other additional factors related to the State's fiscal capacity, i.e., burdens on a State treasury or a State's inability to collect funds. This factor will encourage a State to provide an explanation of a State's fiscal capacity that might not be captured or accurately reflected in the above factors. A State may have an extraordinary fiscal circumstance that is not reflected in the above factors and FEMA encourages the State to discuss the circumstances. For example, a hurricane may cause extensive damage in a coastal area and negatively impact tourism, which in turn, will have a negative impact on the tax base and fiscal capacity.
Resource Availability. FEMA proposes to include at 44 CFR 206.48(b)(1)(ii) a factor entitled "Resource Availability." Federal disaster assistance is supplemental in nature. FEMA's current regulations do not provide for the level of granularity and detail for FEMA to fully evaluate what and where the resource shortfalls are for a community and State that was affected by a disaster. "Resource Availability" will be an evaluation of the disaster assistance resources available from State, Tribal, and local governments as well as non-governmental organizations and the private sector so that FEMA can determine where, if any, gaps in resources exist. This factor also provides for consideration of those circumstances that may prevent a State from having sufficient resources to devote to the disaster recovery process. Supplemental Federal assistance under the Stafford Act is not warranted or necessary if a State's disaster-caused needs can be met by the available resources provided by a State, Tribal, local governments, non-governmental organizations, or the private sector.
FEMA is proposing to include at 44 CFR 206.48(b)(1)(ii)(A)-(D) four factors that will enable FEMA to fully evaluate a State's available resources post disaster: (1) State, Tribal, and local government, Non-Governmental Organizations (NGO), and Private Sector Activity; (2) Cumulative Effect of Recent Disasters; (3) State Services; and (4) Planning After Prior Disasters.
In current regulations, FEMA evaluates voluntary agency assistance to determine the need for assistance to individuals under the Stafford Act. 44 CFR 206.48(b)(4). While the current factor's title is "Voluntary agency assistance," both State and local government programs are included. FEMA is clarifying the inclusion of State and local government programs and is also expanding 44 CFR 206.48(b)(1)(ii)(A) to include private sector assistance. FEMA is also specifying Tribal government assistance, which was previously considered under local government programs. FEMA is proposing this as a factor because the level of assistance available to disaster survivors from State, Tribal, and local government, NGOs, and the private sector, may offset a need or reveal an increased need for supplemental assistance. 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.
This factor is an attempt to include the "Whole Community" approach to emergency management that reinforces the fact that FEMA is only one part of our nation's emergency management team; that FEMA must evaluate all of the resources of the collective team in preparing for, protecting against, responding to, recovering from and mitigating against all hazards; and that collectively we must meet the needs of the entire community in each of these areas. FEMA fully recognizes that a government-centric 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. Collectively, we can determine the best ways to organize and strengthen community assets, capacities, and interests. This allows us, as a nation, to expand our reach and deliver services more efficiently and cost effectively to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards. 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.
FEMA proposes to add a new factor "Cumulative Effect of Recent Disasters," at 44 CFR 206.48(b)(1)(ii)(B), to evaluate a State's disaster history, both Presidential (public and individual assistance) and gubernatorial disaster declarations, for the previous 24-month period. FEMA is particularly interested in information from a State highlighting any disasters that have occurred within the State's current budget cycle. FEMA is proposing this as a factor because multiple disasters in a 24-month period, and particularly within one State budget cycle, 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. In addition, pursuant to FEMA's regulations, at 44 CFR 206.48(a)(5), in evaluating the need for assistance under the Public Assistance program, FEMA considers the disaster history of the State for the last 12-month period. FEMA is requesting 24 months of State disaster history data because it closely aligns with the length of time for IA programs. For example, IHP assistance is available for 18 months and DCMP is available for 24 months from the date of a major disaster declaration. A State with an open disaster period that is affected by another disaster might have various unique issues related to recovery and the compounded effects of two disasters within a short amount of time. Review of disaster activity occurring within the past 24 months will help to capture any ongoing disaster activity where individuals may still be receiving IHP assistance. If the length of time were limited to only 12 months, this factor might not identify that the State currently has an open major disaster declaration where individuals are potentially still receiving FEMA IA assistance. This time period will also align with most State government fiscal cycles, which are typically one or two years. An unanticipated number of disasters within a fiscal cycle may contribute to budget shortfalls that may render a State less able to respond to an event.
FEMA is proposing a new factor, "State Services," at 44 CFR 206.48(b)(1)(ii)(C). Under this factor, FEMA would evaluate information regarding any circumstances that prevent a State from having the resources to provide sufficient services to its citizens. FEMA strongly believes that it is important for a State to have pre-identified funding sources or sufficient disaster relief funds or programs that can be utilized to assist its citizens after a disaster. A State requesting a major disaster declaration should address the reasons why the State does not have sufficient funds, or why the funding sources are insufficient to meet the needs of its citizens.
Finally, under the "Resource Availability" factor, FEMA is proposing to consider a State's "Planning After Prior Disasters," at 44 CFR 206.48(b)(1)(ii)(D). Federal disaster assistance is supplemental and is not intended to take the place of State disaster assistance programs. States are strongly encouraged to develop and continuously improve their own disaster assistance programs. For this factor, States should identify any new and existing individual assistance programs as well as any improvements to existing individual assistance programs made as a result of previous disasters. States that continually fail to address limitations or shortfalls identified by FEMA or the State after previous events will receive negative consideration under this factor. FEMA is proposing this as a factor because States are ultimately responsible for the well-being of their citizens and therefore should continuously evaluate and improve their disaster planning and relief programs based on lessons learned from previous disasters. B. 44 CFR 206.48--Paragraph (b)(2) Uninsured Home and Personal Property Losses
Under FEMA's current regulations, FEMA evaluates the concentration of damages to individuals. 44 CFR 206.48(b)(1). FEMA also considers the amount of insurance coverage pursuant to 44 CFR 206.48(b)(5). FEMA is proposing to incorporate both of the current factors, as well as additional information collected during the PDA process, into a new factor entitled "Uninsured Home and Personal Property Losses" in a new 44 CFR 206.48(b)(2). As described above in section (III)(A)(1) of the Background section, FEMA and the State participate in the joint PDA process, which includes an examination of the extent of damage to individual residences. The PDA data points help to illustrate the extent of damage that a community has sustained and help FEMA estimate the probable grant assistance under the Individuals and Households Program. The proposed data points save FEMA time when evaluating a major disaster declaration request because the requested data has already been evaluated and validated by FEMA during the joint PDA process. FEMA currently collects this information via the joint PDA process and uses them when evaluating requests for major disaster declaration. [15] This proposed factor will more accurately describe the information collected and evaluated during joint PDAs.
The first proposed data point is the cause of damage in a new paragraph 44 CFR 206.48(b)(2)(i). FEMA is requesting this information in part because it is directly relates to insurance coverage. The cause of disaster damage refers to the peril that caused the disaster damage such as a tornado or wind driven rain. Insurance policies typically only cover damage resulting from a specific peril or perils. FEMA is legally prohibited from duplicating insurance proceeds when providing disaster assistance and must know the level of insurance coverage and the cause of the damage to estimate the potential amount of Federal IA available.
The second proposed data point is information on the jurisdictions impacted and the concentration of damages in a new paragraph 44 CFR 206.48(b)(2)(ii). FEMA is requesting this information because it will highlight the counties within a State that may require IA as well as whether the damages were in one concentrated area of the State or widespread. This information will be gathered during the PDA process by either the damage assessment teams or via geographic information system (GIS) data. IA is typically authorized based on county or parish jurisdictional boundaries.
The third proposed data point is the number of homes impacted and degree of damage in a new paragraph 44 CFR 206.48(b)(2)(iii). Degree of damage refers to the extent of disaster damage and its impact on the habitability of a home. FEMA is requesting this information because it illustrates how a community was affected and what types and the extent of IA that may be needed for the community. This information is typically given at both the county or parish jurisdictional level and the State wide level.
The fourth proposed data point is the estimated cost of assistance in a new paragraph 44 CFR 206.48(b)(2)(iv). The estimated cost of assistance is typically generated by the joint FEMA-State PDA and is already currently collected in FEMA's current declarations process. The estimated cost of damage will help FEMA gather information about the cost of a disaster and the potential amount of FEMA assistance that would be awarded. This data point is often determined using information obtained from the other data points outlined in this factor. This data point is important because it will capture the probable grant assistance that will be awarded for personal property in addition to grant assistance for housing.
The fifth proposed data point is information on the homeownership rate of impacted homes in a new paragraph 44 CFR 206.48(b)(2)(v). This factor is an estimated rate of the homeownership of impacted homes in the disaster-affected area. FEMA may provide assistance for real property repair or replacement to homeowners for their primary residence and rental assistance to homeowners or renters; therefore, it is important to know homeownership rates in order to estimate probable assistance.
Editor's note: For the full-text of this document, click this link or copy it into your browser: http://ift.tt/1HJVqJR
Dated: October 29, 2015.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2015-28570 Filed 11-10-15; 8:45 am]
BILLING CODE 9111-23-P
[*Federal RegisterBF 2015-11-11]
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