Cost of Assistance Estimates in the Disaster Declaration Process for the Public Assistance Program, 80719-80745 [2020-27094]
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Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Proposed Rules
raised. The comment period is extended
until February 12, 2021.
electronic mail to dhsdeskofficer@
omb.eop.gov.
Carolyn Hoskinson,
Director, Office of Resource Conservation and
Recovery.
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2020–27360 Filed 12–11–20; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 206
[Docket ID FEMA–2020–0038]
RIN 1660–AA99
Cost of Assistance Estimates in the
Disaster Declaration Process for the
Public Assistance Program
Federal Emergency
Management Agency, Department of
Homeland Security (DHS).
ACTION: Notice of proposed rulemaking.
AGENCY:
The Federal Emergency
Management Agency (FEMA) is
proposing a rule to substantively revise
the ‘‘Estimated cost of the assistance’’
disaster declaration factor that FEMA
uses to review a Governor’s request for
a major disaster under the Public
Assistance Program. FEMA proposes
revisions to this factor to more
accurately assess the disaster response
capabilities of the 50 States, the District
of Columbia, and the U.S. territories
(States), and to respond to the direction
of Congress in the Disaster Recovery
Reform Act of 2018, which requires
FEMA to review its disaster declaration
factors and update them via rulemaking,
as appropriate.
DATES: All comments must be submitted
by February 12, 2021.
ADDRESSES: You may submit comments
on this proposed rule, identified by
Docket ID FEMA–2020–0038, by the
following method:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Comments on the proposed
information collections included in this
proposed rule should be submitted both
to FEMA, as indicated above, and to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget. Comments should be identified
by the appropriate OMB Control
Number(s), addressed to the Desk
Officer for the Department of Homeland
Security, Federal Emergency
Management Agency, and sent via
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SUMMARY:
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Tod
Wells, Deputy Director of Public
Assistance, Federal Emergency
Management Agency, 500 C Street SW,
Washington, DC 20472, 202–646–3936,
fema-recovery-pa-policy@fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
I. Public Participation
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 https://www.regulations.gov,
and will include any personal
information you provide. Therefore,
submitting this information makes it
public. You may wish to read the
Privacy and Security Notice that is
available via a link on the homepage of
https://www.regulations.gov.
Viewing comments and documents:
For access to the docket to read
supporting documents and comments
received, go to the Federal eRulemaking Portal at https://
www.regulations.gov. Background
documents and submitted comments
may also be inspected at FEMA, Office
of Chief Counsel, 500 C Street SW,
Washington, DC 20472–3100.
II. Executive Summary
Pursuant to 44 CFR 206.48(a), FEMA
considers several factors when
determining whether to recommend that
the President declare a major disaster
authorizing the Public Assistance (PA)
program.1 FEMA proposes to amend the
factor in 44 CFR 206.48(a)(1) for
‘‘estimated cost of the assistance,’’ to
1 Under section 401 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act
(Stafford Act) (42 U.S.C. 5170), the President may
declare that a major disaster exists after finding,
upon request by a State governor, that such disaster
is beyond the capabilities of the State and affected
local governments, and that Federal assistance is
needed. FEMA receives the governor’s request and
makes a recommendation to the President whether
such a declaration is warranted. See 44 CFR 206.37.
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raise the per capita indicator and the
minimum threshold.2
Since 1986, FEMA has evaluated the
estimated cost of Federal and nonFederal public assistance against the
statewide population and used a per
capita dollar amount (set at $1 in 1986)
as an indicator that a disaster may
warrant Federal assistance. The per
capita indicator remained at $1 until
1999, when the Agency began adjusting
the indicator for inflation in 1999 and
annually thereafter.3 Also in 1999,
FEMA established a $1 million
minimum threshold, meaning it would
not recommend that the President
authorize the PA program unless there
was at least $1 million in damages
resulting from the disaster and within
the proposed area for Public Assistance.
At the time, FEMA believed $1 million
was a level of damage from which even
the least populous States could recover
with their own resources. FEMA has
never increased the $1 million
threshold. Additionally, FEMA also
considers impacts at the local level and
recent disasters in the 12 months prior
to a declaration request to evaluate the
impact to the State or locality.
In the Disaster Recovery Reform Act
of 2018 (DRRA), Congress directed
FEMA to give greater consideration to
the recent multiple disasters and
localized impacts factors when
evaluating a request for a major
disaster.4 Congress also directed FEMA
to generally review the factors it
considers when considering a request
for a major disaster, specifically the
estimated cost of assistance factor, and
to update the factors through
rulemaking, as appropriate.5
The lack of increases to the per capita
indicator from 1986 to 1999 has
undercut the value of this factor as an
indicator of State capacity given the 51
percent reduction in purchasing power
during that time.6 In addition, a State
2 See 44 CFR 206.48(a). Other factors include:
Insurance coverage in force, hazard mitigation, and
other Federal assistance programs. Id.
3 At the time of drafting this proposed rule, the
indicator was $1.50 in fiscal year 2019. See FEMA,
Notice of Adjustment of Statewide per Capita
Impact Indicator, 83 FR 53279 (Oct. 22, 2018).
4 Sec. 1232 of Public Law 115–254, 132 Stat. 3460
(Oct. 5, 2018). However, as discussed below, FEMA
does not propose to substantively amend 44 CFR
206.48(a)(2) because that factor is already
sufficiently flexible to address the requirements of
section 1232 of the DRRA.
5 Sec. 1239 of Public Law 115–254, 132 Stat. 3466
(Oct. 5, 2018).
6 April 1986 CPI–U was 108.6 and January 1999
CPI–U was 164.3. (164.3¥108.6)/108.6 = 51.29%.
See Bureau of Labor Statistics, U.S. Department of
Labor, ‘‘Consumer Price Index, Archived Consumer
Price Index Supplemental Files’’: Historical CPI–U,
November 2019, (available for download at https://
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fiscal capacity factor pegged to $1 per
person in 1986 does not capture more
sophisticated measurements of fiscal
capacity available through consideration
of a State’s total taxable resources.
Accordingly, the current per capita
indicator and minimum threshold do
not provide an accurate measure of
States’ capabilities to respond to
disasters.
With respect to the minimum
threshold, while FEMA determined in
1999 that every State could handle at
least $1 million in damages with their
own resources, that figure has also not
increased with inflation or rising State
budgets and expenditures.7 As a result,
FEMA may recommend that the
President declare major disaster
declarations for incidents that, with
more accurate assessment, would be
found to be well within a State’s
financial capabilities to respond to on
its own. FEMA proposes to adjust these
factors so that it may more closely
adhere to the law which authorizes
Federal disaster assistance only when
an event ‘‘is beyond the capabilities’’ of
the State and affected local
governments.8
FEMA proposes to increase the per
capita indicator to account for increases
in inflation from 1986 to 1999, and to
adjust the individual States’ indicators
by their total taxable resources (TTR).
These changes will allow FEMA to more
accurately gauge a State’s fiscal capacity
by accounting for taxable resources
other than the State’s population, such
as business income, undistributed
corporate profits, and out-of-state
residents. FEMA also proposes to
increase the minimum threshold by
accounting for inflation from 1999 to
2019, and annually thereafter.
FEMA also proposes to use the U.S.
Census Bureau’s annual population
estimates produced under the
Population Estimates Program (PEP)
instead of the decennial census
population data produced every 10
years, which FEMA currently uses to
calculate each State’s Cost of Assistance
(COA) Indicator. By increasing the per
capita indicator and the minimum
threshold, and using more current
population data, FEMA’s
www.bls.gov/cpi/tables/supplemental-files/
home.htm).
7 See Government Accountability Office (GAO),
Federal Disaster Assistance: Improved Criteria
Needed to Assess Eligibility and a Jurisdiction’s
Capability to Respond and Recover On Its Own,
GAO–12–838 (2012); Department of Homeland
Security (DHS), Office of Inspector General (OIG),
Opportunities to Improve FEMA’s Public
Assistance Preliminary Damage Assessment
Process, OIG–12–79 (2012).
8 See section 401 of the Stafford Act (42 U.S.C.
5170).
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recommendation to the President will
be a better informed and more accurate
assessment of whether an incident
exceeds State capabilities. The resulting
reduction in disaster declarations for
smaller incidents will allow FEMA to
better focus its efforts and resources on
larger disasters without the
complications of reallocating resources
from multiple smaller-scale
commitments. Collectively, these
changes would provide a better
distribution of responsibilities between
the States and the Federal Government,
and will incentivize States to invest
more in response, recovery, and
mitigation capabilities, and lead to a
more resilient and prepared Nation.
With respect to the recent multiple
disasters and localized impacts factors,
FEMA proposes not to substantively
amend 44 CFR 206.48(a)(2) and (5). As
is discussed below, these factors are
already sufficiently flexible to address
the requirements of section 1232 of the
DRRA. FEMA also does not propose at
this time to substantively amend the
other declaration factors at 44 CFR
206.48(a)(3) (‘‘Insurance coverage in
force’’), (4) (‘‘Hazard mitigation’’), and
(6) (‘‘Programs of other Federal
assistance’’) because they already
provide adequate consideration of
important information for FEMA’s
assessment of a State’s capabilities to
respond to an event, while also
providing sufficient flexibility for FEMA
to account for a variety of circumstances
across the States.
Importantly, this proposed rule will
not affect FEMA’s recommendations on
direct requests for a major disaster
declaration received from Tribal
governments. For direct requests from
Tribal governments, FEMA relies on the
Tribal Declarations Pilot Guidance and
criteria in that guidance instead of 44
CFR 206.48.9
FEMA also proposes minor technical
and corresponding grammatical changes
to 44 CFR 206.48 to ensure consistent
language between the Public Assistance
declaration factors in 44 CFR 206.48(a)
and the Individual Assistance factors in
44 CFR 206.48(b).
III. Background
The Disaster Relief Act of 1974,10
which was amended and renamed the
Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Stafford Act)
9 See FEMA, Tribal Declarations Pilot Guidance,
available at: https://www.fema.gov/tribaldeclarations-pilot-guidance. Notice of availability
published at 82 FR 3016 (Jan. 10, 2017).
10 Disaster Relief Act of 1974, Public Law 93–288
(1974).
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in 1988,11 formally established the
foundation of the current disaster
assistance system. Generally, FEMA
coordinates the Federal Government’s
response to major disasters and provides
various forms of financial and direct
assistance. One of the primary types of
financial assistance FEMA provides is
through the PA program.12 FEMA
provides financial assistance to States,
Tribes, Territories, and local
governments and certain private nonprofit entities for debris removal,13
emergency protective measures,14 and
the repair, restoration, and replacement
of infrastructure damaged or destroyed
by a disaster event.15 Repair and
replacement assistance, known as
‘‘permanent work,’’ helps jurisdictions
to repair or replace a wide variety of
infrastructure including buildings,
roads, bridges, and sewer and water
systems.
Before an affected jurisdiction can
receive funding through the PA
program, the President of the United
States must authorize it through a
declaration of a major disaster or
emergency.16 To obtain a declaration,
the Governor must make a request
through FEMA.17 Upon receipt, FEMA
is responsible for evaluating the
Governor’s request and providing a
recommendation to the President
regarding its disposition.18
When considering a jurisdiction’s
request for a major disaster declaration
authorizing the PA program, FEMA
considers all relevant information
including, but not limited to, six
specific factors.19 These specific factors
are:
1. Estimated cost of the assistance; 20
2. localized impacts; 21
11 Robert T. Stafford Disaster Relief and
Emergency Assistance Act, Public Law 100–707
(1988); Public Law 93–288 (1974), as amended; 42
U.S.C. 5121 et seq.
12 See 42 U.S.C. 5172.
13 See 44 CFR 206.224.
14 See 44 CFR 206.225.
15 See 44 CFR 206.226.
16 See 42 U.S.C. 5170b, 5192; see also 44 CFR
206.38 and 206.40.
17 42 U.S.C. 5170 & 5191. The Chief Executive of
an Indian Tribal government may also request a
major disaster declaration from the President under
the Tribal Declarations Pilot Guidance. FEMA,
Tribal Declarations Pilot Guidance, available at:
https://www.fema.gov/tribal-declarations-pilotguidance. Notice of availability published at 82 FR
3016 (Jan. 10, 2017). The factors FEMA considers
when reviewing a request submitted under the
Tribal Declarations Pilot Guidance are not a part of
the factors FEMA considers under 44 CFR 206.48(a)
and are outside the scope of this proposed
rulemaking.
18 See 44 CFR 206.37(c).
19 See 44 CFR 206.48(a).
20 Id. at § 206.48(a)(1).
21 Id. at § 206.48(a)(2).
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3. insurance coverage in force; 22
4. hazard mitigation; 23
5. recent multiple disasters; 24 and
6. programs of other Federal
assistance.25
FEMA evaluates every request with
regard to each of these delineated
factors, to the extent applicable.
However, there is a strong correlation
between the first factor, the estimated
cost of the assistance, and the likelihood
that FEMA will recommend that the
President issue a major disaster
declaration.
On October 5, 2018, the President
signed the Disaster Recovery Reform Act
(DRRA).26 Section 1239 of the DRRA
directs FEMA to review the factors it
considers when evaluating a request for
a major disaster declaration, specifically
the estimated cost of assistance factor,
and to initiate rulemaking to update the
declaration factors. Further, Section
1232 of the DRRA directs the FEMA
Administrator to give ‘‘greater
consideration’’ to the localized impacts
and recent multiple disasters factors and
to make corresponding adjustments to
FEMA policies and regulations. FEMA
now proposes to amend 44 CFR
206.48(a) to make changes to the
estimated cost of assistance factor. With
respect to the recent multiple disasters
and localized impacts factors, FEMA
evaluated the provision of the DRRA as
well as the current factors in regulation
and determined that the regulation is
sufficiently flexible to address the
DRRA requirements. On May 1, 2019,
FEMA issued guidance to Regional
Administrators directing them to
include in their recommendations
appropriate and fulsome information
regarding severe local impacts and the
history of recent multiple disasters.27 As
is discussed below, FEMA requests
comment on whether revisions to the
recent multiple disasters factor are
necessary.
A. Cost of Assistance Estimates
1. Creation of the Per Capita Indicator
Pursuant to 44 CFR 206.48(a)(1),
FEMA evaluates the estimated cost of
Federal and non-Federal public
assistance resulting from an incident to
inform its recommendation to the
President of whether an incident is of
22 Id.
at § 206.48(a)(3).
at § 206.48(a)(4).
24 See 44 CFR 206.48(a)(5).
25 Id. at § 206.48(a)(6).
26 Public Law 115–254, 132 Stat. 3438 (Oct. 5,
2018).
27 Memorandum for Regional Administrators
from Jeff Byard, Associate Administrator, Office of
Response and Recovery, Declaration Factors for
Local Impact and Recent Multiple Disasters (May 1,
2019).
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23 Id.
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such severity and magnitude that it is
beyond the capabilities of the State and
warrants Federal assistance under a
major disaster declaration. To make this
estimation, FEMA calculates the
estimated cost of assistance, generally
determined from joint FEMA-State
Preliminary Damage Assessments,
against the statewide population and if
the estimated per capita dollar amount
exceeds $1.50 (fiscal year (FY) 2019 per
capita indicator),28 FEMA considers this
an indicator that the incident is of such
a size and magnitude that it may
warrant Federal assistance for the State
under a major disaster declaration. In
other words, FEMA relies on the per
capita indicator to assess the financial
impact of an incident on a State and as
an indicator of whether the State is
overwhelmed and unable to effectively
respond to an event on its own.
FEMA publishes the updated per
capita indicator in the Federal Register
each year.29 FEMA multiplies the
indicator by the impacted State’s most
recent decennial population to
determine the amount of damage that a
State is expected to be able to
independently manage without the need
for supplemental Federal assistance (the
State Cost of Assistance (COA)
Indicator). For example, if an event
occurred in FY2019 in a State with a
2010 decennial census population of
1,500,000, FEMA would multiply that
population by the $1.50 indicator and
arrive at a State COA indicator of
$2,250,000.30 If the estimated cost of
assistance exceeds $2,250,000, FEMA
would consider this a strong indicator
that the State is overwhelmed and in
need of supplemental Federal
assistance.
Although FEMA considers every
request for a Presidential major disaster
declaration in light of each applicable
regulatory factor, the probability of an
incident being declared a major disaster
and that incident having exceeded the
State COA indicator in disaster damage
between 2005 and 2014 was over 80
percent (494 of 589 declared major
disasters).31 In other words, whether
damage assessments find an amount of
damage that meets or exceeds the State
COA indicator is highly correlated to
28 Since the drafting of this proposed rule, FEMA
has published the FY 2020 per capita indicator of
$1.53. However, for the purposes of this proposed
rule and analysis, FEMA will continue to discuss
the FY 2019 per capita of $1.50. See FEMA, Notice
of Adjustment of Statewide per Capita Impact
Indicator, 83 FR 53279 (Oct. 22, 2018).
29 See, e.g., 84 FR 55324 (Oct. 16, 2019).
30 Per Capita Impact Indicator and Project
Thresholds are published on FEMA’s website,
available at https://www.fema.gov/publicassistance-indicator-and-project-thresholds.
31 82 FR 4064, 4067 (Jan. 12, 2017).
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whether that State will ultimately
receive supplemental Federal assistance
for that incident.
FEMA began informally using the per
capita indicator in 1986 and set it at $1,
based on the 1983 nationwide per capita
personal income (PCPI), as $1 was
determined to be a reasonable portion of
PCPI for a State to contribute towards
the cost of a disaster. This amount also
correlated closely to about 0.1 percent of
established General Fund expenditures
by States. With the passage of time,
however, the indicator lost its relation
to both metrics upon which FEMA first
calculated it. When FEMA began using
a per capita indicator of $1 in 1986, the
most recent PCPI data available was
1983 PCPI, which was $11,687.32 By
1999, PCPI had risen 145 percent to
$28,675.33 Similarly, the per capita
indicator also fell short of keeping pace
with State general fund expenditures.
Between 1986 and 1999, the national
average increase in State general fund
expenditures was 146 percent.34 Despite
these increases in PCPI and State
general fund expenditures, FEMA did
not increase the per capita indicator
until 1999.
2. Changes to the Per Capita Indicator
and Establishment of the Minimum
Threshold
In 1999, FEMA issued a rule to codify
the per capita indicator at $1 and
establish, beginning in 1999, that FEMA
would annually adjust the per capita
indicator for inflation based on the
Consumer Price Index for All Urban
Consumers (CPI–U).35 This rule, along
with the failure to increase the indicator
over the years, removed any remaining
association the indicator had in the past
32 Disaster Assistance; Subpart C, the Declaration
Process and State Commitments, 51 FR 13333, Apr.
18, 1986, found at https://cdn.loc.gov/service/ll/
fedreg/fr051/fr051075/fr051075.pdf. Revisions were
made to the BEA 1983 PCPI after publication of the
proposed 1986 rule. FEMA used the PCPI of
$11,687 to maintain consistency with the data used
at the time of establishing the per capita indicator.
33 Per Capita Personal Income (PCPI) is calculated
annually by the United States Department of
Commerce’s Bureau of Economic Analysis. PCPI
data is available for download at https://
apps.bea.gov/regional/downloadzip.cfm: Download
‘‘Annual Personal Income by State’’ under ‘‘State
Personal Income Accounts.’’ Historical PCPI data
pulled from Excel sheet titled ‘‘SAINC1_ALL_
AREAS_1929_2018.’’
34 Compare National Association of State Budget
Officers (NASBO), 1988 State Expenditure Report,
with NASBO, 2000 State Expenditure Report
(available for download at: https://www.nasbo.org/
reports-data/state-expenditure-report/stateexpenditure-archives). Actual fiscal total US
expenditures were $880,252 million in 1999 (found
page 6 of the 2000 report) and $358,277 million in
1986 (found page 5 of the 1988 report). Calculation:
(($880,252¥$358,277)/$358,277) * 100 = 145.69
percent (146 percent rounded).
35 64 FR 47697 (Sept. 1, 1999).
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with PCPI or State general fund
expenditures.
In setting the per capita indicator in
1999, FEMA chose not to retroactively
account for inflation from 1986–1999.36
Accordingly, FEMA did not, and to this
date has not, accounted for the 51
percent increase in the CPI–U between
April of 1986 (when the per capita
indicator was first set at $1) and January
of 1999 (when FEMA proposed to adjust
the per capita indicator for inflation).37
Consequently, since 1999, the per capita
indicator has risen to its FY 2019 value
of $1.50, rather than $2.32, which
would be the value of the per capita
indicator had FEMA accounted for
inflation between 1986 and 1999.38
Also, in 1999, FEMA established,
through regulation, a $1 million
minimum threshold for any PA major
disaster, regardless of the calculated
State COA indicator.39 FEMA set the
threshold at $1 million because it
believed that even the lowest
population States could reasonably be
expected to cover this level of public
assistance damage.40 Importantly,
FEMA did not subject the $1 million
floor to adjustments for inflation. FEMA
has never raised the $1 million
threshold.
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3. Criticism of the Current Cost of
Assistance Estimates Factor
In recent years, the Government
Accountability Office (GAO),41 the
Department of Homeland Security
Office of Inspector General (DHS OIG),42
36 In 1998, FEMA considered adjusting the per
capita indicator to $1.51 to account for inflation
since 1986, but because of input from state
emergency management officials, FEMA decided
not to do so. See GAO, GAO 12–838.
37 See Historical CPI–U, April 2019 (available for
download at https://www.bls.gov/cpi/tables/
supplemental-files/home.htm). CPI–U in April 1986
was 108.6, CPI–U in January 1999 was 164.3.
(164.3¥108.6)/108.6 = 51.23%.
38 FEMA, Notice of Adjustment of Statewide per
Capita Impact Indicator, gave notice that the
statewide per capita impact indicator increased to
$1.50 for all disasters declared on or after October
1, 2018. 83 FR 53279 (Oct. 22, 2018). FEMA
calculated inflation from between 1986 and 1999 by
using the CPI–U from April 1986 to August 2018.
Calculation: ((August 2018 CPI–U (252.146)—April
1986 CPI–U (108.6))/April 1986 CPI–U (108.6)) + $1
= $2.32 (rounded). FEMA uses the latest available
month of CPI–U data to adjust the minimum
threshold and per capita indicator each fiscal year,
which is generally August CPI–U data. August 2018
CPI–U data was the latest available data when
FEMA established the FY2019 per capita indicator
and is used in this analysis to maintain consistency
with FEMA practice.
39 44 CFR 206.48(a)(1).
40 FEMA, Disaster Assistance; Factors Considered
When Evaluating a Governor’s Request for a Major
Disaster Declaration, 64 FR 47697 (Sept. 1, 1999).
41 See, e.g., GAO, Disaster Assistance:
Improvements Needed in Disaster Declaration
Criteria and Eligibility Assurance Procedures, GAO
01–837 (2001); See also, GAO, GAO–12–838 at 29.
42 See DHS OIG, OIG–12–79 at 3.
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and Congress,43 have criticized and
called for changes to the way FEMA
considers the estimated cost of
assistance for a disaster. For example,
the GAO found that the PA per capita
indicator is artificially low because it
does not reflect the rise in PCPI since
1986, or 13 years of inflation from 1986
to 1999, resulting in recommendations
to the President that do not
comprehensively assess a jurisdiction’s
capability to respond to and recover
from a disaster on its own.44 Similarly,
the DHS OIG found that roughly onethird of FEMA-State Preliminary
Damage Assessments used to estimate
the damage of a given event would not
have exceeded the States’ COA
indicators if the per capita indicator had
been indexed to the Consumer Price
Index since 1983.45 Both GAO and the
DHS OIG recommended that FEMA
develop and implement a methodology
that provides a better reflection of
current economic conditions and a more
comprehensive assessment of a
jurisdiction’s capability to respond and
recover from a disaster without Federal
assistance in order to decrease the
frequency of disaster declarations and
transfer some costs back to State and
local jurisdictions.46 Additionally, GAO
and the DHS OIG recommended that
FEMA supplement the per capita
indicator with more complete data on a
jurisdiction’s financial resources (i.e., its
tax base), such as TTR, in order to
obtain a more comprehensive
assessment of the jurisdiction’s ability
to respond to a disaster on its own.47
More recently, in section 1239 of the
DRRA, Congress directed FEMA to
review the factors it considers when
evaluating a request for a major disaster
declaration, specifically the estimated
cost of assistance factor, and to initiate
rulemaking to update the declaration
factors.48
43 See, e.g., S.1960, Fairness in Federal Disaster
Declarations Act of 2014, 113th Cong.; H.R. 3925,
Fairness in Federal Disaster Declarations Act of
2014, 113th Cong. (establishing criteria for FEMA
to incorporate in rulemaking with specific weighted
factors); H.R. 1859, Disaster Declaration
Improvement Act of 2013, 113th Cong. (requiring
new regulations concerning major disaster
declarations).
44 GAO, GAO–12–838 at 48.
45 DHS OIG, OIG–12–79 at 7.
46 GAO, GAO 12–838 at 48–49; See also DHS OIG,
OIG–12–79 at 7–8.
47 GAO, GAO 12–838 at 48–49; See also DHS OIG,
OIG–12–79 at 7–9.
48 See Public Law 115–254, 132 Stat. 3466 (Oct.
5, 2018).
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4. Problems With the Current Cost of
Assistance Estimates Factor
a. The Current Cost of Assistance
Estimates Factor No Longer Provides an
Accurate Measure of States’ Capabilities
To Respond to Disasters and Is No
Longer Reflective of Current Economic
Conditions
The lack of increases to the per capita
indicator from 1986 to 1999 undercut
the value of this factor as an indicator
of State capacity given the reduction in
purchasing power during that time.
Similarly, on the minimum threshold,
the lack of an increase since 1999 has
prevented this factor from keeping pace
with inflation, and rising State budgets
and resources. For context, the lowest
State budget for FY 2018 (Delaware) was
just over $4 billion,49 while its State
COA indicator for FY 2018 was just over
$1.31 million, or 0.032 percent of the
State’s budget. For comparison, in FY
1987, Delaware’s budget was just under
$1 billion,50 while its State COA
indicator was just under $595,000, or
0.063 percent of Delaware’s FY 1987
State budget. Similarly, the lowest TTR
amongst the States for FY 2016
(Vermont) was $36.1 billion,51 while
that State in FY 2016 was subject to the
$1 million minimum threshold, or
0.0028 percent of the State’s TTR.
Because its State COA indicator was less
than $1 million, Vermont would have
been subject to the $1 million threshold
in FY 2016. For comparison, Vermont’s
TTR in 1997 was $17.3 billion, while it
was subject to the $1 million minimum
threshold, or 0.0058 percent of its 1997
TTR. As shown from these figures, the
ratio of the per capita indicator and the
minimum threshold as a percentage of
State budgets and TTR has decreased
since FEMA began using the per capita
indicator and minimum threshold.
Moreover, as discussed in the
Regulatory Impact Analysis (RIA) found
in the docket of this rulemaking, since
1999, State gross domestic product
(GDP), total State expenditures, and
State TTR have increased, on a
nationwide average, by approximately
113 percent, 131 percent, and 130
49 Delaware General Assembly, Section 1, House
Substitute No. 1 for House Bill No. 275 of 2017. p.
60. Retrieved 11 June 2018 (available for download
at: https://delcode.delaware.gov/sessionlaws/ga149/
chp058.pdf).
50 NASBO, The State Expenditure Report, at 59
(July 1987) (available for download at: https://
www.nasbo.org/reports-data/state-expenditurereport/state-expenditure-archives).
51 U.S. Dept. of Treasury, 2018 Total Taxable
Resources Estimates (Sept. 2018), (available for
download at: https://home.treasury.gov/system/
files/226/TTR-tables-2018.pdf) (last accessed Feb.
19, 2019). 2016 is the most recently reported year
for TTR because there is a two-year lag in reporting.
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percent, respectively.52 In comparison,
since 1999, the per capita indicator and
the minimum threshold have risen 50
percent and 0 percent, respectively.
Consequently, FEMA is relying upon
per capita indicator and minimum
threshold factors that are no longer
adequate measures of a State’s
capability to respond to and recover
from a disaster. The result is a greater
likelihood that FEMA recommends
major disaster declarations for relatively
small incidents that a more accurate
assessment would find is within a
State’s financial capabilities to respond
to on its own. This result is counter to
the intent of the Stafford Act that
Federal assistance be supplemental, and
only necessary for disasters that exceed
a State’s capabilities. In light of the rise
in the costs to respond to and recover
from a disaster (construction costs in
particular), the lack of increases to the
per capita indicator has led to outcomes,
especially in less populous States,
where minor, concentrated
infrastructural damage (e.g., a dirt road
washout or damage to a single building)
would result in costs sufficient to meet
the per capita indicator and potentially
result in a disaster declaration. While
such incidents can certainly be
disruptive and expensive, it is
questionable whether such minor,
concentrated damage really overwhelms
a State and warrants a Presidential
major disaster declaration.
In sum, the per capita indicator and
minimum threshold are not reflective of
the change in economic conditions
since 1986 and 1999, respectively, and
are no longer adequate measures of the
States’ capabilities to respond to, and
recover from, incidents on their own.
The increases in State resources and
expenditures, and costs, generally,
without corresponding increases to the
per capita indicator and minimum
threshold, has created a situation where
Federal assistance is being provided for
incidents which are more appropriately
addressed by the States. This is counter
to the intent of the Stafford Act that
Federal assistance be provided only
where State and local capabilities are
overwhelmed.
b. The Current Cost of Assistance
Estimates Factor Undermines FEMA’s
Mission to Better Prepare the Nation for
Disasters by Disincentivizing States
From Investing in Disaster Mitigation
and Preparedness
The current per capita indicator and
minimum threshold act as disincentives
52 See Regulatory Impact Analysis (RIA) at 47.
The RIA is available in the public docket for this
proposed rule on regulations.gov.
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for States to invest in disaster response
and recovery capabilities for incidents
that should be within their capability to
respond. Emergency management is a
shared responsibility that is most
effective when disaster operations are
federally supported, State managed, and
locally executed, where Federal support
supplements, rather than supplants,
State and local efforts.53 In order to
build a more prepared and resilient
nation, it is essential that State, local,
Tribal, and Territorial governments
continually mitigate risk to hazards
posed by natural disasters, and build
their response and recovery capabilities
for future incidents, including the
creation of dedicated financial reserves
to respond to incidents.
While State and local governments
respond on their own to countless small
incidents that do not reach the level of
their current State COA indicator, there
is little incentive for States to build their
response and recovery capabilities
beyond their current State COA
indicator, since Federal assistance will
be provided at that point, even though
FEMA believes all States have financial
capabilities beyond their current State
COA indicator. For example, in a 2015
study of 10 States, the GAO found that
some States reported that they could
cover disaster costs without dedicated
disaster reserves because they generally
relied on the Federal Government to
fund most of the costs associated with
disaster response and recovery.54 GAO
ultimately concluded, in part, that given
the fiscal challenges facing all levels of
government, there may be increased
pressure to consider whether the current
State and Federal approach for
providing disaster assistance balances
responsibilities appropriately.55
The current situation is contrary to
two of FEMA’s primary objectives when
FEMA first formally established the
declaration factors in regulation in 1999:
To encourage States to establish their
own funded disaster assistance
programs and to incentivize States to
mitigate hazards and obtain insurance
coverage, where possible.56 Moreover,
the status quo undermines FEMA’s
mission to build a more prepared and
resilient nation by encouraging States to
rely on Federal assistance when they are
53 FEMA,
2018–2022 Strategic Plan at 8 (2018).
Budgeting for Disasters: Approaches to
Budgeting for Disasters in Selected States, GAO–
15–424, at 17 (March 2015).
55 Id. at 21.
56 See FEMA, Disaster Assistance; Factors
Considered When Evaluating a Governor’s Request
for a Major Disaster Declaration, 64 FR 47697 (Sept.
1, 1999). See also, FEMA, Disaster Assistance;
Factors Considered When Evaluating a Governor’s
Request for a Major Disaster Declaration, 64 FR
3910, 3911 (Apr. 26, 1999).
54 GAO,
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capable of being better prepared and
more resilient on their own.
c. The Current Cost of Assistance
Estimates Factor Undermines FEMA’s
Mission To Prepare for and Respond to
the Worst Disasters Without Delay
FEMA’s response and recovery
operations for numerous and
cumulative small disasters weaken its
ability to quickly respond to and aid
recovery efforts for larger, or concurrent
catastrophic disasters. FEMA’s incident
workforce is historically overcommitted to smaller disasters, leaving
a fraction of the Agency’s capacity to
prepare for, respond to, and recover
from complex catastrophes and national
security emergencies.57
The constraints imposed by numerous
and cumulative smaller disasters affect
the Agency’s readiness to support
disaster recovery operations without
unacceptable delays by consuming
FEMA staff time and resources that
would be better used for larger disasters.
For example, FEMA began the 2017
disaster season with nearly 30 percent
of its workforce deployed on numerous
smaller disasters across the country,
which then required extraordinary and
disruptive measures to reallocate and
redistribute employees to meet the
evolving requirements for hurricanes
Harvey, Irma, Maria, and the California
Wildfires.58 When Hurricane Harvey
made landfall in Texas, FEMA already
had 692 open disaster and emergency
declarations.59 Of that total, it had staff
deployed to 32 disasters across 19 field
offices.60 Additionally, in anticipation
of concurrent impacts from Hurricane
Irma, FEMA transitioned 9 active field
offices supporting 13 disasters to
regional offices prior to their anticipated
closure date. The respective FEMA
regional offices assumed responsibility
for supporting these operations once the
field offices transitioned, requiring
FEMA regional staff to aid recovery
efforts for these disasters in addition to
those disasters already overseen by the
Regional offices, as well as the daily
operations of the Regional offices.61 Of
the 298 staff that were demobilized from
the 9 field offices, FEMA redeployed
182 personnel to Hurricanes Harvey,
Irma, and Maria within 15 days, 223
57 FEMA, 2017 Hurricane Season FEMA AfterAction Report, at 23 (July 12, 2018).
58 Id.
59 This total includes emergency, major, and fire
management assistance declarations.
60 FEMA, 2017 Hurricane Season FEMA AfterAction Report, at 14.
61 Id. at 18.
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personnel within 30 days, and 242
personnel within 90 days.62
FEMA’s responsibilities require it to
have the capacity to respond in the
shortest possible time, under all
conditions, and to provide adequate
staffing and resources for long-term
recovery efforts for FEMA to
successfully accomplish its mission.
FEMA needs immediate operational
availability because complex, no-notice
or concurrent catastrophes do not
provide time to maximize readiness by
amassing a workforce and extracting
response resources from multiple
smaller-scale commitments. Moreover,
FEMA needs proper staffing, resources,
and focus for the long-term recovery
operations for large disasters so that
affected communities can be repaired
and rebuilt and return to normal day-today life as soon as possible. FEMA is
unable to properly meet these demands
when such a large portion of FEMA’s
staffing and focus are committed to
numerous and cumulative smaller
disasters that are actually, or should be,
within the States’ capabilities to handle
on their own.
As noted in FEMA’s After-Action
Report for the 2017 Hurricane Season,
for FEMA to be better positioned for
future challenges, State and territorial
governments should be able to respond
to and recover from smaller incidents
within their capabilities either
organically or through collaboration
with neighboring states and territories.
Strengthened States and territories, in
turn, allow FEMA to preserve sufficient
capacity to promptly respond to and
recover from large, complex, or
concurrent catastrophes and national
security emergencies.63 However, as
noted above, the current per capita
indicator and minimum threshold
disincentivize States from building their
capabilities to respond to smaller
incidents on their own, which
undermines FEMA’s ability to respond
to and recover from large, complex, or
concurrent large disasters, and weakens
the preparedness and resilience of the
Nation. FEMA could be faster and more
effective in planning for, responding to,
and recovering from large catastrophic
disasters if more of its workforce was
able to focus on such large disasters,
rather than being dispersed to numerous
smaller incidents more appropriately
handled by the States.
d. FEMA’s Use of the Decennial Census
as a Data Source for Population
FEMA has exclusively relied upon the
U.S. Census Bureau’s decennial census
62 Id.
63 Id.
at 23.
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reports on population to calculate State
COA indicators since the inception of
the per capita indicator.64 The decennial
census is a major governmental
undertaking that involves canvasing the
nation and is considered the mostaccurate account of the United States
population at the time it is conducted.65
However, the decennial survey is only
conducted every 10 years. Meanwhile,
populations constantly fluctuate due to
changing circumstances, such as
economic growth and downturn,
relocations driven by disaster, and other
factors. In many cases these fluctuations
are rather de minimis, but occasionally
they are not. In such instances, as more
time elapses after the most recently
completed decennial census survey, the
data from that decennial survey census
becomes a less and less accurate
measure of the current populations.
Therefore, the Census Bureau uses the
Population Estimates Program (PEP) to
update the populations since the
decennial Census was collected.
Illustrative of how drastically the
decennial census data can diverge from
the PEP estimates are the cases of
Nevada in 2000 and Puerto Rico in
2010, showing the greatest increase and
greatest decrease in population in those
periods, respectively. The 2000
decennial census reported the
population of Nevada to be 1,998,257.66
The 2001 PEP estimate for Nevada was
2,098,399. By 2009, the PEP estimate
had risen to 2,684,665.67 The 2010
64 The Census Bureau’s Population Estimates
Program (PEP) produces annual estimates for years
after the last published decennial census 2010, as
well as for past decades. Existing data series such
as births, deaths, Federal tax returns, Medicare
enrollment, and immigration, are used to update the
decennial census base counts. PEP estimates are
used in Federal funding allocations, in setting the
levels of national surveys, and in monitoring recent
demographic changes. U.S. Census Bureau,
Population and Housing Units Estimates:
Frequently Asked Questions (available at: https://
www.census.gov/programs-surveys/popest/about/
faq.html) (last accessed April 26, 2019).
65 Also known as the Population and Housing
Census, the Decennial U.S. Census counts every
resident in the United States. It is mandated by
Article I, Section 2 of the Constitution and takes
place every 10 years. The data collected by the
decennial census determine the number of seats
each state has in the U.S. House of Representatives
and is also used to distribute billions in Federal
funds to local communities. U.S. Census Bureau,
Our Surveys & Programs: Our Censuses (available
at https://www.census.gov/programs-surveys/
censuses.html) (last accessed June 26, 2019).
66 U.S. Census Bureau, Report No. DP–1, Profiles
of General Demographic Characteristics 2000:
Census of Population and Housing: Nevada (May
2001) (available for download at: https://
www2.census.gov/library/publications/2001/dec/
2kh32.pdf?#) (last accessed April 26, 2019).
67 See U.S. Census Bureau, Intercensal Estimates
of the Resident Population by Sex, Race and
Hispanic Origin for States and the United States:
April 1, 2000 to July 1, 2010 (available for
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decennial census reported Nevada’s
population at 2,700,551. Nevada’s
population grew by 35 percent between
2000 and 2010. Consequently, by 2010,
the 2000 decennial census data showed
a population for Nevada that was 35
percent lower than its 2010 population.
Comparatively, the 2009 Nevada PEP
estimate was off by only 0.6 percent
from the actual population reported in
the 2010 decennial survey. Similarly,
the 2010 decennial census reported the
population of Puerto Rico to be
3,725,789.68 However, by July of 2018,
the PEP estimate for Puerto Rico fell to
3,195,153, a 14 percent decrease.69
Despite the increasing divergence of
past decennial data from current
populations in out years, FEMA
continues to utilize solely decennial
data for purposes of calculating the
State COA indicators. Under this
approach, FEMA essentially locks-in the
population of each State until the new
decennial census data is collected,
analyzed, and reported. In monetary
terms, FEMA’s choice to rely solely on
decennial population values can impact
the State COA indicator for a State
whose population is quickly changing.
Nevada and Puerto Rico again provide
illustrative examples of this effect. In
2009, the PA per capita indicator was
$1.31.70 Based on the 2000 decennial
population that FEMA was still utilizing
in 2009, Nevada’s State COA indicator
in 2009 was $2,617,717.71 Even if FEMA
made no changes to the underlying State
COA indicator formula other than
substituting the 2009 PEP population
estimate for the 2000 decennial census
population estimate, Nevada’s State
COA indicator would have risen to
$3,516,911.72 That results in a
difference of $899,194. Thus, continuing
to utilize the static 2000 decennial
census figures in 2009 undervalues
Nevada’s State COA indicator by 34
percent. With respect to Puerto Rico,
based on the 2010 decennial census data
that FEMA currently utilizes, Puerto
Rico’s FY 2019 State COA indicator is
$5,588,684.73 Assuming no changes to
the underlying per capita indicator
download at: https://www.census.gov/data/tables/
time-series/demo/popest/intercensal-2000-2010state.html) (last accessed April 26, 2019).
68 Id.
69 U.S. Census Bureau, Puerto Rico
Commonwealth Population Totals and Components
of change: 2010–2018: Annual Estimates of the
Resident Population for the United States, Regions,
States, and Puerto Rico: April 2010 to July 2018
(available for download at: https//www.census.gov/
data/tables/time-series/demo/popest/2010s-totalpuerto-rico.html) (last accessed May 2, 2019).
70 73 FR 60303 (Oct. 10, 2008).
71 Calculation: 1,998,257 × $1.31 = $2,617,717.
72 Calculation: 2,684,665 × $1.31 = $3,516,911.
73 Calculation: 3,725,789 × $1.50 = $5,588,684.
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formula other than substituting 2018
PEP population estimate for the 2010
decennial census population estimate,
Puerto Rico’s State COA indicator
would be $4,792,730,74 or a difference
of $795,954. Thus, continuing to utilize
the 2010 decennial census figures in
2019 overvalues Puerto Rico’s State
COA indicator by 14 percent.
As shown above, FEMA’s reliance on
population data from the most recent
decennial survey can lead to an
imprecise assessment of a State’s
population. Using PEP estimates will
provide more up-to-date population
information and allow for more accurate
analysis.
B. Localized Impacts and Multiple
Disasters
In addition to estimating the cost of
assistance for a disaster, pursuant to 44
CFR 206.48(a)(1), FEMA also considers
a variety of other factors when
reviewing a request for a major disaster
declaration authorizing PA. While the
cost of assistance estimates factor is
often the greatest indicator of whether
FEMA will recommend that the
President issue a major disaster
declaration, that factor alone does not
automatically mean a denial if the State
does not meet it, nor does it guarantee
a declaration if the State does meet it.75
Rather, FEMA considers each factor to
better evaluate the unique
circumstances or needs created by each
incident.76
Two of the factors that FEMA
considers in reviewing a Governor’s
request are the recent disasters in an
area, and the localized impacts of a
disaster.77 With respect to recent
disasters, FEMA considers the disaster
history within the last 12-month period
to better evaluate the overall impact on
the State or locality. FEMA considers
declarations under the Stafford Act as
well as declarations by the Governor
and the extent to which the State has
spent its own funds. With respect to
localized impacts, FEMA considers the
impact of the incident at the county and
local government level, as well as
impacts at the American Indian and
Alaskan Native Tribal Government
levels, because at times there are
extraordinary concentrations of damages
that might overwhelm State capabilities
even if the State COA indicator is not
met, especially where critical facilities
are involved or where localized per
capita impacts might be extremely high.
For example, at times localized damage
3,195,153 × $1.50 = $4,792,730.
FR 47697. See also 64 FR 3911.
76 64 FR 47697. See also 64 FR 3911.
77 44 CFR 206.48(a)(2) & (5).
74 Calculation:
75 64
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may be in the tens or even hundreds of
dollars per capita, though the statewide
per capita impact was low.
In recent years, some members of
Congress have expressed concern that
the President has denied declarations
that were warranted because of other
recent disasters in the area and localized
impacts, particularly where the impact
is limited to the rural or sparsely
populated areas of a high population
State and the estimated costs of the
incident do not exceed the State COA
indicator. Section 1232 of the DRRA
requires the Administrator of FEMA to
give greater consideration to recent
multiple disasters or severe localized
impacts when making disaster
declaration recommendations to the
President, and to make corresponding
adjustments to FEMA’s policies and
regulations regarding such
consideration.
The existing recent multiple disasters
provision in FEMA’s regulations is
broad with respect to how much
consideration the Administrator gives to
disasters in the previous 12 months.
Consistent with that provision and with
FEMA’s May 1 guidance to Regional
Administrators, directing them to
include in their recommendations
appropriate and fulsome information
regarding severe local impacts and the
history of recent multiple disasters,78
FEMA is giving greater consideration to
these factors when making disaster
declaration recommendations.
Accordingly, FEMA does not propose to
substantively amend 44 CFR
206.48(a)(5), but requests comment on
whether the 12-month time limit
currently in place is sufficient to
address this factor as required by the
DRRA. Similarly, FEMA proposes not to
substantively amend the current
regulatory text for the localized impacts
factor in § 206.48(a)(2). FEMA believes
that the current regulatory text enables
FEMA to provide adequate
consideration of local impacts while
ensuring that FEMA does not over step
the statutory requirement that an event
be beyond State capability. FEMA also
does not propose at this time to
substantively amend the other
declaration factors at 44 CFR
206.48(a)(3) (‘‘Insurance coverage in
force’’), (4) (‘‘Hazard mitigation’’), and
(6) (‘‘Programs of other Federal
assistance’’). The current regulatory text
for these factors already provides for
adequate consideration of important
information for FEMA assessment of a
78 Memorandum for Regional Administrators
from Jeff Byard, Associate Administrator, Office of
Response and Recovery, Declaration Factors for
Local Impact and Recent Multiple Disasters (May 1,
2019).
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State’s capabilities to respond to an
event, while also providing sufficient
flexibility for FEMA to account for a
variety of circumstances across the
States. However, FEMA is proposing
minor technical and grammatical
changes to all of § 206.48(a).
IV. Discussion of the Proposed Rule
FEMA proposes to revise the
‘‘Estimated cost of the assistance’’ factor
in 44 CFR 206.48(a)(1) by increasing the
per capita indicator to account for
inflation from 1986 to 1999 and
adjusting the individual States’
indicators by their total taxable
resources (TTR),79 and by increasing the
minimum threshold by accounting for
inflation from 1999 to 2019, and
annually thereafter. These changes
would provide FEMA with a better
informed and more accurate assessment
of whether an incident has exceeded
State capabilities when it makes its
recommendations to the President;
incentivize States to invest more in
response, recovery, and mitigation
capabilities, which would provide a
better distribution of responsibilities
between the States and the Federal
Government and better overall national
preparedness for disasters; and the
associated reductions in declarations of
small incidents would allow FEMA to
better focus its efforts and resources on
large disasters without the
complications of reallocating resources
from multiple smaller-scale
commitments.
Additionally, FEMA also proposes to
use the U.S. Census Bureau’s annual
population estimates produced under
the Population Estimates Program (PEP)
instead of the decennial census
population data. Using the U.S. Census
Bureau’s annual PEP data instead of the
decennial census data would ensure a
more accurate assessment of an
individual State’s population, which
would better enable FEMA to achieve its
readiness and preparedness missions by
allowing FEMA to expend more
attention and resources on incidents
that actually exceed the States’
capabilities.
Importantly, this proposed rule does
not affect disaster declaration requests
received directly from Tribal
governments under the Tribal
79 As discussed more below, FEMA will not
adjust the District of Columbia’s per capita
indicator for TTR because of the unique tax and
Federal funding circumstances in the District, as
well as Congress’ control over the ability of the
District to manipulate its own revenues.
Additionally, FEMA will not adjust the territories’
per capita indicators for TTR because Treasury does
not report TTR for the territories.
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Declarations Pilot Guidance, or any of
the criteria contained in that guidance.80
FEMA also proposes minor technical
and corresponding grammatical changes
to the introductory paragraph of
§ 206.48 and all of paragraph (a) to
ensure consistent language throughout
this section.
A. 44 CFR 206.48(a)(1)—Adjusting the
Per Capita Indicator
1. Increasing the Per Capita Indicator To
Account for Inflation Between 1986 and
1999
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FEMA proposes to increase the per
capita indicator from a FY 2019 value of
$1.50,81 to $2.32 (rounded), to account
for increases to the Consumer Price
Index for All Urban Consumers (CPI–U)
between 1986 and 1999.82 FEMA would
continue to adjust the per capita
indicator annually to reflect changes in
the CPI–U, as is current practice. This
would establish the baseline per capita
indicator which FEMA would further
adjust for each State, as described
below.
The CPI–U is calculated and
published by the U.S. Department of
Labor, Bureau of Labor Statistics,83 and
uses the period of 1982 to 1984 as the
base level where the CPI–U = 100.
Current FEMA practice is to update the
per capita indicator each fiscal year
using the latest available month of CPI–
U data. Since the per capita indicator is
reported for the fiscal year and is
published each October, the latest
available CPI–U data is August data
published in September each year. To
maintain consistency with how FEMA
updates the per capita indicator, FEMA
calculated the inflation adjustment by
comparing the April CPI–U for the base
year 1986 (108.60) with the August CPI–
U for 2018 (252.146). At the time of this
analysis, August 2018 CPI–U data was
the most recently available August CPI–
U data available. This resulted in an
inflation adjustment factor of 2.322.84
FEMA then multiplied the inflation
adjustment factor of 2.322 by the
original per capita indicator of $1.00 to
80 FEMA, Tribal Declarations Pilot Guidance,
available at: https://www.fema.gov/tribaldeclarations-pilot-guidance. Notice of availability
published at 82 FR 3016 (Jan. 10, 2017).
81 The FY2019 per capita indicator was the most
current per capita indicator at the time that this
proposed rule was written.
82 Using August 1986 and 1999 CPI–U historical
data.
83 BLS Archived Consumer Price Index
Supplemental Files (available for download at:
https://www.bls.gov/CPI-U/tables/supplementalfiles/home.htm). Data was taken from the Historical
CPI–U, February 2019 publication.
84 Calculation: $1 + (252.146–108.60)/108.60 =
$2.322 (rounded).
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find a base per capita indicator of $2.32
(rounded).
Moving forward, once FEMA
increases the indicator for the 1986–
1999 inflationary adjustments, the
continued practice of adjusting the
indicator to account for changes in the
CPI–U would continue to ensure that
the indicator keeps pace with inflation.
This would lead to reductions in the
number and frequency of future major
disaster declarations, and decreases in
Federal costs of disaster assistance, by
having States take responsibility for
costs that are within their capability to
manage.
Much like FEMA’s decision in 1999 to
set the per capita indicator at $1 and
begin adjusting for inflation, rather than
PCPI,85 the current proposed change (to
increase the per capita indicator for
inflation between 1986 and 1999)
provides a simple, clear, consistent, and
long standing means of evaluating the
size of a disaster relative to the size of
the State, while also decreasing the
number and frequency of disaster
declarations, and decreasing Federal
disaster costs. Moreover, increasing the
per capita indicator to account for
inflation from 1986 to 1999 would be
more reflective of current dollar values,
and would better enable FEMA to
achieve its readiness and preparedness
missions because FEMA would be able
to apply more attention and resources to
large catastrophic incidents as less
FEMA focus and resources would be
needed for smaller incidents actually
within the States’ capabilities.
2. Adjusting the Increased Per Capita
Indicator for Total Taxable Resources
In addition to increasing the per
capita indicator to account for inflation
from 1986 to 1999, FEMA proposes to
adjust the increased, baseline per capita
indicator for a State’s TTR to set an
indicator that better recognizes a State’s
actual fiscal capability.
The TTR of the State is a publicly
available annual estimate of the relative
fiscal capacity of a State, calculated by
the U.S. Department of Treasury
(Treasury).86 Treasury defines TTR 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.87
TTR includes much of the business
income that does not become part of the
income flow to jurisdiction residents, as
well as undistributed corporate profits,
and rents and interest payments made
by businesses to out-of-jurisdiction real
estate owners and lenders.88 TTR does
not consider the actual fiscal choices
made by the States, but rather, it reflects
their potential resources and is an
indicator of a State’s broader
economy.89 In summary, TTR is a flow
concept, meaning it is a comprehensive
measure of all the income flows a State
can potentially tax.90 Treasury bases its
calculation of the TTR on the Gross
State Product (GSP) and State personal
income,91 accounting for the earnings of
State residents who work outside the
State borders, dividend and monetary
interest income earned from sources
outside of the State, select transfers from
the Federal Government, and net
realized capital gains. The following
components of GSP were not available
to States to tax and hence subtracted
from GSP: Federal indirect business
taxes, employer and employee
contributions to social insurance, and
Federal civilian enterprises surplus/
deficit.92
Consideration of TTR as an indicator
of State fiscal capacity is also consistent
with FEMA’s recent rulemaking revising
the factors considered when evaluating
requests for Individual Assistance (IA).
The revised regulations for evaluating
requests for IA (44 CFR 206.48(b)) use
TTR as the main indicator of a State’s
fiscal capacity to provide IA.93
FEMA considered other potential
alternatives for adjusting the per capita
indicator to better measure a State’s
financial capabilities, including State
GDP (i.e., the total value of the goods
and services produced within the State
in a particular year); State Total Actual
Revenues (TAR) (i.e., the amount of
revenue a particular State actually raises
in a typical year); and a composite index
of per capita TTR, per capita surplus/
deficit, per capita reserve funding, and
the State’s bond rating. State GDP and
TAR are strongly correlated with TTR;
88 See
89 See
Id. at 1–4.
Id. at 2.
90 Id.
91 Id.
at 2–3.
Id. at 1–4.
93 FEMA, Factors Considered When Evaluating a
Governor’s Request for Individual Assistance for a
Major Disaster, 84 FR 10632 (March 21, 2019). The
revised IA regulations also allow States to submit
information regarding State GDP and local per
capita personal income, as well as other limiting
factors, which FEMA may use as an alternative or
supplemental evaluation method to TTR from
which to measure a State’s fiscal capacity to
provide IA in response to a disaster. See 44 CFR
206.48(b)(1)(i)(A)–(C).
92 See
85 See
64 FR 47697 (Sept. 1, 1999).
updates TTR data annually with a 2year lag in the data, available at https://
home.treasury.gov/policy-issues/economic-policy/
total-taxable-resources.
87 Dep’t of Treasury, Office of Economic Policy,
Treasury Methodology for Estimating Total Taxable
Resources, at 2 (Revised Nov. 2002) (available for
download at: https://www.treasury.gov/resourcecenter/economic-policy/Documents/
nmpubsum.pdf).
86 Treasury
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however, TTR, as a measure of
potential, does not suffer from
complications of political choice in TAR
or GDP that result from differences
between States in State tax obligations
and the services for which tax dollars
are allocated. Accordingly, given the
correlation between the three, and the
policy-neutrality of TTR, FEMA believes
that TTR is the best measure of a State’s
financial capabilities by which to adjust
the baseline per capita indicator.
Under the composite index approach,
FEMA would average the four fiscal
capacity indices and use the final figure
to adjust each State’s per capita
indicator. This type of analysis was
previously considered for use in
FEMA’s Establishing a Deductible for
FEMA’s Public Assistance Program
Supplemental Advance Notice of
Proposed Rulemaking (Deductible
ANPRM).94 The Deductible ANPRM
was an earlier attempt to address the
issue of underestimating States’ fiscal
capacity when recommending disaster
declarations, and the four-part
composite index analysis was part of the
reason the deductible was eventually
rejected. Public comments received on
the Deductible ANPRM made clear that
State and local stakeholders were
uncomfortable with the complexity of
the four-factor analysis; although it is
more in-depth and could potentially
produce more accurate assessments of
States’ fiscal capacities, the analysis is
also a substantially more complicated
framework for States and PA subrecipients to adapt to and plan around.
FEMA decided against using it here for
these same reasons. FEMA believes
adjusting the per capita indicator only
by TTR strikes an appropriate balance
between improving the fiscal capacity
analysis by considering more than
simply a State’s population, and not
burdening States with an overly
complicated formula that slows
implementation of the new framework.
Based on the above, FEMA believes
that adjusting the baseline per capita
indicator for TTR would result in a
more realistic estimate of a State’s
financial capability. As previously
discussed, adjusting the per capita
indicator to adjust for inflation using the
CPI–U between 1986 and 1999 would
provide a more accurate measurement of
the current costs of response and
recovery, as well as changing present
value of the dollar. Adjusting the
indicator based on a State’s TTR would
provide additional accuracy in gauging
a State’s fiscal capacity by accounting
for taxable resources other than the
State’s population, such as business
94 82
FR 4064, 4072 (Jan. 12, 2017).
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20:48 Dec 11, 2020
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income, undistributed corporate profits,
and resident earnings from out-of-state
employment. This approach also aligns
with the recommendations of DHS OIG
and GAO, Congress’ direction in section
1239 of the DRRA, as well as the
Stafford Act and FEMA’s Strategic Plan,
by ensuring that Federal assistance
supplements State and local efforts
when State and local capabilities have
been exceeded, rather than supplanting
resources that a State is financially
capable of providing on its own.
Treasury reports TTR in three formats:
billions of dollars, dollars per capita,
and the per capita index. To adjust for
TTR, FEMA would use 1/100th of the
TTR per capita index, which is
calculated relative to the national
average TTR for a given year, where a
TTR per capita index of 100 represents
the national average. For example, if a
State had a TTR per capita index of 101,
FEMA would multiply the baseline
indicator by 1.01 to adjust (e.g., $2.32 ×
1.01 = $2.34). FEMA would use the
most recent TTR data available. Using
2018 published data, the minimum per
capita indicator adjusted for TTR would
be $1.52 (Mississippi, $2.32 × .655 =
$1.52) and the maximum per capita
indicator adjusted for TTR would be
$3.17 (Connecticut, $2.32 × 1.368 =
$3.17).95
FEMA believes that this method is the
clearest and simplest method of
utilizing the reported formats of TTR.96
If FEMA were to use one of the other
reported formats of TTR, FEMA would
need to set a percentage of State total
TTR in billions of dollars or State TTR
per capita that would be appropriate for
measuring a State’s fiscal capability for
responding to an incident, or FEMA
would need to devise a formula by
which to obtain a number that would
adjust the baseline per capita indicator.
FEMA believes that such changes could
be difficult to implement on an annual
basis, would be overly complex, and
could result in confusion for
stakeholders.97 In contrast, much like
95 U.S
Dept. of Treasury, 2018 Total Taxable
Resources Estimates (2018), https://
home.treasury.gov/system/files/226/TTR-tables2018.pdf.
96 The GAO recommended the same approach to
use a fiscal index to adjust the per capita indicator.
GAO, GAO 12–838 at 71–72.
97 Notably, the revisions to the regulations
governing requests for IA included the ability for
States to submit information on their GDP and local
per capita personal income (PCPI) which FEMA
may use as a supplemental or alternative factor to
TTR when measuring a State’s fiscal capacity to
provide IA. See 44 CFR 206.48(b)(1). While such
data may be useful in the IA context, it is less so
in the PA context. First, FEMA notes that the use
of State GDP and local PCPI are only as potential
supplemental or alternative data points for fiscal
capacity; TTR is still the preeminent factor for
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Sfmt 4702
80727
the adjustment to the baseline per capita
indicator, FEMA believes that the
proposed method of adjusting for TTR
provides the simplest, clearest, and
most workable method by which to
adjust the per capita indicator in order
to ensure that FEMA accurately
measures a State’s financial capabilities.
As shown in Table 1, the individual
States’ per capita indicators would
range from $1.51 to $3.15. Every State’s
per capita indicator would increase due
to the adjustment for increases to the
CPI–U from 1986 and 1999. However,
adjusting for TTR would decrease 29
States’ per capita threshold from the
base amount, 20 States would see an
increase in their per capita indicator
threshold, and 7 States would still have
a $2.32 adjusted per capita indicator.98
FEMA proposes not to adjust the
District of Columbia’s per capita
indicator for TTR. The complex tax and
Federal appropriation circumstances in
the District of Columbia, as well as
Congress’ control over the ability of the
District to manipulate its own revenues,
would require impractical and
potentially inaccurate adjustments in
the TTR method. For example, Federal
law prohibits the District from taxing
non-resident commuters. Additionally,
evaluating the District of Columbia’s
TTR is further complicated by the direct
Federal oversight and appropriation of
the District’s budget. Accordingly, TTR
does not provide the additional
accuracy in determining the District’s
financial capability as it does for the
States. Therefore, FEMA would use the
increased per capita indicator to
determine the District’s per capita
threshold, without adjusting for TTR.
FEMA specifically requests comment on
possible alternatives to this approach
that would improve the accuracy of
FEMA’s fiscal capacity analysis for the
District.
Additionally, FEMA is not proposing
to adjust the per capita indicator for
TTR for the territories because Treasury
determining fiscal capacity for IA requests. Second,
the IA program does not use a per capita indicator
like the PA program, nor does it use any adjustment
factors such as the proposed rule. Accordingly, if
FEMA were to incorporate State GDP and local
PCPI, along with TTR, into its consideration of PA
requests, it would need to create a formula to adjust
the per capita indicator, which would add
complexity to the per capita indicator with little
benefit given that TTR already incorporates a
measure of a State’s GDP and personal income.
Moreover, States may submit data on their GDP or
local PCPI to supplement their request for a PA
declaration, since FEMA may consider information
in addition to the factors in 44 CFR 206.48(a) to the
extent that it further informs FEMA’s
recommendation to the President.
98 As noted above, FEMA is not proposing to use
TTR data for the territories and DC. South Dakota
had a TTR of 100 in 2018.
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does not report TTR for the territories.99
This would result in the territories
having the same per capita threshold as
the average State, which may in practice
be an over-estimation of the territories’
fiscal capacity. However, without a
published TTR to use, adopting the
same approach proposed here for the
States simply is not an option. FEMA
requests comment on alternative
approaches that would improve FEMA’s
fiscal capacity analysis for the
territories. One such alternative, on
which FEMA requests comment, would
be to adjust the per capita indicator for
the territories by the lowest TTR
reported for any of the States.
3. Using Annual Population Data To
Calculate the States’ COA Indicator
FEMA proposes to use the U.S.
Census Bureau’s annual population
estimates produced under PEP instead
of the decennial census population data
when calculating the State COA
indicator. PEP produces annual
estimates for years after the last
published decennial census, as well as
for past decades. The Census Bureau
uses existing data series such as births,
deaths, Federal tax returns, Medicare
enrollment, and immigration to update
the decennial census base counts. PEP
estimates are used in Federal funding
allocations, in setting the levels of
national surveys, and in monitoring
recent demographic changes.100 As
years pass since the most-recent
decennial survey, the PEP estimates
bear less relation to the previous
numbers and adopt a stronger
correlation to the results of the next
decennial survey. In other words, as
more time elapses between the most
recently completed decennial survey
and the next decennial survey, the PEP
estimates become more current
measures of the States’ populations than
the most recently conducted decennial
survey.
Using the annual PEP data instead of
data from the most recent decennial
census would provide a more
contemporaneous measure of a State’s
population to use in FEMA’s calculation
of State COA indicators. As shown in
the examples of Nevada and Puerto
Rico, use of decennial census data can
lead to inaccurate assessments of a
State’s current population. Using the
U.S. Census Bureau’s annual PEP data
instead of the decennial census data
would ensure a more current
assessment. Using the PEP data would
better enable FEMA to achieve its
readiness and preparedness missions
because FEMA would be able to expend
more attention and resources to large
catastrophic incidents since less FEMA
focus and resources would be needed
for smaller incidents within the States’
capabilities.
4. State COA Indicators After
Accounting for Proposed Changes
The following table shows for each
State: (1) The most recent TTR per
capita index (2016),101 (2) the proposed
State per capita indicator after adjusting
for inflation and TTR, (3) State
population from the most recent PEP
estimates (2018),102 (4) the resultant
proposed State COA indicators, (5) the
FY2019 State COA indicators based on
the FY2019 per capita indicator
($1.50) 103 and 2010 decennial census
data, and (6) the difference between the
proposed and baseline State COA
indicators.
TABLE 1—PROPOSED STATE COA INDICATORS
2016 TTR
(percentage)
State
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Proposed
state per
capita
indicator
(2016 TTR *
$2.32)
73.7
110.5
76.6
74.2
114.2
102
136.8
100
131.7
85.4
87.3
99
74.5
108.4
90.7
102.5
96.3
76.6
85.8
79.6
117.2
130.4
85.6
105
65.5
86.1
80.2
107.1
99 The territories for which Treasury does not
report TTR include: American Samoa, Guam, the
Commonwealth of the Northern Mariana Islands,
Puerto Rico and the U.S. Virgin Islands.
100 U.S. Census Bureau, Population and Housing
Units Estimates: Frequently Asked Questions
(available at: https://www.census.gov/programssurveys/popest/about/faq.html) (accessed April 26,
2019).
101 The Treasury Department publishes updated
TTR per capita indices two years after the year in
question. The most recent data available at the time
of this analysis was 2016 data.
102 PEP estimates are released in July each year
covering the previous year and all other years back
to the last decennial census. At the time of this
analysis, the data for 2018 was the most recent data
available.
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4,887,871
737,438
7,171,646
3,013,825
39,557,045
5,695,564
3,572,665
967,171
702,455
21,299,325
10,519,475
1,420,491
1,754,208
12,741,080
6,691,878
3,156,145
2,911,505
4,468,402
4,659,978
1,338,404
6,042,718
6,902,149
9,995,915
5,611,179
2,986,530
6,126,452
1,062,305
1,929,268
Sfmt 4702
FY 2019
state COA
indicators—
baseline
(B)
Proposed
state COA
indicators
(A)
Alabama ........................................................
Alaska ............................................................
Arizona ..........................................................
Arkansas .......................................................
California .......................................................
Colorado ........................................................
Connecticut ...................................................
District of Columbia .......................................
Delaware .......................................................
Florida ...........................................................
Georgia ..........................................................
Hawaii ............................................................
Idaho .............................................................
Illinois ............................................................
Indiana ...........................................................
Iowa ...............................................................
Kansas ..........................................................
Kentucky ........................................................
Louisiana .......................................................
Maine .............................................................
Maryland ........................................................
Massachusetts ..............................................
Michigan ........................................................
Minnesota ......................................................
Mississippi .....................................................
Missouri .........................................................
Montana ........................................................
Nebraska .......................................................
VerDate Sep<11>2014
$1.71
2.56
1.78
1.72
2.65
2.37
3.17
2.32
3.06
1.98
2.03
2.30
1.73
2.51
2.10
2.38
2.23
1.78
1.99
1.85
2.72
3.03
1.99
2.44
1.52
2.00
1.86
2.48
PEP
population
estimate
(2018)
$8,358,259
1,887,841
12,765,530
5,183,779
104,826,169
13,498,487
11,325,348
2,243,837
2,149,512
42,172,664
21,354,534
3,267,129
3,034,780
31,980,111
14,052,944
7,511,625
6,492,656
7,953,756
9,273,356
2,476,047
16,436,193
20,913,511
19,891,871
13,691,277
4,539,526
12,252,904
1,975,887
4,784,585
$7,169,604
1,065,347
9,588,026
4,373,877
55,880,934
7,543,794
5,361,146
902,585
1,346,901
28,201,965
14,531,480
2,040,452
2,351,373
19,245,948
9,725,703
4,569,533
4,279,677
6,509,051
6,800,058
1,992,542
8,660,328
9,821,444
14,825,460
7,955,888
4,450,946
8,983,391
1,484,123
2,739,512
Difference
(A¥B)
$1,188,655
822,494
3,177,504
809,902
48,945,235
5,954,693
5,964,202
1,341,252
802,611
13,970,699
6,823,054
1,226,677
683,407
12,734,163
4,327,241
2,942,092
2,212,979
1,444,705
2,473,298
483,505
7,775,865
11,092,067
5,066,411
5,735,389
88,580
3,269,513
491,764
2,045,073
Percent
change
16.6
77.2
33.1
18.5
87.6
78.9
111.2
148.6
59.6
49.5
47.0
60.1
29.1
66.2
44.5
64.4
51.7
22.2
36.4
24.3
89.8
112.9
34.2
72.1
2.0
36.4
33.1
74.7
103 FEMA publishes updated per capita indicators
in the Federal Register each year, with FY 2019
being the most recent data available at the time of
this analysis. If this proposed change were adopted,
FEMA’s annual publication in the Federal Register
would include a list of TTR-adjusted per capita
indicators and COA indicators for each State.
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80729
TABLE 1—PROPOSED STATE COA INDICATORS—Continued
Proposed
state per
capita
indicator
(2016 TTR *
$2.32)
2016 TTR
(percentage)
State
Nevada ..........................................................
New Hampshire .............................................
New Jersey ...................................................
New Mexico ...................................................
New York .......................................................
North Carolina ...............................................
North Dakota .................................................
Ohio ...............................................................
Oklahoma ......................................................
Oregon ..........................................................
Pennsylvania .................................................
Rhode Island .................................................
South Carolina ..............................................
South Dakota ................................................
Tennessee .....................................................
Texas .............................................................
Utah ...............................................................
Vermont * .......................................................
Virginia ..........................................................
Washington ...................................................
West Virginia .................................................
Wisconsin ......................................................
Wyoming .......................................................
Puerto Rico ...................................................
American Samoa * .........................................
Guam * ...........................................................
Northern Mariana Islands * ............................
Virgin Islands * ...............................................
91.9
112.9
122.8
76
132
86.4
119.8
91.6
80.7
95.7
100.4
101.9
75.5
100
84.9
96.6
87.4
91.7
105.1
116
72
95.4
117.9
100
100
100
100
100
2.13
2.62
2.85
1.76
3.06
2.00
2.78
2.13
1.87
2.22
2.33
2.36
1.75
2.32
1.97
2.24
2.03
2.13
2.44
2.69
1.67
2.21
2.74
2.32
2.32
2.32
2.32
2.32
PEP
population
estimate
(2018)
FY 2019
state COA
indicators—
baseline
(B)
Proposed
state COA
indicators
(A)
3,034,392
1,356,458
8,908,520
2,095,428
19,542,209
10,383,620
760,077
11,689,442
3,943,079
4,190,713
12,807,060
1,057,315
5,084,127
882,235
6,770,010
28,701,845
3,161,105
626,299
8,517,685
7,535,591
1,805,832
5,813,568
577,737
3,195,153
55,519
159,358
44,943
106,405
6,463,255
3,553,920
25,389,282
3,687,953
59,799,160
20,767,240
2,113,014
24,898,511
7,373,558
9,303,383
29,840,450
2,495,263
8,897,222
2,046,785
13,336,920
64,292,133
6,417,043
1,334,017
20,783,151
20,270,740
3,015,739
12,847,985
1,582,999
7,412,755
128,804
369,711
104,268
246,860
4,050,827
1,974,705
13,187,841
3,088,769
29,067,153
14,303,225
1,008,887
17,304,756
5,627,027
5,746,611
19,053,569
1,578,851
6,938,046
1,221,270
9,519,158
37,718,342
4,145,828
938,612
12,001,536
10,086,810
2,779,491
8,530,479
845,439
5,588,684
83,279
239,037
67,415
159,608
Difference
(A¥B)
2,412,428
1,579,215
12,201,441
599,184
30,732,007
6,464,015
1,104,127
7,593,755
1,746,531
3,556,772
10,786,881
916,412
1,959,176
825,515
3,817,762
26,573,791
2,271,215
395,405
8,781,615
10,183,930
236,248
4,317,506
737,560
1,824,071
45,525
130,674
36,853
87,252
Percent
change
59.6
80.0
92.5
19.4
105.7
45.2
109.4
43.9
31.0
61.9
56.6
58.0
28.2
67.6
40.1
70.5
54.8
42.1
73.2
101.0
8.5
50.6
87.2
32.6
54.7
54.7
54.7
54.7
* These jurisdictions are subject to the current $1 million minimum threshold because the State COA indicator falls beneath the minimum threshold.
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B. 44 CFR 206.48(a)(1)—Adjusting the
$1 Million Minimum Threshold for
Inflation
FEMA proposes to increase the
minimum threshold in the cost of
assistance estimates factor to account for
inflation from 1999, and to adjust the
threshold using CPI–U annually
hereafter. The proposed rule would
increase the current minimum threshold
from $1 million to $1.535 million for FY
2019.104 As noted above, FEMA has
never increased the minimum threshold
since it established the threshold in
1999, despite a 51 percent increase in
the CPI–U and corresponding rises in
the costs to respond to incidents, as well
as rises in State GDP, expenditures, and
TTR. Accordingly, while FEMA
believed in 1999 that $1 million was a
reasonable amount for even the least
populous States and Territories to
handle on their own, FEMA believes
that the $1 million minimum threshold
may no longer be an accurate
benchmark of the least populous States’
and Territories’ capabilities to respond
to incidents. Based on the rises in State
104 FEMA calculated the inflation adjustment by
comparing the January CPI–U for the base year 1999
(164.3) with the August CPI–U for 2018 (252.146).
This resulted in an inflation adjustment factor of
1.535. FEMA then multiplied the inflation
adjustment factor of 1.535 by the original minimum
threshold of $1 million to find a minimum
threshold of $1,535,000 (rounded).
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and Territories’ GDP, expenditures, and
TTR, FEMA believes that States and
Territories should be able to handle the
increased minimum threshold.
With the proposed changes to the per
capita indicator and the minimum
threshold, Vermont, and the territories
of the U.S. Virgin Islands, Guam,
American Samoa, and the
Commonwealth of the Northern Mariana
Islands would have State COA
indicators that would fall below the
proposed minimum threshold.105
Accordingly, these jurisdictions would
be subject to the $1.535 million
minimum threshold.
Importantly, by accounting for
increases to the CPI–U since 1999 and
annually moving forward, the minimum
threshold would be more representative
of current dollar values and be a more
105 As shown in Table 1 above, with the proposed
changes to the per capita indicator, Vermont’s State
COA indicator would be just over $1.30 million.
Each of the noted territorial jurisdictions COA
indicators fall well below the proposed $1.535
million minimum threshold. Therefore, under this
proposed rule, in cases where the estimated cost of
assistance meets or exceeds the COA indicators for
Vermont or the territorial jurisdictions, but is less
than the $1.535 million minimum threshold, the
minimum threshold would apply, and the
estimated cost of assistance for the State or
Territory would have to meet this higher amount.
FEMA anticipates that these territorial jurisdictions
will generally be subject to the annual minimum
threshold year to year due to their small
populations.
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accurate indicator of the least populous
States’ capabilities to respond to
incidents. The reduction in disaster
declarations would keep FEMA from
expending resources and attention on
incidents within the States’ capabilities,
allowing FEMA to better prepare for
large, catastrophic incidents. A higher
minimum threshold would incentivize
less populous States and Territories to
build their response and recovery
capabilities and mitigate the hazards of
future incidents.
In addition to analyzing the effects of
increasing the minimum threshold to
account for CPI–U from 1999, FEMA
analyzed several alternatives to
increasing the minimum threshold. The
full results of the analysis are presented
in the RIA. FEMA analyzed increases
since 1999 in State general fund
expenditures (which were used as a
partial basis for the $1 per capita
indicator set in 1986), State TTR, and
State GDP, as potential alternatives to
the proposed action.
FEMA also analyzed whether its
administrative costs for past smaller
disasters demonstrated a threshold for
which FEMA’s administrative burden
exceeded the amount of Federal
assistance provided. In other words,
instances in which FEMA’s cost to
deliver the assistance may have
exceeded the cost of the assistance
provided. Administrative costs include
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disaster-related personnel costs such as
salaries, benefits, and travel; the cost of
tasking another Federal agency to
support operations (mission
assignments); technical assistance
contracts associated with the execution
of the PA program; and, general
administrative costs such as leases,
communications, supplies, and
equipment that are incurred from
declaration to disaster closure.106 Given
the broad scope of items included in
administrative costs, particularly related
to personnel, administrative costs are a
good representation of the overall
Federal resources and attention that are
expended on a given disaster.
Based on the analysis of alternatives,
FEMA believes that increasing the
minimum threshold to account for post1999 increases to CPI–U is the best
alternative for raising the minimum
threshold because the other alternatives
would increase the complexity of setting
the minimum threshold, with few, if
any, additional benefits. As explained in
the stand-alone RIA found in the docket
of this rulemaking,107 while the other
alternatives may result in modest gains
in reducing disaster declarations and
Federal expenditures, those gains would
be outweighed by the complexity that
FEMA and stakeholders would
encounter in implementing these other
alternatives. Importantly, however, in
addition to increases in the CPI–U, the
increases in State expenditures, GDP,
and TTR, and FEMA’s average
administrative costs for small disasters
collectively demonstrate that the current
$1 million threshold is no longer an
accurate benchmark for the States’
capabilities to respond to disasters on
their own. Therefore, based on the
totality of this information, FEMA
believes an increase to the minimum
threshold is necessary.
Accordingly, FEMA proposes to
amend the minimum threshold to
account for increases to the CPI–U from
1999 to present, and annually thereafter.
The proposed changes would provide
the simplest and most certain means of
increasing the minimum threshold, and
for annual changes to the threshold. The
proposed use of the CPI–U to increase
the minimum threshold is also
consistent with the adjustments to the
per capita indicator. Additionally,
adjusting the minimum threshold for
changes to the CPI–U would better
reflect current dollar values and the
States’ incident response capabilities,
106 Administrative costs do not include program
costs associated with mission assignments for
Direct Federal Assistance, Urban Search and Rescue
costs, and all other program deliverables and
assistance such as grants to survivors.
107 See Regulatory Impact Analysis at 47–51.
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allow FEMA to be better prepared for
larger, catastrophic incidents, and
incentivize States to build their
response capabilities and mitigate
hazards posed by future incidents,
thereby helping FEMA achieve its
mission to make the nation better
prepared and more resilient.
C. 44 CFR 206.48(a)(2)–(6)—Other
Factors
Section 1232 of the DRRA requires the
Administrator of FEMA to give greater
consideration to recent multiple
disasters or severe localized impacts
when making disaster declaration
recommendations to the President, and
to make corresponding adjustments to
FEMA’s policies and regulations
regarding such consideration. The
current text of 44 CFR 206.48(a)(5)
provides broad discretion for the
consideration of multiple disasters
occurring in the 12-month period prior
to the event. Consistent with that
provision and with FEMA’s May 1
guidance to Regional Administrators,
directing them to include in their
recommendations appropriate and
fulsome information regarding severe
local impacts and the history of recent
multiple disasters,108 FEMA is giving
greater consideration to these factors
when making disaster declaration
recommendations. Accordingly, FEMA
is not proposing to substantively amend
§ 206.48(a)(5), but requests comment on
whether a revision of the 12-month time
limit currently in place is necessary to
give greater consideration to this factor
as required by the DRRA.
Similarly, FEMA proposes not to
substantively amend the current
regulatory text for the localized impacts
factor in § 206.48(a)(2). As noted above,
FEMA has instructed Regional staff to
give greater consideration to local
impacts moving forward 109 and FEMA
believes that the current regulatory text
provides FEMA sufficient flexibility to
provide adequate consideration of local
impacts while ensuring that FEMA does
not over step the statutory requirement
that an event be beyond State
capability.110
108 Memorandum for Regional Administrators
from Jeff Byard, Associate Administrator, Office of
Response and Recovery, Declaration Factors for
Local Impact and Recent Multiple Disasters (May 1,
2019).
109 Memorandum for Regional Administrators
from Jeff Byard, Associate Administrator, Office of
Response and Recovery, Declaration Factors for
Local Impact and Recent Multiple Disasters (May 1,
2019).
110 Importantly, the DRRA did not amend section
401 of the Stafford Act which requires that the
President determine that an event, to qualify as a
major disaster warranting Federal assistance, be
beyond the capabilities of the State and the affected
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Additionally, with regard to the
requirements of section 1239 of the
DRRA that FEMA review all of the
declaration factors and update them as
necessary, FEMA does not propose to
substantively amend the other
declaration factors at 44 CFR
206.48(a)(3) (‘‘Insurance coverage in
force’’), (4) (‘‘Hazard mitigation’’), and
(6) (‘‘Programs of other Federal
assistance’’) at this time. FEMA believes
that the regulatory text for these factors
already provides adequate consideration
of important information for FEMA’s
assessment of a State’s capabilities to
respond to an event, while also
providing sufficient flexibility for FEMA
to account for a variety of circumstances
across the States. Notably, although
FEMA is not proposing to substantively
amend these factors, FEMA may
consider relevant information submitted
by a requesting State that is outside the
scope of the declaration factors listed in
44 CFR 206.48(a).
D. 44 CFR 206.48—Minor Technical and
Grammatical Edits
FEMA also proposes minor technical
and corresponding grammatical changes
to the undesignated introductory
paragraph and to § 206.48(a) to ensure
consistent language between the PA
declaration factors in 44 CFR 206.48(a)
and the IA factors in 44 CFR 206.48(b).
FEMA proposes to replace all uses of
the term ‘‘we’’ in 44 CFR 206.48 with
‘‘FEMA’’. This would be consistent with
the IA declaration factors in 44 CFR
206.48(b). FEMA also proposes minor
corresponding edits to account for the
change to the use of ‘‘FEMA’’ to ensure
proper grammar.
VI. Regulatory Analysis
A. Executive Order 12866, As Amended,
Regulatory Planning and Review;
Executive Order 13563, Improving
Regulation and Regulatory Review; and
Executive Order 13771, Reducing
Regulation and Controlling Regulatory
Costs
Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
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
local governments. See 42 U.S.C. 5170(a). So, while
the President must give consideration to the impact
of an event on local governments, he must also
determine that the event exceeds the capabilities of
the State.
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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 an
‘‘economically significant regulatory
action,’’ under section 3(f)(1) of
Executive Order 12866. Accordingly,
this 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).
FEMA conducted a Regulatory Impact
Analysis (RIA) to assess the potential
costs, benefits, and transfers from this
proposed rule, and it has been found to
be economically significant under E.O.
12866. FEMA provides an executive
summary of the RIA below. For the full
analysis, please see the RIA posted in
the docket of this proposed rule on
regulations.gov.
FEMA proposes to amend one of the
factors it considers when recommending
a major disaster declaration that
authorizes PA. Specifically, the
proposed rule would update 44 CFR
206.48(a)(1), ‘‘Estimated cost of the
assistance.’’ FEMA proposes four
associated changes in 44 CFR 206.48(a)
to conform regulations to Section 1239
of the Disaster Recovery Reform Act of
2018 (DRRA). Table 2 provides a
summary of the impacts of the proposed
rule. The four proposed changes are:
(1) Increase the per capita indicator
from $1.50 to $2.32 to account for
80731
inflation using Consumer Price Index
for All Urban Consumers (CPI–U) data
from 1986 to 1999 because no inflation
factor was applied during that time
frame. Adjust the per capita indicator by
each individual State’s total taxable
resources (TTR).
(2) Increase the minimum threshold
for major disaster declarations that
authorize PA from $1 million to $1.535
million to account for inflation since
1999 and to adjust the threshold by CPI–
U annually thereafter.111
(3) Use the US Census Bureau’s
annual population estimates produced
under the Population Estimates Program
(PEP) when calculating the individual
State’s threshold. FEMA’s current
practice is to use the decennial census
population data when calculating the
State COA indicator.
(4) Make minor technical and
corresponding grammatical changes to
the undesignated introductory
paragraph and to paragraph (a) of
§ 206.48.
TABLE 2—SUMMARY OF THE IMPACTS OF THE PROPOSED RULE (2018$)
Category
Summary
Proposed Changes ..............
Replace the per capita indicator of $1.50 with $2.32 to account for inflation from 1986–1999 and then adjust by
State TTR annually.
Replace the minimum threshold of $1,000,000 with $1,535,000 and adjust by CPI–U annually.
Use PEP annual population estimates instead of decennial census data to calculate the State COA indicators.
Technical and grammatical changes to 44 CFR 206.48(a).
Applicants eligible to submit an application for a PA project, include 56 State and Territorial governments, 573
Federally recognized Indian Tribal governments, local governments, and certain private nonprofit organizations
(PNPs). From 2008–2017, 7,456 Applicants would have been impacted by the proposed rule.
$208.76 million annualized and $1.47 billion and $1.78 billion 10-year monetized reduction in transfers to the Applicants from FEMA at 7 and 3 percent discount rates, respectively.
$62.71 million annualized and $440.45 million and $534.93 million 10-year monetized FEMA costs savings at 7
and 3 percent discount rates, respectively.
Affected Population ..............
Transfers ..............................
Cost Savings (due to reduced disaster declaration
requests and applications).
Costs (quantitative) ..............
Costs (qualitative) ................
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Benefits (quantitative) ..........
Benefits (qualitative) .............
$8.04 million annualized; and $56.44 million and $68.55 million 10-year monetized; Applicant cost savings at 7
and 3 percent discount rates, respectively.
$5,274 and $4,513 annualized; and $37,042 and $38,496 10-year monetized costs to Applicants and FEMA at 7
and 3 percent discount rates, respectively.
Applicants would need to invest more in response recovery, and mitigation capabilities. Damaged facilities may
not be repaired or replaced and could be susceptible to future disasters.
No quantitative benefits.
Provide FEMA with a more accurate assessment of whether an incident has exceeded an Applicant’s capabilities
to respond to and recover from an incident.
Incentivize Applicants to invest more in response, recovery, and mitigation capabilities, and increase overall national preparedness for incidents.
Allow FEMA to refine its focus and resources on large-scale disasters.
111 January 1999 CPI–U was 164.3 and August
2018 CPI–U was 252.146. Calculation: (252.14 ¥
164.3)/164.3 + 1 = 1.535 conversation factor
(rounded). 1.535 × $1,000,000 = $1,535,000.
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Affected Population
The proposed rule would reduce the
number of major disaster declarations
authorizing PA and therefore affect all
non-Federal entities that are eligible to
request PA following a Federal major
disaster declaration. Eligible applicants
for PA include 50 State and 6 Territorial
governments, and the District of
Columbia as well as 573 Federally
recognized Indian Tribal
governments,112 local governments, and
certain PNPs. A disaster declaration is
done at the State level, but the
Applicants fill out the forms for PA
eligibility and to receive funding once
PA funding is made available through a
declaration. For simplicity, FEMA refers
to the affected population as Applicants
throughout the RIA. If this proposed
rule had been in effect from 2008–2017,
7,456 Applicants for 159 PA disasters
would have been impacted by the
proposed rule. These Applicants would
have had a reduction in grant funding,
including funding and management
costs for PA, funding and management
costs for HMGP, and funding and
management costs for BRIC. These
Applicants would have also had
paperwork cost savings for not filling
out the forms to determine eligibility
and receive funding.
Reduction in Disaster Declarations
As discussed later in this analysis,
FEMA used data for the PA disasters
from fiscal years (FY) 2008–2017 to
estimate how the proposed rule would
impact the number of PA disasters and
the funding and costs associated with
those PA disasters. FEMA used
historical data on the estimated impacts
on PA disasters from 2008–2017 as a
proxy to estimate the impacts over the
next ten years after this rule becomes
final and effective. FEMA found there
were a total of 585 PA disasters over the
10-year period of analysis, an average of
59 disasters per year. FEMA estimates
that there likely would be 159 PA
disasters that would no longer be
declared disasters under the proposed
rule, an average of 16 fewer PA disasters
declared per year as discussed further in
the RIA. This represents a 27 percent
reduction in PA disasters declared from
2008–2017 under this proposed rule.
Transfers
Transfer payments are monetary
payments from one group to another
that do not affect the total resources
available to society. Transfers can have
significant efficiency effects in addition
to distributional effects and are not
included in the estimates of the benefits
and costs of a regulation. Transfers are
analyzed in this RIA because grants, i.e.
those grants made by FEMA for PA, are
considered transfers.
The reduction in PA disasters would
result in a reduction in grant funding to
the PA Applicants. The reduction in
funding from these programs equates to
a reduction in transfers from FEMA to
the Applicants. FEMA estimates the
total 10-year undiscounted transfers of
the proposed rulemaking would be
$2.09 billion. The total 10-year
discounted transfers would be $1.47
billion at a 7 percent discount rate and
1.78 billion at a 3 percent discount rate,
with annualized transfers of $208.76
million at both 7 and 3 percent discount
rates (Table 3).
TABLE 3—TOTAL ESTIMATED TRANSFERS OF THE PROPOSED RULE
[2018$]
Total
undiscounted
reduction
in transfers
from FEMA to
applicants
Year
7%
3%
1 ...................................................................................................................................................
2 ...................................................................................................................................................
3 ...................................................................................................................................................
4 ...................................................................................................................................................
5 ...................................................................................................................................................
6 ...................................................................................................................................................
7 ...................................................................................................................................................
8 ...................................................................................................................................................
9 ...................................................................................................................................................
10 .................................................................................................................................................
$208,758,700
208,758,700
208,758,700
208,758,700
208,758,700
208,758,700
208,758,700
208,758,700
208,758,700
208,758,700
$195,101,589
182,337,933
170,409,284
159,261,013
148,842,068
139,104,736
130,004,427
121,499,464
113,550,901
106,122,337
$202,678,350
196,775,097
191,043,783
185,479,401
180,077,088
174,832,125
169,739,927
164,796,046
159,996,161
155,336,078
Total ......................................................................................................................................
2,087,587,000
1,466,233,752
1,780,754,055
208,758,700
208,758,700
Annualized ...................................................................................................................................
Cost Savings
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Discounted
The proposed rulemaking would
result in administrative cost savings for
FEMA, and paperwork cost savings for
the Applicants and FEMA due to a
decrease in the number of PA, BRIC,
and HMGP applications resulting from
fewer disaster declarations. A reduction
in declarations would allow FEMA to
focus its efforts and resources on larger
112 As noted above, Tribal governments may
directly submit a request for a major disaster
declaration to FEMA under the Tribal Declarations
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disasters without the complications of
reallocating response resources from
multiple smaller scale commitments.
The 10-year undiscounted FEMA cost
savings resulting from the proposed rule
would be $627.10 million ($440.45
million discounted at 7 percent
discount rate and $534.92 million at a
3 percent discount rate; $62.71 million
annualized at both 7 and 3 percent
discount rates). FEMA estimates the 10-
year undiscounted Applicant cost
savings would be $73.30 million ($51.48
million at 7 percent and $62.53 million
at 3 percent; $7.33 million annualized at
both 7 and 3 percent). The total 10-year
undiscounted cost savings for both
FEMA and the Applicants would be
$700.40 million, because there would be
fewer requests for disasters to be
declared and there would be fewer
Applicants able to apply for relief. The
Pilot Guidance, instead of requesting assistance
through the State. The potential impacts of this
proposed rule are discussed in more detail below
and in the RIA. See Section 13 of the RIA.
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10-year total discounted cost savings
would be $491.93 million at 7 percent
and $597.46 million at 3 percent, with
an annualized cost savings of $70.75
million (Table 4).
TABLE 4—TOTAL ESTIMATED COST SAVINGS OF THE PROPOSED RULE
[2018$]
Applicant
cost savings
Year
FEMA cost
savings
Total
undiscounted
cost savings
Discounted
7%
3%
1 ...........................................................................................
2 ...........................................................................................
3 ...........................................................................................
4 ...........................................................................................
5 ...........................................................................................
6 ...........................................................................................
7 ...........................................................................................
8 ...........................................................................................
9 ...........................................................................................
10 .........................................................................................
$8,035,714
8,035,714
8,035,714
8,035,714
8,035,714
8,035,714
8,035,714
8,035,714
8,035,714
8,035,714
$62,710,053
62,710,053
62,710,053
62,710,053
62,710,053
62,710,053
62,710,053
62,710,053
62,710,053
62,710,053
$70,745,767
70,745,767
70,745,767
70,745,767
70,745,767
70,745,767
70,745,767
70,745,767
70,745,767
70,745,767
$66,117,539
61,792,093
57,749,619
53,971,607
50,440,754
47,140,892
44,056,908
41,174,681
38,481,010
35,963,561
$68,685,211
66,684,671
64,742,399
62,856,698
61,025,920
59,248,466
57,522,783
55,847,362
54,220,740
52,641,495
Total ..............................................................................
80,357,140
627,100,530
707,457,670
496,888,663
603,475,742
Annualized ...........................................................................
........................
........................
........................
70,745,767
70,745,767
Costs
The proposed rule would
substantively revise the estimated cost
of the assistance disaster declaration
factor. The proposed rule would not
create new factors for FEMA to consider
when reviewing a request for a PA
disaster. FEMA would not change its
current process for updating the per
capita indicator or PA damage
thresholds. FEMA’s current practice is
to update the per capita indicator each
fiscal year to adjust for inflation using
the for CPI–U and post the updated
indicator on the Federal Register and
FEMA website. The proposed rule
would also require FEMA to update the
minimum threshold every year to adjust
for inflation. This is a new practice that
FEMA is implementing to more
accurately gauge a State’s fiscal capacity
to respond to disasters, as the threshold
has not been updated since it was
introduced in 1999. However, FEMA
already calculates the change in CPI–U
to apply to the per capita indicator each
year. FEMA would apply the same
change in CPI–U used to update the per
capita indicator to the minimum
threshold. The proposed rule would
require FEMA to adjust the per capita
indicator for each State’s TTR, which is
a new practice. FEMA estimates it
would cost $12 per year for a FEMA
employee to adjust the per capita
indicator by TTR annually.
FEMA would continue to post the
updated per capita indicator each fiscal
year and would not require any
additional annual calculations or data
requirements from the Applicants. The
proposed rule would impose a one-time
cost of $39,545 to the Applicants to
familiarize themselves with the
proposed changes the first year (Table
5). The minimum threshold would now
be published yearly along with the per
capita indicator. Because Applicants
already look up the per capita indicator,
FEMA does not expect additional costs
associated with also looking up the
minimum threshold. The proposed
changes could impose qualitative costs
that FEMA was unable to quantify.
Qualitative costs are discussed in the
RIA. Transferring the costs of PA
disasters to Applicants would require
the Applicants to invest more in
response, recovery, and mitigation
capabilities. It is possible that without
Federal assistance, Applicants may opt
to not repair damaged facilities or pay
for other recovery efforts. Damaged
facilities that are not repaired or
replaced could be more susceptible to
subsequent incidents in the future.
Additionally, damaged facilities that are
not repaired or replaced may no longer
be used, which could be a significant
loss of infrastructure to small
governments who might opt to not
repair damaged facilities due to fiscal
limitations.
TABLE 5—TOTAL ESTIMATED COSTS OF THE PROPOSED RULE
[2018$]
Applicant
costs
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Year
FEMA costs
Total
undiscounted
costs
Discounted
7%
3%
1 ...........................................................................................
2 ...........................................................................................
3 ...........................................................................................
4 ...........................................................................................
5 ...........................................................................................
6 ...........................................................................................
7 ...........................................................................................
8 ...........................................................................................
9 ...........................................................................................
10 .........................................................................................
$39,545
0
0
0
0
0
0
0
0
0
$12
12
12
12
12
12
12
12
12
12
$39,557
12
12
12
12
12
12
12
12
12
$36,969
10
10
9
9
8
7
7
7
6
$38,405
11
11
11
10
10
10
9
9
9
Total ..............................................................................
39,545
120
39,665
37,042
38,496
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TABLE 5—TOTAL ESTIMATED COSTS OF THE PROPOSED RULE—Continued
[2018$]
Applicant
costs
FEMA costs
........................
........................
Year
Annualized ...........................................................................
Benefits
FEMA was unable to quantify benefits
of the proposed regulatory changes due
to a lack of data on future impacts of
adjusting declaration factors. FEMA
instead focused on proposed regulatory
changes that would provide FEMA with
a more accurate assessment of whether
an incident has exceeded an Applicant’s
capabilities to respond to and recover
from an incident. This is because the
minimum threshold and per capita
indicator have not consistently been
updated to account for inflation, and not
based on a State’s fiscal capacity to
respond. The proposed changes would
ensure that these factors are taken into
account. FEMA believes that the
proposed changes also would
incentivize Applicants to invest more in
response, recovery, and mitigation
capabilities, since Federal assistance
would be focused on larger-scale
disasters, and Applicants will have
more responsibility to ensure they are
adequately equipped to handle smaller
disasters. This would provide a better
distribution of responsibilities between
the Applicants and the Federal
Government. These incentives would
increase overall national preparedness
for incidents. In addition, FEMA
believes these changes to the PA
declaration factors would result in a
reduction in the number of declarations
for smaller incidents, allowing FEMA to
Total
undiscounted
costs
Discounted
7%
........................
3%
5,274
4,513
refine its focus and resources on larger
incidents without the complications of
reallocating response resources from
multiple smaller-scale commitments,
that States and local governments would
have the capacity to manage without
Federal assistance. FEMA requests
public comment on the ability of
Applicants to invest more in response,
recovery, and mitigation capabilities.
Summary
Table 6 provides a summary of the
annual and total quantified costs, cost
savings, and reduction in transfers by
category after implementation of the
proposed rule, and Table 7 provides the
A–4 accounting summary.
TABLE 6—SUMMARY OF TRANSFERS AND COST SAVINGS OF THE PROPOSED RULE
Annual
undiscounted
Transfer, cost, or cost savings item
Reduction in Transfers
PA Funding ...................................................................................................................................................................................
HMGP Funding .............................................................................................................................................................................
BRIC Funding ...............................................................................................................................................................................
PA Management Cost Funding ....................................................................................................................................................
HMGP Management Cost ............................................................................................................................................................
Funding
BRIC Management Cost Funding ................................................................................................................................................
Total Reduction in Transfers .................................................................................................................................................
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Cost Savings
Applicant Paperwork Cost Savings ..............................................................................................................................................
FEMA Administrative Cost ...........................................................................................................................................................
Savings
FEMA Paperwork Cost Savings ...................................................................................................................................................
Total FEMA Cost Savings ............................................................................................................................................................
$144,534,939
33,330,171
7,267,390
17,344,193
4,999,526
1,282,481
208,758,700
8,035,714
62,409,381
300,672
62,710,053
Total Cost Savings (Applicants and FEMA) .........................................................................................................................
70,745,767
Costs
Applicant Costs.
Year 1 ....................................................................................................................................................................................
Years 2–10 ............................................................................................................................................................................
FEMA Costs .................................................................................................................................................................................
39,545
0
12
Total Costs, Year 1 ...............................................................................................................................................................
Total Costs, Years 2–10 .......................................................................................................................................................
39,557
12
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TABLE 7 A–4 ACCOUNTING STATEMENT
[$2018]
Period of Analysis: 2008 to 2017
Category
7 percent discount
rate
3 percent discount
rate
BENEFITS:
Annualized Quantified .........................................................................
N/A
N/A
Qualitative ............................................................................................
COSTS:
Annualized Monetized $millions/year ..................................................
0.005274
0.004513
Annualized quantified .................................................................................
N/A
N/A
Qualitative ............................................................................................
RIA Section 12.
RIA Section 8.
• Applicants would need to invest more
in response, recovery, and mitigation
capabilities.
• Damaged facilities may not be
repaired or replaced, and could be
susceptible to future disasters.
COST SAVINGS:
Annualized Monetized $millions/year ..................................................
70.75
70.75
RIA Section 8.
TRANSFERS:
Annualized Monetized $millions/year ..................................................
208.76
208.76
RIA Section 9.
From/To ...............................................................................................
Reduction in transfers from FEMA to
PA Applicants
RIA Section 9.
Effects
Source citation
(RIA, preamble, etc.)
State, Local, and/or Tribal Government .....................................................
Included in the Cost Savings is $5.88
million annual paperwork cost savings
to Applicants. Included in the Transfers
is $8.48 million in PA funding that
Tribal Applicants would not have
received from 2008–20187. However,
$7.11 of that funding would have
potentially been available for Tribal
governments had that requested a
disaster declaration under the Tribal
Declarations Pilot Guidance.
RIA.
Small business ............................................................................................
There were 7,456 unique Applicants for
the 159 removed PA disasters from
2008–2017. Using a sample size of
380, FEMA found that 79% were likely
to be small entities (5,890 Applicants).
The average PA funding received per
small entity in the sample was
$168,046, with a range from a low of
$0 to a high of $20.65 million. If the
changes in the proposed rule were in
effect, these entities would not have
received this PA funding.
RFA (IRFA).
Wages .........................................................................................................
None.
Growth ........................................................................................................
None.
Category
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• Provide FEMA with a more accurate
assessment of whether an incident
exceeds Applicant capabilities.
• Allow FEMA to focus efforts and
resources on larger incidents.
• Provide better distribution of
responsibilities between Applicants and
the Federal Government.
Source citation
(RIA, preamble, etc.)
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B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) requires agency
review of proposed and final rules to
assess their impact on small entities.
When an agency promulgates a notice of
proposed rulemaking under 5 U.S.C.
553, the agency must prepare an initial
regulatory flexibility analysis (IRFA)
unless it determines and certifies
pursuant to 5 U.S.C. 605(b) that a rule,
if promulgated, would not have a
significant impact on a substantial
number of small entities. However,
FEMA is publishing this IRFA to aid the
public in commenting on the potential
small entity impacts of the proposed
requirements in this NPRM. FEMA
invites all interested parties to submit
data and information regarding the
potential direct economic impacts on
small entities that would result from the
adoption of this NPRM. FEMA will
consider all comments received in the
public comment process.
In accordance with 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 prepared this IRFA to examine
the impacts of the proposed rule on
small entities. A small entity may be: A
small independent business, defined as
independently owned and operated, is
organized for profit, and is not
dominant in its field per the Small
Business Act (5 U.S.C. 632); a small notfor-profit organization (any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field); or a small
governmental jurisdiction (locality with
fewer than 50,000 people) per 5 U.S.C.
601–612.
FEMA has discussed most of these
issues in other sections of the NPRM
and in the stand-alone RIA found in the
docket of this rulemaking. In this
section, FEMA will address the issues
specific to the analysis of small entities
that have not been addressed elsewhere.
1. A description of the reasons why
action by the agency is being
considered.
FEMA is proposing to amend the
estimated cost of the assistance factor,
including the minimum threshold, in 44
CFR 206.48. Pursuant to 44 CFR 206.48,
FEMA considers several factors when
determining whether to recommend that
the President declare a major disaster
authorizing the PA program. Since 1986,
FEMA has evaluated the estimated cost
of Federal and non-Federal public
assistance against the statewide
population and used a per capita dollar
amount (set at $1 in 1986) as an
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indicator that a disaster may warrant
Federal assistance. FEMA did not
increase the indicator until 1999, when
it began adjusting for inflation in 1999
and annually thereafter. Also, in 1999,
FEMA established a $1 million
minimum threshold, meaning it would
not recommend that the President
authorize the PA program unless there
was at least $1 million in PA damage,
which FEMA believed was a level of
damage even the least populous States
could handle with their own resources.
FEMA has never increased this
threshold. The current per capita
indicator and minimum threshold do
not provide an accurate measure of
States’ capabilities to respond to
disasters. The lack of increases to the
per capita indicator from 1986 to 1999
undercut the value of this factor as an
indicator of State capacity given the
inflation increases during that time.
With respect to the minimum threshold,
a 1999 determination by FEMA that all
States could handle at least $1.0 million
in damages with their own resources is
outdated given the 53.5 percent increase
from 1999 in the inflation rate over the
last 20 years and rising State budgets
and expenditures.113
Additionally, FEMA proposes to use
the U.S. Census Bureau’s annual
population estimates produced under
the PEP instead of the decennial census
population data when calculating the
State COA indicators. These changes
would ensure a more accurate
assessment of an individual State’s
financial capability to respond to and
recover from a disaster, which would
better enable FEMA to achieve its
readiness and preparedness missions by
allowing FEMA to expend more
attention and resources on disasters that
exceed the States’ capabilities.
2. A succinct statement of the
objectives of, and legal basis for, the
proposed rule.
Section 1239 of DRRA directs FEMA
to review the factors it considers when
evaluating a request for a major disaster
declaration, specifically the estimated
cost of assistance factor, and to initiate
rulemaking to update the declaration
factors. FEMA proposes to amend 44
CFR 206.48(a) to make changes to the
estimated cost of assistance factor.
FEMA is proposing to revise the cost
of assistance estimates factor in 44 CFR
206.48(a)(1) by increasing the per capita
indicator to account for inflation from
1986 to 1999 and adjusting the
individual States’ indicators by their
TTR, and by increasing the minimum
113 January 1999 CPI–U of 164.3 and August 2018
CPI–U of 252.146. Calculation: (252.146¥164.3)/
164.3 = 53.5% (rounded).
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threshold by accounting for inflation
from 1999 to 2019, and annually
thereafter. FEMA also proposes to use
the U.S. Census Bureau’s annual
population estimates produced under
PEP instead of the decennial census
population data. These changes would
provide FEMA with a better informed
and more accurate assessment of
whether an incident has exceeded State
capabilities when it makes its
recommendations to the President;
incentivize States to invest more in
response, recovery, and mitigation
capabilities, which would provide a
better distribution of responsibilities
between the States and the Federal
Government and better overall national
preparedness for disasters; and the
associated reductions in declarations of
smaller incidents would allow FEMA to
better focus its efforts and resources on
large disasters without the
complications of reallocating resources
from multiple smaller-scale
commitments.
3. A description of and, where
feasible, an estimate of the number of
small entities to which the rule will
apply.
The proposed rule directly affects all
Applicants that are eligible to request
PA under a Federal major disaster
declaration authorizing PA. Eligible
Applicants for PA include: State and
Territorial governments, including the
District of Columbia, American Samoa,
the Commonwealth of the Northern
Mariana Islands, Guam, Puerto Rico,
and the U.S. Virgin Islands; federally
recognized Indian Tribal Governments,
including Alaska Native villages and
organizations; local governments; and
certain private nonprofits.114
FEMA reviewed the PA disasters that
it identified that likely would not have
been declared from 2008–2017 due to
the proposed rule, as presented in Table
8–1 in Section 8 of the stand-alone RIA
found in the docket of this rulemaking,
to estimate the number of small entities
to which the proposed rule would
apply. For each of the 159 PA disasters
removed, FEMA used PA data in
FEMA’s Enterprise Data Warehouse
(EDW) database to identify the
Applicants for each of the PA disasters.
114 To be an eligible private nonprofit applicant,
the private nonprofit must show that it has: A
current ruling letter from the U.S. Internal Revenue
Service granting tax exemption under sections
501(c), (d), or (e) of the Internal Revenue Code of
1954, or documentation from the State
substantiating it is a non-revenue producing,
nonprofit entity organized or doing business under
State law. Additionally, prior to determining
whether the private nonprofit is eligible, FEMA
must first determine whether the private nonprofit
owns or operates an eligible facility.
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FEMA found there were 7,456 unique
Applicants for the 158 PA disasters.
FEMA selected a random sample of
383 Applicants from the 7,456 unique
Applicants to estimate the percentage
that are small entities.115 The term
‘‘small entities’’ includes small
businesses that meet the Small Business
Administration (SBA) size standard for
small business concerns at 13 CFR
121.201, not-for-profit organizations that
are independently owned and operated
and are not dominant in their fields, and
governmental jurisdictions with
population of less than 50,000. FEMA
researched and found data and
information on 383 randomly sampled
Applicants. FEMA found that of the 383
Applicants, 25 were classified as State
governments, 312 were local
governments, 3 were Tribal
governments, and 43 were nonprofits.
FEMA removed the 3 Tribal
governments from the sample as they
are sovereign entities and are not
covered by the RFA. State governments
are not considered small entities
because they have populations greater
than 50,000. For the Applicants
classified as local governments, FEMA
used 2010 decennial Census Bureau
population data to determine the
Applicant population size. Of the 312
local governments, 259 (or 83 percent)
80737
had populations below 50,000 and
would be considered as small entities.
For nonprofit Applicants, FEMA
reviewed the nonprofit’s website
utilizing an open source database
(Manta.com) and any other publicly
available information to determine the
size of the nonprofit and ownership.
FEMA researched the 43 private
nonprofits and found that all of them
were independently owned and
operated and are not dominant in their
field. Therefore, FEMA assumed all 43
private nonprofits were likely to be
small entities. Table 8 summarizes the
findings of the small entity threshold
analysis.
TABLE 8—SUMMARY OF APPLICANTS IN SAMPLE
Exceed
small entity
threshold
Type of recipient or subrecipient
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State Government ........................................................................................................................
Local Government .......................................................................................................................
Private Nonprofits ........................................................................................................................
Total .............................................................................................................................................
Percentage ...................................................................................................................................
25
53
0
78
21%
Below
small entity
threshold
0
259
43
302
79%
Total
25
312
43
380
100%
Of the 380 Applicants, FEMA found
that 302 entities were small as defined
by the SBA thresholds. Therefore,
FEMA estimates that 79% of the total
7,456 Applicants of PA were small
entities (5,890 Applicants were small
entities). The 302 sampled small entities
received a total of $50.75 million in PA
funding for the disasters removed from
2008–2017 according to FEMA’s EDW
database. If the changes in the proposed
rule were in effect, these entities would
not have received this PA funding. The
average PA funding received per small
entity in the sample was $168,046 over
the 10-year period. The PA funding a
small entity received ranged from a low
of $0 to a high of $20.65 million. Of the
302 small entities, 4 received $0 in PA
funding. FEMA welcomes any data or
comments from the public on the
number of small entities that may be
impacted by this proposed rule an any
impacts to those small entities.
4. A description of the projected
reporting, recordkeeping and other
compliance requirements of the
proposed rule, including an estimate of
the classes of small entities which will
be subject to the requirement and the
type of professional skills necessary for
preparation of the report or record.
The proposed rule would call for a
revision of a collection of information
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3520). This
proposed rule would call for
amendments to the existing collection
requirements previously approved
under the collections of information
(COI) with OMB Control Numbers
1660–0009 and 1660–0017.116 The costs
associated with COI 1660–0009 include
the time and cost burden for an
Applicant to request a disaster
declaration. A request for a disaster
declaration comes from the State level.
There is no burden for small entities
included in COI 1660–0009, as the
burden to complete FEMA form 010–0–
13 is completed by the equivalent of a
State Government Chief Executive and a
State Administrative Support Worker.
Therefore, there is no paperwork burden
impact to small entities for COI 1660–
0009.
The costs associated with COI 1660–
0017 include the time and cost burden
for Applicants to provide FEMA
information that is required for PA
program eligibility determinations,
grants management, and compliance
with other Federal laws and regulations.
For the 159 PA disasters removed from
2008–2017 from this proposed rule,
there would be a reduction in
paperwork burden for Applicants that
applied for the PA program, as covered
by COI 1660–0017. There would be a
reduction in respondents for FEMA
Forms 009–0–49, 009–0–91, 009–0–91A,
009–0–91B, 009–0–91C, 009–0–91D,
009–0–120, 009–0–121, 009–0–123,
009–0–124, 009–0–125, 009–0–126,
009–0–127, 009–0–128, and 009–0–141.
The number of respondents would not
change for FEMA Form 009–0–111,
State Administrative Plan and State
Plan Amendments (no form), Request
for Appeals and Recommendation (no
form), and Requests for Arbitration and
Recommendation resulting from
Hurricanes Katrina or Rita (no form), as
these forms are not impacted by the
proposed rule.
The burden per response varies by
form (see Table 9 in Section E,
Paperwork Reduction Act of 1995). The
number of forms each Applicant fills
out varies by Applicant and by disaster.
If an Applicant fills out every form
impacted by this proposed rule, the
maximum burden per Applicant is 11.4
115 FEMA used Slovin’s formula to determine the
sample size. Using a 95 percent confidence interval,
a sample size of 380 recipients and subrecipients is
sufficient. Slovin’s formula = N/(1+Ne∧2) = 7,456/
(1 + 7,456 * (0.05∧2)) = 379.633, rounded up to 380.
116 ‘‘Public Assistance Program’’, 1660–0017 can
be found at https://www.reginfo.gov/public/do/
PRAViewICR?ref_nbr=201902-1660-001. The most
recently approved ICR at the time of this analysis
was ICR Reference Number 201902–1660–001. ‘‘The
Declaration Process: Requests for Preliminary
Damage Assessment (PDA), Requests for
Supplemental Federal Disaster Assistance, Appeals,
and Requests for Cost Share Adjustments’’, 1660–
0009 can be found at https://www.reginfo.gov/
public/do/PRAViewICR?ref_nbr=201905-1660-003.
The most recently approved ICR at the time of this
analysis was ICR Reference Number 201905–1660–
003.
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hours (found using the ‘‘Average Hourly
Burden’’ column in Table 9, excluding
those forms or items not impacted by
the proposed rule). Therefore, small
entities would have a maximum
reduction of 11.4 hours of paperwork
burden for each PA disaster removed
due to the proposed rule. FEMA
previously estimated that 79% of the
total 7,456 Applicants of PA for the 159
removed PA disasters were small
entities (5,890 Applicants were small
entities). If all 5,890 small entity
Applicants had filled out every form
impacted by the proposed rule, there
would have been a reduction in
paperwork burden of 67,146 hours
(5,890 small entities × 11.4 hours) from
2008–2017. There are no additional
reporting, recordkeeping, or other
compliance requirements resulting from
this proposed rule.
5. An identification, to the extent
practicable, of all relevant Federal rules
which may duplicate, overlap or conflict
with the proposed rule.
There are no relevant Federal rules
that may duplicate, overlap, or conflict
with this proposed rule.
6. A description of any significant
alternatives to the proposed rule which
accomplish the stated objectives of
applicable statutes and which minimize
any significant economic impact of the
proposed rule on small entities.
FEMA considered several alternatives
to the proposed changes to the per
capita indicator and the minimum
threshold. The alternatives are
described in more detail in Section 15
of the stand-alone RIA found in the
docket of this rulemaking. Because PA
is approved at the State level, this
proposed rule would only directly affect
States. Small entities would be
indirectly affected by a reduction in
declared disasters at the State level, but
FEMA is unable to address the impacts
to small entities directly. A summary of
those alternatives follows.
FEMA considered two alternatives to
adjusting the per capita indicator:
adjusting the per capita indicator by
PCPI and adjusting the per capita
indicator by PCPI and then adjusting by
TTR. The preliminary estimate for 2018
US PCPI is $53,712.117 FEMA
established the per capita indicator at $1
in 1986 based on the 1983 US PCPI,
which was the latest available published
information at the time. The PCPI used
to set the original per capita indicator
117 State Annual Personal Income, 2018
(Preliminary) and State Quarterly Personal Income,
4th Quarter 2018, Table 1: Personal Income,
Population, and Per Capita Personal Income, by
State and Region, 2017–2018, https://www.bea.gov/
system/files/2019-03/spi0319.pdf.
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was $11,687.118 PCPI increased by 360
percent from 1983 to 2018 (($53,712–
$11,687)/$11,687). FEMA used the PCPI
estimate of $11,687 from the 1986
proposed rulemaking as this was the
data FEMA used to set the original per
capita indicator. Applying the increase
in PCPI to the original per capita
indicator of $1 would result in a per
capita indicator of $4.60. The per capita
indicator alternatives resulted in per
capita indicators that were higher than
the proposed changes, which would
result in more PA disasters that would
not have exceeded the proposed
thresholds from 2008–2017. Fewer PA
disasters would result in more small
entities impacted by the proposed rule,
since fewer declared disasters would
lead to a reduction in Public Assistance
provided to local governments and
Private Non-Profits within each State.
FEMA rejected the PCPI-based per
capita indicator thresholds because
FEMA believed the resulting per capita
indicators may be too high for some
States to meet. Moreover, the potentially
large changes to PCPI from year to year,
in comparison to changes to the CPI–U,
could result in instability and
uncertainty in what the per capita
indicator may be each year for
individual States and make it more
difficult for States to plan.
FEMA considered four alternatives to
adjusting the minimum threshold using
CPI–U: Using the change in GDP, State
expenditures, or TTR to adjust the
minimum threshold, or using FEMA
administrative costs to calculate a
minimum threshold for which FEMA’s
administrative burden exceeded the
amount of Federal assistance provided.
The minimum threshold alternatives
resulted in minimum thresholds that
were higher than the proposed
minimum threshold and would have led
to a 1 percent increase in the PA
disasters that would not have exceeded
the thresholds. Fewer PA disasters
could result in more small entities
impacted by the proposed rule. FEMA
rejected adjusting the minimum
threshold using the change in GDP,
State expenditures, or TTR because the
alternatives increase the complexity of
calculating the threshold, but have little
additional impact on the reduction in
total PA disasters.
118 Disaster Assistance; Subpart C, the Declaration
Process and State Commitments, 51 FR 13333, Apr.
18, 1986, found at https://cdn.loc.gov/service/ll/
fedreg/fr051/fr051075/fr051075.pdf. FEMA began
using $1 per capita informally in 1986. Revisions
were made to the BEA 1983 PCPI after publication
of the proposed 1986 rule. FEMA used the PCPI of
$11,687 to maintain consistency with the data used
at the time of establishing the per capita indicator.
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FEMA rejected using administrative
costs to calculate a minimum threshold
because FEMA was unable to derive a
specific dollar value of estimated PA
obligations at which the proportion of
administrative costs relative to PA
obligations could justify that a
prospective minimum threshold be set
at that amount. Based on FEMA’s
analysis of available information across
all PA disasters in the past ten years,
there is no specific size of PA disaster
at which point administrative costs
exceed the amount of PA assistance, or
where excessive administrative costs
essentially renders such PA assistance
ineffectual from a Federal cost
standpoint.
FEMA considered the following two
alternatives that would have a smaller
impact on small entities.
(a) No Regulatory Action
FEMA considered not proposing the
minimum threshold and per capita
indicator regulatory changes in this
proposed rule. FEMA rejected this
alternative because section 1239 of the
DRRA directs FEMA to review the
factors it considers when evaluating a
request for a major disaster declaration,
specifically the estimated cost of
assistance factor, and to initiate
rulemaking to update the declaration
factors. Additionally, the lack of
increases to the per capita indicator
from 1986 to 1999 undercuts the value
of this factor as an indicator of State
capacity given the increases in inflation
during that time. For the minimum
threshold, the lack of an increase since
1999 has prevented this factor from
keeping pace with inflation, and rising
State budgets and resources. By not
proposing the per capita indicator and
minimum threshold regulatory changes
in the proposed rule, FEMA would be
relying upon per capita indicator and
minimum threshold factors that are no
longer adequate measures of a State’s
capability to respond to and recover
from a disaster. The no regulatory action
alternative would result in a greater
likelihood that the President declares
major disaster declarations for relatively
small incidents that a more accurate
assessment would find is within a
State’s financial capabilities to respond
to on its own.
(b) Population Alternative
FEMA considered continuing to use
the US Census Bureau’s decennial
census population estimates instead of
the proposed PEP annual estimates.
FEMA found that using the decennial
populations instead of the PEP annual
estimates would have resulted in a
reduction of 148 PA disasters from
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2008–2017, an average of 15 per year.
This is a difference of 10 disasters from
when FEMA used the proposed PEP
annual populations in the analysis. This
difference was a result of the States
having a higher population with the PEP
annual population estimates compared
to the decennial population, and
therefore a higher State COA indicator.
FEMA rejected this alternative
because FEMA’s reliance on population
data from the most recent decennial
survey can lead to an imprecise
assessment of a State’s capabilities to
respond to and recover from a disaster
on its own. Decennial population data
can lead to an inaccurate per capita
indicator for States experiencing rapid
changes in population. This could result
in a greater likelihood that the President
declares major disaster declarations for
relatively small incidents that are
within a State’s financial capabilities to
respond to on its own after it has
experienced rapid population growth,
or, conversely, a likelihood that the
President does not declare major
disaster declarations for incidents that
may actually exceed a State’s
capabilities to respond to on its own
where that State’s population has
rapidly decreased.
More detailed information on the
alternatives can be found in Section 15
of the stand-alone RIA found in the
docket of this rulemaking.
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7. Conclusion
FEMA is interested in the potential
impacts of the proposed rule on small
entities and requests public comment on
these potential impacts. If you think that
this rule will have a significant
economic impact on you, your business,
or your organization, please submit a
comment to the docket at the address
under ADDRESSES in the rule. In your
comment, explain why, how, and to
what degree you think this rule will
have an economic impact on you. FEMA
is also interested in less burdensome
alternatives for small entities. If you
know of less burdensome alternatives,
please include them in your comment.
C. Unfunded Mandates Reform Act of
1995
Pursuant to Section 201 of the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 2 U.S.C. 1531), each
Federal agency ‘‘shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law).’’ Section 202 of the Act (2 U.S.C.
1532) further requires that ‘‘before
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promulgating any general notice of
proposed rulemaking that is likely to
result in the promulgation of any rule
that includes any Federal mandate that
may result in expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$100 million or more (adjusted annually
for inflation) in any one year, and before
promulgating any final rule for which a
general notice of proposed rulemaking
was published, the agency shall prepare
a written statement’’ detailing the effect
on State, local, and tribal governments
and the private sector. FEMA has
determined that this proposed rule can
be excluded from this assessment as the
proposed 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 government.’’ Therefore,
no actions are deemed necessary under
the provisions of the Unfunded
Mandates Reform Act of 1995.
D. National Environmental Policy Act of
1969 (NEPA)
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 proposed rule
amends an existing regulation without
changing its environmental effect,
which meets Categorical Exclusion
A3(d). This proposed rule is a narrowly
crafted revision to FEMA’s existing
regulations updating the criteria that
FEMA considers when recommending
an area eligible for PA under a major
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disaster declaration. The proposed rule
is not part of any larger regulatory
action. Further, there are no
extraordinary circumstances present
that would create the potential for a
significant environmental impact.
Therefore, each of the conditions for
application of categorical exclusion
A3(d) is satisfied, and this action is
categorically excluded from further
NEPA review.
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
Under the Paperwork Reduction Act
of 1995, as amended, 44 U.S.C. 3501–
3520, an agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless the agency obtains approval from
the Office of Management and Budget
(OMB) for the collection and the
collection displays a valid OMB control
number. See 44 U.S.C. 3506, 3507. This
rulemaking contains a collection of
information, as defined by the
Paperwork Reduction Act of 1995, as
amended, 44 U.S.C. 3501–3520. This
action contains proposed amendments
to the existing information collection
requirements previously approved
under OMB Control Number 1660–0009
and 1660–0017. As required by the
Paperwork Reduction Act of 1995,
FEMA has submitted these proposed
collection amendments to OMB for its
review.
Collection of Information Number
1660–0009
Title: The Declaration Process:
Requests for Preliminary Damage
Assessment (PDA), Requests for
Supplemental Federal Disaster
Assistance, Appeals, and Requests for
Cost Share Adjustments.
OMB Control Number: 1660–0009.
Type of information collection:
Revision of a currently approved
collection.
Form Numbers: FEMA Forms 010–0–
13 and 009–0–140 (used by FEMA
personnel or contractors only).
Summary of the Collection of
Information: 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 using
FEMA Form 010–0–13. The information
obtained by joint Federal, State, and
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local preliminary damage assessments is
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 and a copy of the
Governor’s request to the President. 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.
Need for Information: The Stafford
Act requires that all requests for a major
disaster or emergency declaration be
made by the Governor of the affected
State or the Chief Executive of an
affected Indian tribal government.
Section 401(a) of the Stafford Act
stipulates that such a request shall 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 government, and that Federal
assistance is necessary. Section 401(a)
further stipulates that as a part of such
request, and as a prerequisite to major
disaster assistance under the Stafford
Act, the Governor shall take appropriate
response action under State law and
direct the execution of the State’s
emergency plan and shall furnish
specific information that must be
included in a request for a major
disaster declaration. Section 401(a)
stipulates that the request must include
specific information on the nature and
amount of State and local resources
which have been or will be committed
to alleviate the results of the disaster.
Section 501(a) requires the same
information to be provided in requests
for declarations of an emergency.
Use of Information: This collection
includes FEMA Form 010–0–13,
Request for Presidential Disaster
Declaration Major Disaster or
Emergency, which asks for the same
data that were stated and required in the
previous narrative Governor’s requests
to the President requesting
supplemental Federal assistance,
through the appropriate Regional
Administrator, combined with the
findings of a joint FEMA, State and local
Preliminary Damage Assessment (PDA).
The PDA is analyzed and provides the
basis for a Regional Summary, Analysis,
and Recommendation, which is
submitted to the Assistant
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Administrator of the Disaster Assistance
Directorate. The information is reviewed
and evaluated, and the Administrator
formulates a recommendation which is
submitted to the President for
consideration of a disaster or emergency
declaration. The FEMA form eliminates
the need for follow-up communications
and reporting during a declaration
request.
Description of the Respondents: State,
local, or Tribal government.
Number of Respondents: The current
OMB-approved number of respondents
is 623 per year. The proposed
rulemaking would not impact the
number of respondents.
Number of Responses: FEMA
estimates the number of responses
would be 340 per year. This is a
decrease of 16 responses from the OMBapproved number of responses of 356
per year.
Burden of Response: For each
response, FEMA estimates it takes 9
hours to complete FEMA Form 010–0–
13. In addition, FEMA estimates it takes
24.126 hours to gather information for
the FEMA Form 010–0–13. The total
burden for each response is 33.126
hours
Estimate of Total Annual Burden: The
previously approved total annual
burden was 11,792.8 hours. FEMA
estimates that the number of responses
would decrease by 16 per year. At
33.126 hours per response, the reduced
burden for submitting the responses
would be 530 hours (rounded). Based on
the proposed rule’s decrease in burden,
the new estimated total annual burden
is 11,262.8 hours.
Collection of Information Number
1660–0017
Title: Public Assistance Program,
OMB Control Number: 1660–0017,
Type of information collection:
Revision of a currently approved
collection.
Form Numbers: FEMA Forms 009–0–
49, 009–0–91, 009–0–91A, 009–0–91B,
009–0–91C, 009–0–91D, 009–0–111,
009–0–120, 009–0–121, 009–0–123,
009–0–124, 009–0–125, 009–0–126,
009–0–127, 009–0–128, 055–0–0–1, and
009–0–141.
Summary of the Collection of
Information: The Stafford Act
authorizes grants to assist State, tribal,
and local governments and certain
Private Non-Profit entities with the
response to and recovery from disasters
following Presidentially declared major
disasters and emergencies.
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Need for Information: The
information collected is required for the
PA program eligibility determinations,
grants management, and compliance
with other Federal laws and regulations.
Title 44 CFR part 206 specifies the
information collections necessary to
facilitate the provision of assistance
under the PA program.
Use of Information: The information
collected is utilized by FEMA to make
determinations for PA grants based on
the information supplied by the
respondents.
Description of Respondents: State,
local, or tribal government.
Number of Respondents: The current
OMB-approved number of respondents
is 56 per year for FEMA Forms 009–0–
49, 009–0–91, 009–0–91A, 009–0–91B,
009–0–91C, 009–0–91D, 009–0–111,
009–0–120, 009–0–121, 009–0–123,
009–0–124, 009–0–125, 009–0–126,
009–0–127, 009–0–128, 009–0–141,
State Administrative Plan and State
Plan Amendments (no form), and
Request for Appeals and
Recommendation (no form); and 4 per
year for Requests for Arbitration and
Recommendation resulting from
Hurricanes Katrina or Rita (no form).
FEMA estimates the number of
respondents would be 40 per year, a
decrease of 16 respondents from the
OMB-approved number of responses of
56 per year, for FEMA Forms 009–0–49,
009–0–91, 009–0–91A, 009–0–91B, 009–
0–91C, 009–0–91D, 009–0–120, 009–0–
121, 009–0–123, 009–0–124, 009–0–125,
009–0–126, 009–0–127, 009–0–128, and
009–0–141. The number of respondents
would not change for FEMA Form 009–
0–111, State Administrative Plan and
State Plan Amendments (no form),
Request for Appeals and
Recommendation (no form), and
Requests for Arbitration and
Recommendation resulting from
Hurricanes Katrina or Rita (no form).
Number of Responses: The number of
responses per respondent varies by form
(see Table 9). The number of responses
per respondent (form) would not change
due to the proposed rule. The decrease
in the number of respondents for certain
forms would result in a decrease in the
total annual responses. FEMA estimates
the total annual number of responses
would be 284,564 per year. This is a
decrease of 113,504 responses from the
OMB-approved number of responses of
398,068 per year.
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TABLE 9—ESTIMATED ANNUALIZED BURDEN HOURS BY FORM
Form name/form No.
Respondents
Responses
per
respondent
Total annual
responses
Average
hourly
burden per
response
Total hourly
annual burden
FEMA Form 009–0–49, Request for Public Assistance ......
FEMA Form 009–0–91, Project Worksheet (PW) and a
Request for Time Extension .............................................
FEMA Form 009–0–91A Project Work Sheet (PW) Damage Description and Scope of Work ................................
FEMA Form 009–0–91B, Project Worksheet (PW) Cost
Estimate Continuation Sheet and Request for additional
funding for Cost Overruns ................................................
FEMA Form 009–0–91C Project Worksheet (PW) Maps
and Sketches Sheet .........................................................
FEMA Form 009–0–91D Project Worksheet (PW) Photo
Sheet ................................................................................
FEMA Form 009–0–120, Special Considerations Questions ..................................................................................
FEMA Form 009–0–128, Applicant’s Benefits Calculation
Worksheet ........................................................................
FEMA Form 009–0–121, PNP Facility Questionnaire .........
FEMA Form 009–0–123, Force Account Labor Summary
Record ..............................................................................
FEMA Form 009–0–124, Materials Summary Record ........
FEMA Form 009–0–125, Rented Equipment Summary
Record ..............................................................................
FEMA Form 009–0–126, Contract Work Summary Record
FEMA Form 009–0–127, Force Account Equipment Summary Record .....................................................................
State Administrative Plan and State Plan Amendments/No
Form .................................................................................
FEMA Form 009–0–111, Quarterly Progress Report ..........
Request for Appeals & Recommendation/No Forms ..........
Request for Arbitration & Recommendation resulting from
Hurricanes Katrina or Rita/No Form ................................
FEMA Form 009–0–141, FAC–TRAX System ....................
40
129
5,160
0.25
1,290
40
840
33,600
1.5
50,400
40
784
31,360
1.5
47,040
40
784
31,360
1.3333
41,813
40
728
29,120
1.5
43,680
40
728
29,120
1.5
43,680
40
840
33,600
0.5
16,800
40
40
784
94
31,360
3,760
0.5
0.5
15,680
1,880
40
40
94
94
3,760
3,760
0.5
0.25
1,880
940
40
40
94
94
3,760
3,760
0.5
0.5
1,880
1,880
40
94
3,760
0.25
940
56
56
56
1
4
9
56
224
504
8
100
3
448
22,400
1,512
4
40
5
913
20
36,520
3
1.25
60
45,650
Total ..............................................................................
........................
........................
284,564
126.3333
339,853
Burden of Response: The burden per
response varies by form (see Table 9).
The total burden per response varies by
respondent, with a maximum burden
per respondent of 126.3333 hours if a
respondent completes every form and
those items without forms. The burden
per response would not change due to
this rulemaking.
Estimate of Total Annual Burden: The
previously approved total annual
burden was 466,025 hours. FEMA
estimates that the number of
respondents would decrease by 16 per
year for FEMA Forms 009–0–49, 009–0–
91, 009–0–91A, 009–0–91B, 009–0–91C,
009–0–91D, 009–0–120, 009–0–121,
009–0–123, 009–0–124, 009–0–125,
009–0–126, 009–0–127, 009–0–128, and
009–0–141. Table 9 shows the resultant
change in the total annual burden by
form. Based on the proposed rule’s
decrease in burden, the new estimated
total annual burden is 339,853 hours.
This is a reduction of 126,172 hours per
year.
TABLE 9—ITEMIZED CHANGES IN ANNUAL BURDEN HOURS
Program
change
(burden
currently on
OMB Inventory)
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Data collection activity/instrument
FEMA Form 009–0–49, Request for Public Assistance ..............................................................
FEMA Form 009–0–91, Project Worksheet (PW) and a Request for Time Extension ...............
FEMA Form 009–0–91A Project Work Sheet (PW) Damage Description and Scope of Work ..
FEMA Form 009–0–91B, Project Worksheet (PW) Cost Estimate Continuation Sheet and Request for additional funding for Cost Overruns ........................................................................
FEMA Form 009–0–91C Project Worksheet (PW) Maps and Sketches Sheet ..........................
FEMA Form 009–0–91D Project Worksheet (PW) Photo Sheet ................................................
FEMA Form 009–0–120, Special Considerations Questions ......................................................
FEMA Form 009–0–128, Applicant’s Benefits Calculation Worksheet .......................................
FEMA Form 009–0–121, PNP Facility Questionnaire .................................................................
FEMA Form 009–0–123, Force Account Labor Summary Record .............................................
FEMA Form 009–0–124, Materials Summary Record ................................................................
FEMA Form 009–0–125, Rented Equipment Summary Record .................................................
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Program
change
(new)
Difference
1,806
70,560
65,856
1,290
50,400
47,040
¥516
¥20,160
¥18,816
58,537
61,152
61,152
23,520
21,952
2,632
2,632
1,316
2,632
41,813
43,680
43,680
16,800
15,680
1,880
1,880
940
1,880
¥16,724
¥17,472
¥17,472
¥6,720
¥6,272
¥752
¥752
¥376.0
¥752
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TABLE 9—ITEMIZED CHANGES IN ANNUAL BURDEN HOURS—Continued
Program
change
(burden
currently on
OMB Inventory)
Data collection activity/instrument
Difference
FEMA Form 009–0–126, Contract Work Summary Record .......................................................
FEMA Form 009–0–127, Force Account Equipment Summary Record .....................................
State Administrative Plan and State Plan Amendments/No Form ..............................................
FEMA Form 009–0–111, Quarterly Progress Report ..................................................................
Request for Appeals & Recommendation/No Forms ..................................................................
Request for Arbitration & Recommendation resulting from Hurricanes Katrina or Rita/No
Form .........................................................................................................................................
FEMA Form 009–0–141, FAC–TRAX System ............................................................................
2,632
1,316
448
22,400
1,512
1,880
940
448
22,400
1,512
¥752
¥376
0
0
0
60
63,910
60
45,650
0
¥18,260
Total ......................................................................................................................................
466,025
339,853
¥126,172
As required by 44 U.S.C. 3507(d),
FEMA will submit a copy of the
proposed rule to OMB for its review of
the collection of information.
FEMA asks for public comment on the
proposed collection of information to
help determine how useful the
information is, whether it can help
FEMA perform its functions better,
whether it is readily available
elsewhere, how accurate the estimate of
the burden of collection is, how valid
the methods for determining burden are,
how FEMA can improve the quality,
usefulness, and clarity of the
information, and how FEMA can
minimize the burden of collection.
If you submit comments on the
collection of information, submit them
both to OMB and to the Docket
Management Facility, where indicated
under the ADDRESSES section of the
proposed rule, by the date given under
the DATES section.
You are not required to respond to a
collection of information unless it
displays a currently valid control
number from OMB. Before FEMA could
enforce the collection of information
requirements in this proposed rule,
OMB would need to approve FEMA’s
request to collect this information.
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Program
change
(new)
F. Privacy Act/E-Government Act
Under the Privacy Act of 1974, 5
U.S.C. 552a, an agency must determine
whether implementation of a proposed
regulation will result in a system of
records. A ‘‘record’’ is any item,
collection, or grouping of information
about an individual that is maintained
by an agency, including, but not limited
to, his/her education, financial
transactions, medical history, and
criminal or employment history and
that contains his/her name, or the
identifying number, symbol, or other
identifying particular assigned to the
individual, such as a finger or voice
print or a photograph. See 5 U.S.C.
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552a(a)(4). A ‘‘system of records’’ is a
group of records under the control of an
agency from which information is
retrieved by the name of the individual
or by some identifying number, symbol,
or other identifying particular assigned
to the individual. An agency cannot
disclose any record which is contained
in a system of records except by
following specific procedures.
The E-Government Act of 2002, 44
U.S.C. 3501 note, also requires specific
procedures when an agency takes action
to develop or procure information
technology that collects, maintains, or
disseminates information that is in an
identifiable form. This Act also applies
when an agency initiates a new
collection of information that will be
collected, maintained, or disseminated
using information technology if it
includes any information in an
identifiable form permitting the
physical or online contacting of a
specific individual.
A Privacy Threshold Analysis for this
proposed rule was approved on May 23,
2019. Any information will be collected
in existing FEMA Form 010–0–13, 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. This form and
its contents are covered by a System of
Records Notice, DHS/FEMA/PIA–013
Grant Management Programs and notice
is provided by the DHS/FEMA–009
Hazard Mitigation Disaster Public
Assistance and Disaster Loan Programs
SORN. This rulemaking does not impact
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FEMA’s collection of PII in the disaster
declarations process and form and no
Privacy Impact Assessment or 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. Under
this Executive order, to the extent
practicable and permitted by law, no
agency shall promulgate any regulation
that has Tribal implications, that
imposes substantial direct compliance
costs on Indian Tribal governments, and
that is not required by statute, unless
funds necessary to pay the direct costs
incurred by the Indian Tribal
government or the Tribe in complying
with the regulation are provided by the
Federal Government, or the agency
consults with Tribal officials.
FEMA has reviewed this proposed
rule under Executive Order 13175 and
believes that this proposed rule would
not have a substantial direct effect on
one or more Indian tribes, on the
relationship between the Federal
Government and Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes. The
Sandy Recovery Improvement Act of
2013 requires the President when
issuing regulations to ‘‘consider the
unique conditions that affect the general
welfare of Indian tribal governments.’’
To this end, FEMA, in coordination
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with DHS, OMB and several tribes and
tribal organizations, decided to develop
the Tribal Declarations Pilot Guidance.
The guidance underwent extensive and
exhaustive tribal consultation for over 3
years, which included over 150
listening sessions across the country
and the adjudication of over 2,000
comments. Under the Tribal
Declarations Pilot Guidance, FEMA
established separate factors for
evaluating tribal governments’ requests.
These factors include (but are not
limited to) a lower minimum damage
amount for Public Assistance ($250,000)
and the elimination of a per capita
damage amount. These factors reflect
the Agency’s acknowledgement that
tribal nations have different needs and
capabilities than states. The factors
listed in the Tribal Declarations Pilot
Guidance will not be altered by this
proposed rule, as the proposed rule only
applies to States and Territories.
Additionally, as noted in the RIA, Tribal
applicants and subapplicants would
have received $10.74 million less in PA
funding between 2008 and 2017 had the
proposed rule been in effect. However,
$9 million of that funding would have
been potentially available for some of
those Tribal governments had they
requested a major disaster declaration
under the Tribal Declarations Pilot
Guidance because those Tribal
governments received more than
$250,000 in PA assistance. Therefore, it
is possible more Tribal governments
may request disaster declarations
through the Tribal Declarations Pilot
Guidance as a result of the proposed
rule. However, as discussed in the RIA,
there are many other factors that affect
whether a Tribal government requests a
declaration through the Tribal
Declarations Pilot Guidance.
The remaining $1.74 million of PA
funding that Tribal governments would
likely not have received resulted in an
average of $36,192 per project for each
of the 44 Tribal governments across the
29 disasters analyzed. While FEMA
appreciates that some Tribal
governments have limited financial
capabilities, FEMA believes most Tribal
governments could handle such costs in
responding to an event on their own.
Accordingly, FEMA does not believe
that consultation under Executive Order
13175 is necessary; however, FEMA
welcomes comments on the potential
impacts of the proposed rule on Tribal
governments. Additionally, in
accordance with the requirement in
section 1239 of the DRRA that FEMA
meaningfully consult with State, local
and Tribal governments, FEMA will
conduct additional outreach with Tribal
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government stakeholders as well as
representatives of State, regional and
local governments.
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.
FEMA has reviewed this proposed
rule under Executive Order 13132
believes that this proposed rule would
not have substantial direct effects on the
States, on the relationship between the
National Government and the States, on
the distribution of power and
responsibilities among the various
levels of government, or on the
policymaking discretion of the States,
and therefore does not have federalism
implications as defined by the Executive
order. The proposed rule substantively
affects one of several factors that FEMA
considers when determining whether to
recommend that the President declare
that a major disaster has occurred on the
basis of a governor’s request that such
a declaration be made. Importantly,
FEMA considers all of the factors in
making a decision on a
recommendation, as each disaster
request involves circumstances unique
to that disaster event, the State, and
affected communities. Moreover,
FEMA’s recommendation to the
President does not obligate the
President to agree with FEMA’s
recommendation. Rather, the President
may declare or not declare a disaster on
their own accord. Furthermore, the
proposed rule does not affect a State’s
ability or choice to request such a
declaration, since disaster declaration
requests are voluntary, and States
choose whether or not to request
Federal assistance. While FEMA hopes
that the proposed rule will encourage
States to invest more in mitigating
future disasters and their consequences,
such funding decisions are ultimately
left to the States’ discretion.
Accordingly, the proposed rule does not
have federalism implications as defined
by the Executive order.
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However, FEMA welcomes comments
on the proposed rule’s potential impacts
on States and territories, and their
relationships with the Federal
Government. Additionally, in
accordance with the requirement in
section 1239 of the DRRA that FEMA
meaningfully consult with State, local
and Tribal governments, FEMA will
conduct additional outreach with
representatives of State, regional and
local governments.
I. Executive Order 11988, Floodplain
Management, as amended
Pursuant to Executive Order 11988,
each agency is required to provide
leadership and take action to reduce the
risk of flood loss, to minimize the
impact of floods on human safety,
health and welfare, and to 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; to
ensure that its planning programs and
budget requests reflect consideration of
flood hazards and floodplain
management; and to 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
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relating to, among other things,
construction and property improvement
activities, as well as conducting Federal
programs affecting a floodplain(s). The
changes proposed in this rule would not
have an effect on floodplain
management. This proposed rule revises
the criteria that FEMA considers when
recommending a State eligible for PA
under a major disaster declaration. A
major disaster declaration
recommendation to the President is an
administrative action for FEMA’s PA
program. When FEMA undertakes
specific actions in administering PA
that may have effects on floodplain
management, FEMA follows the
procedures set forth in 44 CFR part 9 to
assure compliance with this Executive
order. This serves as the notice that is
required by the E.O..
J. Executive Order 11990, Protection of
Wetlands
Pursuant to Executive Order 11990,
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 the Executive order, 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
and long term productivity of existing
flora and fauna, species and habitat
diversity and stability, hydrologic
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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 proposed in this rule would not
have an effect on land use or wetlands.
This proposed rule revises the criteria
that FEMA considers when
recommending a State eligible for PA
under a major disaster declaration. A
major disaster declaration
recommendation to the President is an
administrative action for FEMA’s PA
program. When FEMA undertakes
specific actions in administering PA
that may have such effects, FEMA
follows the procedures set forth in 44
CFR part 9 to assure compliance with
this Executive order.
K. Executive Order 12898,
Environmental Justice
Pursuant to 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.
This rulemaking will not have a
disproportionately high or adverse effect
on minority or low-income populations.
The proposed rule substantively affects
one of several factors that FEMA
considers when determining whether to
recommend that the President declare
that a major disaster has occurred on the
basis of a governor’s request that such
a declaration be made for PA. FEMA’s
PA program provides assistance to
States, local governments, and private
non-profits in repairing, restoring, and
replacing facilities damaged by
disasters, such as buildings, roads,
bridges, and other infrastructure.
FEMA’s review of a governor’s request
for a major disaster declaration for PA
only considers the relevant factors as
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they pertain to a disaster’s impacts on
those public or eligible private nonprofit facilities covered by the PA
program. Accordingly, 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.
L. Federal Participation in the
Development and Use of Voluntary
Consensus Standards and in Conformity
Assessment Activities,’’ OMB Circular
A–119
‘‘Voluntary consensus standards’’ are
standards developed or adopted by
voluntary consensus standards bodies,
both domestic and international. These
standards include provisions requiring
that owners of relevant intellectual
property have agreed to make that
intellectual property available on a nondiscriminatory, royalty-free or
reasonable royalty basis to all interested
parties. OMB Circular A–119 directs
agencies to use voluntary consensus
standards in their regulatory actions in
lieu of government-unique standards
except where inconsistent with law or
otherwise impractical. The policies in
the Circular are intended to reduce to a
minimum the reliance by agencies on
government-unique standards.
The proposed rule does not contain a
‘‘standard’’ as defined by OMB Circular
A–119. This proposed rule revises the
criteria that FEMA considers when
recommending a State eligible for PA
under a major disaster declaration. A
major disaster declaration
recommendation to the President is an
administrative action for FEMA’s PA
program. Accordingly, an analysis
under OMB Circular A–119 is not
required.
M. Congressional Review of Agency
Rulemaking
Under the Congressional Review of
Agency Rulemaking Act (CRA), 5 U.S.C.
801–808, before a rule can take effect,
the Federal agency promulgating the
rule must submit to Congress and to the
Government Accountability Office
(GAO) a copy of the rule, a concise
general statement relating to the rule,
including whether it is a major rule, the
proposed effective date of the rule, a
copy of any cost-benefit analysis;
descriptions of the agency’s actions
under the Regulatory Flexibility Act and
the Unfunded Mandates Reform Act,
and any other information or statements
required by relevant Executive orders.
FEMA will send this rule to the
Congress and to GAO pursuant to the
CRA if the rule is finalized. The rule, as
proposed, is a ‘‘major rule’’ within the
meaning of the CRA. It will have an
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annual effect on the economy of
$100,000,000 or more, and may result in
a major increase in costs or prices for
Federal, State, or local government
agencies. It will not have significant
adverse effects on competition,
employment, investment, productivity,
innovation, or on the ability of United
States- based enterprises to compete
with foreign-based enterprises in
domestic and export markets.
List of Subjects 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, Reporting and
recordkeeping requirements.
For the reasons stated in the
preamble, the Federal Emergency
Management Agency proposes to amend
44 CFR part 206, subpart B, as follows:
PART 206—FEDERAL DISASTER
ASSISTANCE
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.
2. Revise § 206.48 introductory text
and paragraph (a) to read as follows:
■
jbell on DSKJLSW7X2PROD with PROPOSALS
§ 206.48 Factors considered when
evaluating a Governor’s request for a major
disaster declaration.
When FEMA reviews a Governor’s
request for major disaster assistance
under the Stafford Act, these are the
primary factors in making a
recommendation to the President
whether assistance is warranted. FEMA
considers other relevant information as
well.
(a) Public Assistance Program. FEMA
evaluates the following factors to
evaluate the need for assistance under
the Public Assistance Program.
(1) Estimated cost of the assistance.
FEMA evaluates the estimated cost of
Federal and non-Federal public
assistance against the statewide
population to give some measure of the
per capita impact within the State.
FEMA uses a figure of $2.32 per capita
as an indicator that the disaster is of
such size that it might warrant Federal
assistance, and will adjust this figure
annually based on the Consumer Price
Index for all Urban Consumers. With the
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exception of the District of Columbia,
the Commonwealth of Puerto Rico, U.S.
Virgin Islands, the Commonwealth of
the Northern Mariana Islands, American
Samoa, and Guam, FEMA further
adjusts each State’s per capita indicator
according to each State’s Total Taxable
Resources (TTR) as reported by the U.S.
Department of Treasury. FEMA is
establishing a minimum threshold of
$1.535 million in public assistance
damages per disaster in the belief that
FEMA can reasonably expect even the
lowest population States to cover this
level of public assistance damage.
FEMA will adjust this minimum
threshold annually based on the
Consumer Price Index for all Urban
Consumers. FEMA will publish the
adjusted figures annually in the Federal
Register.
(2) Localized impacts. FEMA
evaluates the impact of the disaster at
the county and local government level,
as well as impacts at the American
Indian and Alaskan Native Tribal
Government levels, because at times
there are extraordinary concentrations
of damages that might warrant Federal
assistance even if the statewide per
capita is not met. This is particularly
true where critical facilities are involved
or where localized per capita impacts
might be extremely high. For example,
FEMA has at times seen localized
damages in the tens or even hundreds
of dollars per capita though the
statewide per capita impact was low.
(3) Insurance coverage in force. FEMA
considers the amount of insurance
coverage that is in force or should have
been in force as required by law and
regulation at the time of the disaster,
and reduces the amount of anticipated
assistance by that amount.
(4) Hazard mitigation. To recognize
and encourage mitigation, FEMA
considers the extent to which State and
local government measures contributed
to the reduction of disaster damages for
the disaster under consideration. For
example, if a State can demonstrate in
its disaster request that a Statewide
building code or other mitigation
measures are likely to have reduced the
damages from a particular disaster,
FEMA considers that in the evaluation
of the request. This could be especially
significant in those disasters where,
because of mitigation, the estimated
public assistance damages fell below the
per capita indicator.
(5) Recent multiple disasters. FEMA
looks at the disaster history within the
last 12-month period to better evaluate
the overall impact on the State or
locality. FEMA considers declarations
under the Stafford Act as well as
declarations by the Governor and the
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80745
extent to which the State has spent its
own funds.
(6) Programs of other Federal
assistance. FEMA also considers
programs of other Federal agencies
because at times their programs of
assistance might more appropriately
meet the needs created by the disaster.
*
*
*
*
*
Pete Gaynor,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2020–27094 Filed 12–11–20; 8:45 am]
BILLING CODE 9111–23–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 385 and 391
[Docket No. FMCSA–2018–0224]
RIN 2126–AC15
Record of Violations
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking.
AGENCY:
FMCSA proposes to eliminate
the requirement that drivers operating
commercial motor vehicles (CMVs) in
interstate commerce prepare and submit
a list of their convictions for traffic
violations to their employers annually.
This requirement is largely duplicative
of a separate provision that requires
each motor carrier to make an annual
inquiry to obtain the motor vehicle
record (MVR) for each driver it employs
from every State in which the driver
holds or has held a CMV operator’s
license or permit in the past year. To
ensure motor carriers are aware of traffic
violations for a driver who is licensed
by a foreign authority rather than by a
State, that provision would be amended
to provide that motor carriers must
make an annual inquiry to each driver’s
licensing authority where a driver holds
or has held a CMV operator’s license or
permit. This change would require
motor carriers to request the MVR
equivalent from Canadian and Mexican
driver’s licensing authorities. FMCSA
expects that removing the requirement
for drivers to provide a list of their
convictions for traffic violations to their
employers annually would reduce the
paperwork burden on drivers and motor
carriers without adversely affecting
CMV safety.
DATES: Comments on this notice of
proposed rulemaking (NPRM) and
information collection must be received
on or before February 12, 2021.
SUMMARY:
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]]>Agencies
[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
[Proposed Rules]
[Pages 80719-80745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27094]
=======================================================================
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID FEMA-2020-0038]
RIN 1660-AA99
Cost of Assistance Estimates in the Disaster Declaration Process
for the Public Assistance Program
AGENCY: Federal Emergency Management Agency, Department of Homeland
Security (DHS).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Emergency Management Agency (FEMA) is proposing a
rule to substantively revise the ``Estimated cost of the assistance''
disaster declaration factor that FEMA uses to review a Governor's
request for a major disaster under the Public Assistance Program. FEMA
proposes revisions to this factor to more accurately assess the
disaster response capabilities of the 50 States, the District of
Columbia, and the U.S. territories (States), and to respond to the
direction of Congress in the Disaster Recovery Reform Act of 2018,
which requires FEMA to review its disaster declaration factors and
update them via rulemaking, as appropriate.
DATES: All comments must be submitted by February 12, 2021.
ADDRESSES: You may submit comments on this proposed rule, identified by
Docket ID FEMA-2020-0038, by the following method:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
Comments on the proposed information collections included in this
proposed rule should be submitted both to FEMA, as indicated above, and
to the Office of Information and Regulatory Affairs, Office of
Management and Budget. Comments should be identified by the appropriate
OMB Control Number(s), addressed to the Desk Officer for the Department
of Homeland Security, Federal Emergency Management Agency, and sent via
electronic mail to [email protected].
FOR FURTHER INFORMATION CONTACT: Tod Wells, Deputy Director of Public
Assistance, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472, 202-646-3936, [email protected].
SUPPLEMENTARY INFORMATION:
I. Public Participation
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 https://www.regulations.gov, and will include any
personal information you provide. Therefore, submitting this
information makes it public. You may wish to read the Privacy and
Security Notice that is available via a link on the homepage of https://www.regulations.gov.
Viewing comments and documents: For access to the docket to read
supporting documents and comments received, go to the Federal e-
Rulemaking Portal at https://www.regulations.gov. Background documents
and submitted comments may also be inspected at FEMA, Office of Chief
Counsel, 500 C Street SW, Washington, DC 20472-3100.
II. Executive Summary
Pursuant to 44 CFR 206.48(a), FEMA considers several factors when
determining whether to recommend that the President declare a major
disaster authorizing the Public Assistance (PA) program.\1\ FEMA
proposes to amend the factor in 44 CFR 206.48(a)(1) for ``estimated
cost of the assistance,'' to raise the per capita indicator and the
minimum threshold.\2\
---------------------------------------------------------------------------
\1\ Under section 401 of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (Stafford Act) (42 U.S.C. 5170), the
President may declare that a major disaster exists after finding,
upon request by a State governor, that such disaster is beyond the
capabilities of the State and affected local governments, and that
Federal assistance is needed. FEMA receives the governor's request
and makes a recommendation to the President whether such a
declaration is warranted. See 44 CFR 206.37.
\2\ See 44 CFR 206.48(a). Other factors include: Insurance
coverage in force, hazard mitigation, and other Federal assistance
programs. Id.
---------------------------------------------------------------------------
Since 1986, FEMA has evaluated the estimated cost of Federal and
non-Federal public assistance against the statewide population and used
a per capita dollar amount (set at $1 in 1986) as an indicator that a
disaster may warrant Federal assistance. The per capita indicator
remained at $1 until 1999, when the Agency began adjusting the
indicator for inflation in 1999 and annually thereafter.\3\ Also in
1999, FEMA established a $1 million minimum threshold, meaning it would
not recommend that the President authorize the PA program unless there
was at least $1 million in damages resulting from the disaster and
within the proposed area for Public Assistance. At the time, FEMA
believed $1 million was a level of damage from which even the least
populous States could recover with their own resources. FEMA has never
increased the $1 million threshold. Additionally, FEMA also considers
impacts at the local level and recent disasters in the 12 months prior
to a declaration request to evaluate the impact to the State or
locality.
---------------------------------------------------------------------------
\3\ At the time of drafting this proposed rule, the indicator
was $1.50 in fiscal year 2019. See FEMA, Notice of Adjustment of
Statewide per Capita Impact Indicator, 83 FR 53279 (Oct. 22, 2018).
---------------------------------------------------------------------------
In the Disaster Recovery Reform Act of 2018 (DRRA), Congress
directed FEMA to give greater consideration to the recent multiple
disasters and localized impacts factors when evaluating a request for a
major disaster.\4\ Congress also directed FEMA to generally review the
factors it considers when considering a request for a major disaster,
specifically the estimated cost of assistance factor, and to update the
factors through rulemaking, as appropriate.\5\
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\4\ Sec. 1232 of Public Law 115-254, 132 Stat. 3460 (Oct. 5,
2018). However, as discussed below, FEMA does not propose to
substantively amend 44 CFR 206.48(a)(2) because that factor is
already sufficiently flexible to address the requirements of section
1232 of the DRRA.
\5\ Sec. 1239 of Public Law 115-254, 132 Stat. 3466 (Oct. 5,
2018).
---------------------------------------------------------------------------
The lack of increases to the per capita indicator from 1986 to 1999
has undercut the value of this factor as an indicator of State capacity
given the 51 percent reduction in purchasing power during that time.\6\
In addition, a State
[[Page 80720]]
fiscal capacity factor pegged to $1 per person in 1986 does not capture
more sophisticated measurements of fiscal capacity available through
consideration of a State's total taxable resources. Accordingly, the
current per capita indicator and minimum threshold do not provide an
accurate measure of States' capabilities to respond to disasters.
---------------------------------------------------------------------------
\6\ April 1986 CPI-U was 108.6 and January 1999 CPI-U was 164.3.
(164.3-108.6)/108.6 = 51.29%. See Bureau of Labor Statistics, U.S.
Department of Labor, ``Consumer Price Index, Archived Consumer Price
Index Supplemental Files'': Historical CPI-U, November 2019,
(available for download at https://www.bls.gov/cpi/tables/supplemental-files/home.htm).
---------------------------------------------------------------------------
With respect to the minimum threshold, while FEMA determined in
1999 that every State could handle at least $1 million in damages with
their own resources, that figure has also not increased with inflation
or rising State budgets and expenditures.\7\ As a result, FEMA may
recommend that the President declare major disaster declarations for
incidents that, with more accurate assessment, would be found to be
well within a State's financial capabilities to respond to on its own.
FEMA proposes to adjust these factors so that it may more closely
adhere to the law which authorizes Federal disaster assistance only
when an event ``is beyond the capabilities'' of the State and affected
local governments.\8\
---------------------------------------------------------------------------
\7\ See Government Accountability Office (GAO), Federal Disaster
Assistance: Improved Criteria Needed to Assess Eligibility and a
Jurisdiction's Capability to Respond and Recover On Its Own, GAO-12-
838 (2012); Department of Homeland Security (DHS), Office of
Inspector General (OIG), Opportunities to Improve FEMA's Public
Assistance Preliminary Damage Assessment Process, OIG-12-79 (2012).
\8\ See section 401 of the Stafford Act (42 U.S.C. 5170).
---------------------------------------------------------------------------
FEMA proposes to increase the per capita indicator to account for
increases in inflation from 1986 to 1999, and to adjust the individual
States' indicators by their total taxable resources (TTR). These
changes will allow FEMA to more accurately gauge a State's fiscal
capacity by accounting for taxable resources other than the State's
population, such as business income, undistributed corporate profits,
and out-of-state residents. FEMA also proposes to increase the minimum
threshold by accounting for inflation from 1999 to 2019, and annually
thereafter.
FEMA also proposes to use the U.S. Census Bureau's annual
population estimates produced under the Population Estimates Program
(PEP) instead of the decennial census population data produced every 10
years, which FEMA currently uses to calculate each State's Cost of
Assistance (COA) Indicator. By increasing the per capita indicator and
the minimum threshold, and using more current population data, FEMA's
recommendation to the President will be a better informed and more
accurate assessment of whether an incident exceeds State capabilities.
The resulting reduction in disaster declarations for smaller incidents
will allow FEMA to better focus its efforts and resources on larger
disasters without the complications of reallocating resources from
multiple smaller-scale commitments. Collectively, these changes would
provide a better distribution of responsibilities between the States
and the Federal Government, and will incentivize States to invest more
in response, recovery, and mitigation capabilities, and lead to a more
resilient and prepared Nation.
With respect to the recent multiple disasters and localized impacts
factors, FEMA proposes not to substantively amend 44 CFR 206.48(a)(2)
and (5). As is discussed below, these factors are already sufficiently
flexible to address the requirements of section 1232 of the DRRA. FEMA
also does not propose at this time to substantively amend the other
declaration factors at 44 CFR 206.48(a)(3) (``Insurance coverage in
force''), (4) (``Hazard mitigation''), and (6) (``Programs of other
Federal assistance'') because they already provide adequate
consideration of important information for FEMA's assessment of a
State's capabilities to respond to an event, while also providing
sufficient flexibility for FEMA to account for a variety of
circumstances across the States.
Importantly, this proposed rule will not affect FEMA's
recommendations on direct requests for a major disaster declaration
received from Tribal governments. For direct requests from Tribal
governments, FEMA relies on the Tribal Declarations Pilot Guidance and
criteria in that guidance instead of 44 CFR 206.48.\9\
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\9\ See FEMA, Tribal Declarations Pilot Guidance, available at:
https://www.fema.gov/tribal-declarations-pilot-guidance. Notice of
availability published at 82 FR 3016 (Jan. 10, 2017).
---------------------------------------------------------------------------
FEMA also proposes minor technical and corresponding grammatical
changes to 44 CFR 206.48 to ensure consistent language between the
Public Assistance declaration factors in 44 CFR 206.48(a) and the
Individual Assistance factors in 44 CFR 206.48(b).
III. Background
The Disaster Relief Act of 1974,\10\ which was amended and renamed
the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act) in 1988,\11\ formally established the foundation of the
current disaster assistance system. Generally, FEMA coordinates the
Federal Government's response to major disasters and provides various
forms of financial and direct assistance. One of the primary types of
financial assistance FEMA provides is through the PA program.\12\ FEMA
provides financial assistance to States, Tribes, Territories, and local
governments and certain private non-profit entities for debris
removal,\13\ emergency protective measures,\14\ and the repair,
restoration, and replacement of infrastructure damaged or destroyed by
a disaster event.\15\ Repair and replacement assistance, known as
``permanent work,'' helps jurisdictions to repair or replace a wide
variety of infrastructure including buildings, roads, bridges, and
sewer and water systems.
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\10\ Disaster Relief Act of 1974, Public Law 93-288 (1974).
\11\ Robert T. Stafford Disaster Relief and Emergency Assistance
Act, Public Law 100-707 (1988); Public Law 93-288 (1974), as
amended; 42 U.S.C. 5121 et seq.
\12\ See 42 U.S.C. 5172.
\13\ See 44 CFR 206.224.
\14\ See 44 CFR 206.225.
\15\ See 44 CFR 206.226.
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Before an affected jurisdiction can receive funding through the PA
program, the President of the United States must authorize it through a
declaration of a major disaster or emergency.\16\ To obtain a
declaration, the Governor must make a request through FEMA.\17\ Upon
receipt, FEMA is responsible for evaluating the Governor's request and
providing a recommendation to the President regarding its
disposition.\18\
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\16\ See 42 U.S.C. 5170b, 5192; see also 44 CFR 206.38 and
206.40.
\17\ 42 U.S.C. 5170 & 5191. The Chief Executive of an Indian
Tribal government may also request a major disaster declaration from
the President under the Tribal Declarations Pilot Guidance. FEMA,
Tribal Declarations Pilot Guidance, available at: https://www.fema.gov/tribal-declarations-pilot-guidance. Notice of
availability published at 82 FR 3016 (Jan. 10, 2017). The factors
FEMA considers when reviewing a request submitted under the Tribal
Declarations Pilot Guidance are not a part of the factors FEMA
considers under 44 CFR 206.48(a) and are outside the scope of this
proposed rulemaking.
\18\ See 44 CFR 206.37(c).
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When considering a jurisdiction's request for a major disaster
declaration authorizing the PA program, FEMA considers all relevant
information including, but not limited to, six specific factors.\19\
These specific factors are:
---------------------------------------------------------------------------
\19\ See 44 CFR 206.48(a).
---------------------------------------------------------------------------
1. Estimated cost of the assistance; \20\
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\20\ Id. at Sec. 206.48(a)(1).
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2. localized impacts; \21\
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\21\ Id. at Sec. 206.48(a)(2).
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[[Page 80721]]
3. insurance coverage in force; \22\
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\22\ Id. at Sec. 206.48(a)(3).
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4. hazard mitigation; \23\
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\23\ Id. at Sec. 206.48(a)(4).
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5. recent multiple disasters; \24\ and
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\24\ See 44 CFR 206.48(a)(5).
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6. programs of other Federal assistance.\25\
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\25\ Id. at Sec. 206.48(a)(6).
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FEMA evaluates every request with regard to each of these
delineated factors, to the extent applicable. However, there is a
strong correlation between the first factor, the estimated cost of the
assistance, and the likelihood that FEMA will recommend that the
President issue a major disaster declaration.
On October 5, 2018, the President signed the Disaster Recovery
Reform Act (DRRA).\26\ Section 1239 of the DRRA directs FEMA to review
the factors it considers when evaluating a request for a major disaster
declaration, specifically the estimated cost of assistance factor, and
to initiate rulemaking to update the declaration factors. Further,
Section 1232 of the DRRA directs the FEMA Administrator to give
``greater consideration'' to the localized impacts and recent multiple
disasters factors and to make corresponding adjustments to FEMA
policies and regulations. FEMA now proposes to amend 44 CFR 206.48(a)
to make changes to the estimated cost of assistance factor. With
respect to the recent multiple disasters and localized impacts factors,
FEMA evaluated the provision of the DRRA as well as the current factors
in regulation and determined that the regulation is sufficiently
flexible to address the DRRA requirements. On May 1, 2019, FEMA issued
guidance to Regional Administrators directing them to include in their
recommendations appropriate and fulsome information regarding severe
local impacts and the history of recent multiple disasters.\27\ As is
discussed below, FEMA requests comment on whether revisions to the
recent multiple disasters factor are necessary.
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\26\ Public Law 115-254, 132 Stat. 3438 (Oct. 5, 2018).
\27\ Memorandum for Regional Administrators from Jeff Byard,
Associate Administrator, Office of Response and Recovery,
Declaration Factors for Local Impact and Recent Multiple Disasters
(May 1, 2019).
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A. Cost of Assistance Estimates
1. Creation of the Per Capita Indicator
Pursuant to 44 CFR 206.48(a)(1), FEMA evaluates the estimated cost
of Federal and non-Federal public assistance resulting from an incident
to inform its recommendation to the President of whether an incident is
of such severity and magnitude that it is beyond the capabilities of
the State and warrants Federal assistance under a major disaster
declaration. To make this estimation, FEMA calculates the estimated
cost of assistance, generally determined from joint FEMA-State
Preliminary Damage Assessments, against the statewide population and if
the estimated per capita dollar amount exceeds $1.50 (fiscal year (FY)
2019 per capita indicator),\28\ FEMA considers this an indicator that
the incident is of such a size and magnitude that it may warrant
Federal assistance for the State under a major disaster declaration. In
other words, FEMA relies on the per capita indicator to assess the
financial impact of an incident on a State and as an indicator of
whether the State is overwhelmed and unable to effectively respond to
an event on its own.
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\28\ Since the drafting of this proposed rule, FEMA has
published the FY 2020 per capita indicator of $1.53. However, for
the purposes of this proposed rule and analysis, FEMA will continue
to discuss the FY 2019 per capita of $1.50. See FEMA, Notice of
Adjustment of Statewide per Capita Impact Indicator, 83 FR 53279
(Oct. 22, 2018).
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FEMA publishes the updated per capita indicator in the Federal
Register each year.\29\ FEMA multiplies the indicator by the impacted
State's most recent decennial population to determine the amount of
damage that a State is expected to be able to independently manage
without the need for supplemental Federal assistance (the State Cost of
Assistance (COA) Indicator). For example, if an event occurred in
FY2019 in a State with a 2010 decennial census population of 1,500,000,
FEMA would multiply that population by the $1.50 indicator and arrive
at a State COA indicator of $2,250,000.\30\ If the estimated cost of
assistance exceeds $2,250,000, FEMA would consider this a strong
indicator that the State is overwhelmed and in need of supplemental
Federal assistance.
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\29\ See, e.g., 84 FR 55324 (Oct. 16, 2019).
\30\ Per Capita Impact Indicator and Project Thresholds are
published on FEMA's website, available at https://www.fema.gov/public-assistance-indicator-and-project-thresholds.
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Although FEMA considers every request for a Presidential major
disaster declaration in light of each applicable regulatory factor, the
probability of an incident being declared a major disaster and that
incident having exceeded the State COA indicator in disaster damage
between 2005 and 2014 was over 80 percent (494 of 589 declared major
disasters).\31\ In other words, whether damage assessments find an
amount of damage that meets or exceeds the State COA indicator is
highly correlated to whether that State will ultimately receive
supplemental Federal assistance for that incident.
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\31\ 82 FR 4064, 4067 (Jan. 12, 2017).
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FEMA began informally using the per capita indicator in 1986 and
set it at $1, based on the 1983 nationwide per capita personal income
(PCPI), as $1 was determined to be a reasonable portion of PCPI for a
State to contribute towards the cost of a disaster. This amount also
correlated closely to about 0.1 percent of established General Fund
expenditures by States. With the passage of time, however, the
indicator lost its relation to both metrics upon which FEMA first
calculated it. When FEMA began using a per capita indicator of $1 in
1986, the most recent PCPI data available was 1983 PCPI, which was
$11,687.\32\ By 1999, PCPI had risen 145 percent to $28,675.\33\
Similarly, the per capita indicator also fell short of keeping pace
with State general fund expenditures. Between 1986 and 1999, the
national average increase in State general fund expenditures was 146
percent.\34\ Despite these increases in PCPI and State general fund
expenditures, FEMA did not increase the per capita indicator until
1999.
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\32\ Disaster Assistance; Subpart C, the Declaration Process and
State Commitments, 51 FR 13333, Apr. 18, 1986, found at https://cdn.loc.gov/service/ll/fedreg/fr051/fr051075/fr051075.pdf. Revisions
were made to the BEA 1983 PCPI after publication of the proposed
1986 rule. FEMA used the PCPI of $11,687 to maintain consistency
with the data used at the time of establishing the per capita
indicator.
\33\ Per Capita Personal Income (PCPI) is calculated annually by
the United States Department of Commerce's Bureau of Economic
Analysis. PCPI data is available for download at https://apps.bea.gov/regional/downloadzip.cfm: Download ``Annual Personal
Income by State'' under ``State Personal Income Accounts.''
Historical PCPI data pulled from Excel sheet titled
``SAINC1_ALL_AREAS_1929_2018.''
\34\ Compare National Association of State Budget Officers
(NASBO), 1988 State Expenditure Report, with NASBO, 2000 State
Expenditure Report (available for download at: https://www.nasbo.org/reports-data/state-expenditure-report/state-expenditure-archives). Actual fiscal total US expenditures were
$880,252 million in 1999 (found page 6 of the 2000 report) and
$358,277 million in 1986 (found page 5 of the 1988 report).
Calculation: (($880,252-$358,277)/$358,277) * 100 = 145.69 percent
(146 percent rounded).
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2. Changes to the Per Capita Indicator and Establishment of the Minimum
Threshold
In 1999, FEMA issued a rule to codify the per capita indicator at
$1 and establish, beginning in 1999, that FEMA would annually adjust
the per capita indicator for inflation based on the Consumer Price
Index for All Urban Consumers (CPI-U).\35\ This rule, along with the
failure to increase the indicator over the years, removed any remaining
association the indicator had in the past
[[Page 80722]]
with PCPI or State general fund expenditures.
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\35\ 64 FR 47697 (Sept. 1, 1999).
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In setting the per capita indicator in 1999, FEMA chose not to
retroactively account for inflation from 1986-1999.\36\ Accordingly,
FEMA did not, and to this date has not, accounted for the 51 percent
increase in the CPI-U between April of 1986 (when the per capita
indicator was first set at $1) and January of 1999 (when FEMA proposed
to adjust the per capita indicator for inflation).\37\ Consequently,
since 1999, the per capita indicator has risen to its FY 2019 value of
$1.50, rather than $2.32, which would be the value of the per capita
indicator had FEMA accounted for inflation between 1986 and 1999.\38\
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\36\ In 1998, FEMA considered adjusting the per capita indicator
to $1.51 to account for inflation since 1986, but because of input
from state emergency management officials, FEMA decided not to do
so. See GAO, GAO 12-838.
\37\ See Historical CPI-U, April 2019 (available for download at
https://www.bls.gov/cpi/tables/supplemental-files/home.htm). CPI-U
in April 1986 was 108.6, CPI-U in January 1999 was 164.3. (164.3-
108.6)/108.6 = 51.23%.
\38\ FEMA, Notice of Adjustment of Statewide per Capita Impact
Indicator, gave notice that the statewide per capita impact
indicator increased to $1.50 for all disasters declared on or after
October 1, 2018. 83 FR 53279 (Oct. 22, 2018). FEMA calculated
inflation from between 1986 and 1999 by using the CPI-U from April
1986 to August 2018. Calculation: ((August 2018 CPI-U (252.146)--
April 1986 CPI-U (108.6))/April 1986 CPI-U (108.6)) + $1 = $2.32
(rounded). FEMA uses the latest available month of CPI-U data to
adjust the minimum threshold and per capita indicator each fiscal
year, which is generally August CPI-U data. August 2018 CPI-U data
was the latest available data when FEMA established the FY2019 per
capita indicator and is used in this analysis to maintain
consistency with FEMA practice.
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Also, in 1999, FEMA established, through regulation, a $1 million
minimum threshold for any PA major disaster, regardless of the
calculated State COA indicator.\39\ FEMA set the threshold at $1
million because it believed that even the lowest population States
could reasonably be expected to cover this level of public assistance
damage.\40\ Importantly, FEMA did not subject the $1 million floor to
adjustments for inflation. FEMA has never raised the $1 million
threshold.
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\39\ 44 CFR 206.48(a)(1).
\40\ FEMA, Disaster Assistance; Factors Considered When
Evaluating a Governor's Request for a Major Disaster Declaration, 64
FR 47697 (Sept. 1, 1999).
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3. Criticism of the Current Cost of Assistance Estimates Factor
In recent years, the Government Accountability Office (GAO),\41\
the Department of Homeland Security Office of Inspector General (DHS
OIG),\42\ and Congress,\43\ have criticized and called for changes to
the way FEMA considers the estimated cost of assistance for a disaster.
For example, the GAO found that the PA per capita indicator is
artificially low because it does not reflect the rise in PCPI since
1986, or 13 years of inflation from 1986 to 1999, resulting in
recommendations to the President that do not comprehensively assess a
jurisdiction's capability to respond to and recover from a disaster on
its own.\44\ Similarly, the DHS OIG found that roughly one-third of
FEMA-State Preliminary Damage Assessments used to estimate the damage
of a given event would not have exceeded the States' COA indicators if
the per capita indicator had been indexed to the Consumer Price Index
since 1983.\45\ Both GAO and the DHS OIG recommended that FEMA develop
and implement a methodology that provides a better reflection of
current economic conditions and a more comprehensive assessment of a
jurisdiction's capability to respond and recover from a disaster
without Federal assistance in order to decrease the frequency of
disaster declarations and transfer some costs back to State and local
jurisdictions.\46\ Additionally, GAO and the DHS OIG recommended that
FEMA supplement the per capita indicator with more complete data on a
jurisdiction's financial resources (i.e., its tax base), such as TTR,
in order to obtain a more comprehensive assessment of the
jurisdiction's ability to respond to a disaster on its own.\47\
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\41\ See, e.g., GAO, Disaster Assistance: Improvements Needed in
Disaster Declaration Criteria and Eligibility Assurance Procedures,
GAO 01-837 (2001); See also, GAO, GAO-12-838 at 29.
\42\ See DHS OIG, OIG-12-79 at 3.
\43\ See, e.g., S.1960, Fairness in Federal Disaster
Declarations Act of 2014, 113th Cong.; H.R. 3925, Fairness in
Federal Disaster Declarations Act of 2014, 113th Cong. (establishing
criteria for FEMA to incorporate in rulemaking with specific
weighted factors); H.R. 1859, Disaster Declaration Improvement Act
of 2013, 113th Cong. (requiring new regulations concerning major
disaster declarations).
\44\ GAO, GAO-12-838 at 48.
\45\ DHS OIG, OIG-12-79 at 7.
\46\ GAO, GAO 12-838 at 48-49; See also DHS OIG, OIG-12-79 at 7-
8.
\47\ GAO, GAO 12-838 at 48-49; See also DHS OIG, OIG-12-79 at 7-
9.
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More recently, in section 1239 of the DRRA, Congress directed FEMA
to review the factors it considers when evaluating a request for a
major disaster declaration, specifically the estimated cost of
assistance factor, and to initiate rulemaking to update the declaration
factors.\48\
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\48\ See Public Law 115-254, 132 Stat. 3466 (Oct. 5, 2018).
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4. Problems With the Current Cost of Assistance Estimates Factor
a. The Current Cost of Assistance Estimates Factor No Longer Provides
an Accurate Measure of States' Capabilities To Respond to Disasters and
Is No Longer Reflective of Current Economic Conditions
The lack of increases to the per capita indicator from 1986 to 1999
undercut the value of this factor as an indicator of State capacity
given the reduction in purchasing power during that time. Similarly, on
the minimum threshold, the lack of an increase since 1999 has prevented
this factor from keeping pace with inflation, and rising State budgets
and resources. For context, the lowest State budget for FY 2018
(Delaware) was just over $4 billion,\49\ while its State COA indicator
for FY 2018 was just over $1.31 million, or 0.032 percent of the
State's budget. For comparison, in FY 1987, Delaware's budget was just
under $1 billion,\50\ while its State COA indicator was just under
$595,000, or 0.063 percent of Delaware's FY 1987 State budget.
Similarly, the lowest TTR amongst the States for FY 2016 (Vermont) was
$36.1 billion,\51\ while that State in FY 2016 was subject to the $1
million minimum threshold, or 0.0028 percent of the State's TTR.
Because its State COA indicator was less than $1 million, Vermont would
have been subject to the $1 million threshold in FY 2016. For
comparison, Vermont's TTR in 1997 was $17.3 billion, while it was
subject to the $1 million minimum threshold, or 0.0058 percent of its
1997 TTR. As shown from these figures, the ratio of the per capita
indicator and the minimum threshold as a percentage of State budgets
and TTR has decreased since FEMA began using the per capita indicator
and minimum threshold. Moreover, as discussed in the Regulatory Impact
Analysis (RIA) found in the docket of this rulemaking, since 1999,
State gross domestic product (GDP), total State expenditures, and State
TTR have increased, on a nationwide average, by approximately 113
percent, 131 percent, and 130
[[Page 80723]]
percent, respectively.\52\ In comparison, since 1999, the per capita
indicator and the minimum threshold have risen 50 percent and 0
percent, respectively.
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\49\ Delaware General Assembly, Section 1, House Substitute No.
1 for House Bill No. 275 of 2017. p. 60. Retrieved 11 June 2018
(available for download at: https://delcode.delaware.gov/sessionlaws/ga149/chp058.pdf).
\50\ NASBO, The State Expenditure Report, at 59 (July 1987)
(available for download at: https://www.nasbo.org/reports-data/state-expenditure-report/state-expenditure-archives).
\51\ U.S. Dept. of Treasury, 2018 Total Taxable Resources
Estimates (Sept. 2018), (available for download at: https://home.treasury.gov/system/files/226/TTR-tables-2018.pdf) (last
accessed Feb. 19, 2019). 2016 is the most recently reported year for
TTR because there is a two-year lag in reporting.
\52\ See Regulatory Impact Analysis (RIA) at 47. The RIA is
available in the public docket for this proposed rule on
regulations.gov.
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Consequently, FEMA is relying upon per capita indicator and minimum
threshold factors that are no longer adequate measures of a State's
capability to respond to and recover from a disaster. The result is a
greater likelihood that FEMA recommends major disaster declarations for
relatively small incidents that a more accurate assessment would find
is within a State's financial capabilities to respond to on its own.
This result is counter to the intent of the Stafford Act that Federal
assistance be supplemental, and only necessary for disasters that
exceed a State's capabilities. In light of the rise in the costs to
respond to and recover from a disaster (construction costs in
particular), the lack of increases to the per capita indicator has led
to outcomes, especially in less populous States, where minor,
concentrated infrastructural damage (e.g., a dirt road washout or
damage to a single building) would result in costs sufficient to meet
the per capita indicator and potentially result in a disaster
declaration. While such incidents can certainly be disruptive and
expensive, it is questionable whether such minor, concentrated damage
really overwhelms a State and warrants a Presidential major disaster
declaration.
In sum, the per capita indicator and minimum threshold are not
reflective of the change in economic conditions since 1986 and 1999,
respectively, and are no longer adequate measures of the States'
capabilities to respond to, and recover from, incidents on their own.
The increases in State resources and expenditures, and costs,
generally, without corresponding increases to the per capita indicator
and minimum threshold, has created a situation where Federal assistance
is being provided for incidents which are more appropriately addressed
by the States. This is counter to the intent of the Stafford Act that
Federal assistance be provided only where State and local capabilities
are overwhelmed.
b. The Current Cost of Assistance Estimates Factor Undermines FEMA's
Mission to Better Prepare the Nation for Disasters by Disincentivizing
States From Investing in Disaster Mitigation and Preparedness
The current per capita indicator and minimum threshold act as
disincentives for States to invest in disaster response and recovery
capabilities for incidents that should be within their capability to
respond. Emergency management is a shared responsibility that is most
effective when disaster operations are federally supported, State
managed, and locally executed, where Federal support supplements,
rather than supplants, State and local efforts.\53\ In order to build a
more prepared and resilient nation, it is essential that State, local,
Tribal, and Territorial governments continually mitigate risk to
hazards posed by natural disasters, and build their response and
recovery capabilities for future incidents, including the creation of
dedicated financial reserves to respond to incidents.
---------------------------------------------------------------------------
\53\ FEMA, 2018-2022 Strategic Plan at 8 (2018).
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While State and local governments respond on their own to countless
small incidents that do not reach the level of their current State COA
indicator, there is little incentive for States to build their response
and recovery capabilities beyond their current State COA indicator,
since Federal assistance will be provided at that point, even though
FEMA believes all States have financial capabilities beyond their
current State COA indicator. For example, in a 2015 study of 10 States,
the GAO found that some States reported that they could cover disaster
costs without dedicated disaster reserves because they generally relied
on the Federal Government to fund most of the costs associated with
disaster response and recovery.\54\ GAO ultimately concluded, in part,
that given the fiscal challenges facing all levels of government, there
may be increased pressure to consider whether the current State and
Federal approach for providing disaster assistance balances
responsibilities appropriately.\55\
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\54\ GAO, Budgeting for Disasters: Approaches to Budgeting for
Disasters in Selected States, GAO-15-424, at 17 (March 2015).
\55\ Id. at 21.
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The current situation is contrary to two of FEMA's primary
objectives when FEMA first formally established the declaration factors
in regulation in 1999: To encourage States to establish their own
funded disaster assistance programs and to incentivize States to
mitigate hazards and obtain insurance coverage, where possible.\56\
Moreover, the status quo undermines FEMA's mission to build a more
prepared and resilient nation by encouraging States to rely on Federal
assistance when they are capable of being better prepared and more
resilient on their own.
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\56\ See FEMA, Disaster Assistance; Factors Considered When
Evaluating a Governor's Request for a Major Disaster Declaration, 64
FR 47697 (Sept. 1, 1999). See also, FEMA, Disaster Assistance;
Factors Considered When Evaluating a Governor's Request for a Major
Disaster Declaration, 64 FR 3910, 3911 (Apr. 26, 1999).
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c. The Current Cost of Assistance Estimates Factor Undermines FEMA's
Mission To Prepare for and Respond to the Worst Disasters Without Delay
FEMA's response and recovery operations for numerous and cumulative
small disasters weaken its ability to quickly respond to and aid
recovery efforts for larger, or concurrent catastrophic disasters.
FEMA's incident workforce is historically over-committed to smaller
disasters, leaving a fraction of the Agency's capacity to prepare for,
respond to, and recover from complex catastrophes and national security
emergencies.\57\
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\57\ FEMA, 2017 Hurricane Season FEMA After-Action Report, at 23
(July 12, 2018).
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The constraints imposed by numerous and cumulative smaller
disasters affect the Agency's readiness to support disaster recovery
operations without unacceptable delays by consuming FEMA staff time and
resources that would be better used for larger disasters. For example,
FEMA began the 2017 disaster season with nearly 30 percent of its
workforce deployed on numerous smaller disasters across the country,
which then required extraordinary and disruptive measures to reallocate
and redistribute employees to meet the evolving requirements for
hurricanes Harvey, Irma, Maria, and the California Wildfires.\58\ When
Hurricane Harvey made landfall in Texas, FEMA already had 692 open
disaster and emergency declarations.\59\ Of that total, it had staff
deployed to 32 disasters across 19 field offices.\60\ Additionally, in
anticipation of concurrent impacts from Hurricane Irma, FEMA
transitioned 9 active field offices supporting 13 disasters to regional
offices prior to their anticipated closure date. The respective FEMA
regional offices assumed responsibility for supporting these operations
once the field offices transitioned, requiring FEMA regional staff to
aid recovery efforts for these disasters in addition to those disasters
already overseen by the Regional offices, as well as the daily
operations of the Regional offices.\61\ Of the 298 staff that were
demobilized from the 9 field offices, FEMA redeployed 182 personnel to
Hurricanes Harvey, Irma, and Maria within 15 days, 223
[[Page 80724]]
personnel within 30 days, and 242 personnel within 90 days.\62\
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\58\ Id.
\59\ This total includes emergency, major, and fire management
assistance declarations.
\60\ FEMA, 2017 Hurricane Season FEMA After-Action Report, at
14.
\61\ Id. at 18.
\62\ Id.
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FEMA's responsibilities require it to have the capacity to respond
in the shortest possible time, under all conditions, and to provide
adequate staffing and resources for long-term recovery efforts for FEMA
to successfully accomplish its mission. FEMA needs immediate
operational availability because complex, no-notice or concurrent
catastrophes do not provide time to maximize readiness by amassing a
workforce and extracting response resources from multiple smaller-scale
commitments. Moreover, FEMA needs proper staffing, resources, and focus
for the long-term recovery operations for large disasters so that
affected communities can be repaired and rebuilt and return to normal
day-to-day life as soon as possible. FEMA is unable to properly meet
these demands when such a large portion of FEMA's staffing and focus
are committed to numerous and cumulative smaller disasters that are
actually, or should be, within the States' capabilities to handle on
their own.
As noted in FEMA's After-Action Report for the 2017 Hurricane
Season, for FEMA to be better positioned for future challenges, State
and territorial governments should be able to respond to and recover
from smaller incidents within their capabilities either organically or
through collaboration with neighboring states and territories.
Strengthened States and territories, in turn, allow FEMA to preserve
sufficient capacity to promptly respond to and recover from large,
complex, or concurrent catastrophes and national security
emergencies.\63\ However, as noted above, the current per capita
indicator and minimum threshold disincentivize States from building
their capabilities to respond to smaller incidents on their own, which
undermines FEMA's ability to respond to and recover from large,
complex, or concurrent large disasters, and weakens the preparedness
and resilience of the Nation. FEMA could be faster and more effective
in planning for, responding to, and recovering from large catastrophic
disasters if more of its workforce was able to focus on such large
disasters, rather than being dispersed to numerous smaller incidents
more appropriately handled by the States.
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\63\ Id. at 23.
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d. FEMA's Use of the Decennial Census as a Data Source for Population
FEMA has exclusively relied upon the U.S. Census Bureau's decennial
census reports on population to calculate State COA indicators since
the inception of the per capita indicator.\64\ The decennial census is
a major governmental undertaking that involves canvasing the nation and
is considered the most-accurate account of the United States population
at the time it is conducted.\65\ However, the decennial survey is only
conducted every 10 years. Meanwhile, populations constantly fluctuate
due to changing circumstances, such as economic growth and downturn,
relocations driven by disaster, and other factors. In many cases these
fluctuations are rather de minimis, but occasionally they are not. In
such instances, as more time elapses after the most recently completed
decennial census survey, the data from that decennial survey census
becomes a less and less accurate measure of the current populations.
Therefore, the Census Bureau uses the Population Estimates Program
(PEP) to update the populations since the decennial Census was
collected.
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\64\ The Census Bureau's Population Estimates Program (PEP)
produces annual estimates for years after the last published
decennial census 2010, as well as for past decades. Existing data
series such as births, deaths, Federal tax returns, Medicare
enrollment, and immigration, are used to update the decennial census
base counts. PEP estimates are used in Federal funding allocations,
in setting the levels of national surveys, and in monitoring recent
demographic changes. U.S. Census Bureau, Population and Housing
Units Estimates: Frequently Asked Questions (available at: https://www.census.gov/programs-surveys/popest/about/faq.html) (last
accessed April 26, 2019).
\65\ Also known as the Population and Housing Census, the
Decennial U.S. Census counts every resident in the United States. It
is mandated by Article I, Section 2 of the Constitution and takes
place every 10 years. The data collected by the decennial census
determine the number of seats each state has in the U.S. House of
Representatives and is also used to distribute billions in Federal
funds to local communities. U.S. Census Bureau, Our Surveys &
Programs: Our Censuses (available at https://www.census.gov/programs-surveys/censuses.html) (last accessed June 26, 2019).
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Illustrative of how drastically the decennial census data can
diverge from the PEP estimates are the cases of Nevada in 2000 and
Puerto Rico in 2010, showing the greatest increase and greatest
decrease in population in those periods, respectively. The 2000
decennial census reported the population of Nevada to be 1,998,257.\66\
The 2001 PEP estimate for Nevada was 2,098,399. By 2009, the PEP
estimate had risen to 2,684,665.\67\ The 2010 decennial census reported
Nevada's population at 2,700,551. Nevada's population grew by 35
percent between 2000 and 2010. Consequently, by 2010, the 2000
decennial census data showed a population for Nevada that was 35
percent lower than its 2010 population. Comparatively, the 2009 Nevada
PEP estimate was off by only 0.6 percent from the actual population
reported in the 2010 decennial survey. Similarly, the 2010 decennial
census reported the population of Puerto Rico to be 3,725,789.\68\
However, by July of 2018, the PEP estimate for Puerto Rico fell to
3,195,153, a 14 percent decrease.\69\
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\66\ U.S. Census Bureau, Report No. DP-1, Profiles of General
Demographic Characteristics 2000: Census of Population and Housing:
Nevada (May 2001) (available for download at: https://www2.census.gov/library/publications/2001/dec/2kh32.pdf?#) (last
accessed April 26, 2019).
\67\ See U.S. Census Bureau, Intercensal Estimates of the
Resident Population by Sex, Race and Hispanic Origin for States and
the United States: April 1, 2000 to July 1, 2010 (available for
download at: https://www.census.gov/data/tables/time-series/demo/popest/intercensal-2000-2010-state.html) (last accessed April 26,
2019).
\68\ Id.
\69\ U.S. Census Bureau, Puerto Rico Commonwealth Population
Totals and Components of change: 2010-2018: Annual Estimates of the
Resident Population for the United States, Regions, States, and
Puerto Rico: April 2010 to July 2018 (available for download at:
https//www.census.gov/data/tables/time-series/demo/popest/2010s-total-puerto-rico.html) (last accessed May 2, 2019).
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Despite the increasing divergence of past decennial data from
current populations in out years, FEMA continues to utilize solely
decennial data for purposes of calculating the State COA indicators.
Under this approach, FEMA essentially locks-in the population of each
State until the new decennial census data is collected, analyzed, and
reported. In monetary terms, FEMA's choice to rely solely on decennial
population values can impact the State COA indicator for a State whose
population is quickly changing.
Nevada and Puerto Rico again provide illustrative examples of this
effect. In 2009, the PA per capita indicator was $1.31.\70\ Based on
the 2000 decennial population that FEMA was still utilizing in 2009,
Nevada's State COA indicator in 2009 was $2,617,717.\71\ Even if FEMA
made no changes to the underlying State COA indicator formula other
than substituting the 2009 PEP population estimate for the 2000
decennial census population estimate, Nevada's State COA indicator
would have risen to $3,516,911.\72\ That results in a difference of
$899,194. Thus, continuing to utilize the static 2000 decennial census
figures in 2009 undervalues Nevada's State COA indicator by 34 percent.
With respect to Puerto Rico, based on the 2010 decennial census data
that FEMA currently utilizes, Puerto Rico's FY 2019 State COA indicator
is $5,588,684.\73\ Assuming no changes to the underlying per capita
indicator
[[Page 80725]]
formula other than substituting 2018 PEP population estimate for the
2010 decennial census population estimate, Puerto Rico's State COA
indicator would be $4,792,730,\74\ or a difference of $795,954. Thus,
continuing to utilize the 2010 decennial census figures in 2019
overvalues Puerto Rico's State COA indicator by 14 percent.
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\70\ 73 FR 60303 (Oct. 10, 2008).
\71\ Calculation: 1,998,257 x $1.31 = $2,617,717.
\72\ Calculation: 2,684,665 x $1.31 = $3,516,911.
\73\ Calculation: 3,725,789 x $1.50 = $5,588,684.
\74\ Calculation: 3,195,153 x $1.50 = $4,792,730.
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As shown above, FEMA's reliance on population data from the most
recent decennial survey can lead to an imprecise assessment of a
State's population. Using PEP estimates will provide more up-to-date
population information and allow for more accurate analysis.
B. Localized Impacts and Multiple Disasters
In addition to estimating the cost of assistance for a disaster,
pursuant to 44 CFR 206.48(a)(1), FEMA also considers a variety of other
factors when reviewing a request for a major disaster declaration
authorizing PA. While the cost of assistance estimates factor is often
the greatest indicator of whether FEMA will recommend that the
President issue a major disaster declaration, that factor alone does
not automatically mean a denial if the State does not meet it, nor does
it guarantee a declaration if the State does meet it.\75\ Rather, FEMA
considers each factor to better evaluate the unique circumstances or
needs created by each incident.\76\
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\75\ 64 FR 47697. See also 64 FR 3911.
\76\ 64 FR 47697. See also 64 FR 3911.
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Two of the factors that FEMA considers in reviewing a Governor's
request are the recent disasters in an area, and the localized impacts
of a disaster.\77\ With respect to recent disasters, FEMA considers the
disaster history within the last 12-month period to better evaluate the
overall impact on the State or locality. FEMA considers declarations
under the Stafford Act as well as declarations by the Governor and the
extent to which the State has spent its own funds. With respect to
localized impacts, FEMA considers the impact of the incident at the
county and local government level, as well as impacts at the American
Indian and Alaskan Native Tribal Government levels, because at times
there are extraordinary concentrations of damages that might overwhelm
State capabilities even if the State COA indicator is not met,
especially where critical facilities are involved or where localized
per capita impacts might be extremely high. For example, at times
localized damage may be in the tens or even hundreds of dollars per
capita, though the statewide per capita impact was low.
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\77\ 44 CFR 206.48(a)(2) & (5).
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In recent years, some members of Congress have expressed concern
that the President has denied declarations that were warranted because
of other recent disasters in the area and localized impacts,
particularly where the impact is limited to the rural or sparsely
populated areas of a high population State and the estimated costs of
the incident do not exceed the State COA indicator. Section 1232 of the
DRRA requires the Administrator of FEMA to give greater consideration
to recent multiple disasters or severe localized impacts when making
disaster declaration recommendations to the President, and to make
corresponding adjustments to FEMA's policies and regulations regarding
such consideration.
The existing recent multiple disasters provision in FEMA's
regulations is broad with respect to how much consideration the
Administrator gives to disasters in the previous 12 months. Consistent
with that provision and with FEMA's May 1 guidance to Regional
Administrators, directing them to include in their recommendations
appropriate and fulsome information regarding severe local impacts and
the history of recent multiple disasters,\78\ FEMA is giving greater
consideration to these factors when making disaster declaration
recommendations. Accordingly, FEMA does not propose to substantively
amend 44 CFR 206.48(a)(5), but requests comment on whether the 12-month
time limit currently in place is sufficient to address this factor as
required by the DRRA. Similarly, FEMA proposes not to substantively
amend the current regulatory text for the localized impacts factor in
Sec. 206.48(a)(2). FEMA believes that the current regulatory text
enables FEMA to provide adequate consideration of local impacts while
ensuring that FEMA does not over step the statutory requirement that an
event be beyond State capability. FEMA also does not propose at this
time to substantively amend the other declaration factors at 44 CFR
206.48(a)(3) (``Insurance coverage in force''), (4) (``Hazard
mitigation''), and (6) (``Programs of other Federal assistance''). The
current regulatory text for these factors already provides for adequate
consideration of important information for FEMA assessment of a State's
capabilities to respond to an event, while also providing sufficient
flexibility for FEMA to account for a variety of circumstances across
the States. However, FEMA is proposing minor technical and grammatical
changes to all of Sec. 206.48(a).
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\78\ Memorandum for Regional Administrators from Jeff Byard,
Associate Administrator, Office of Response and Recovery,
Declaration Factors for Local Impact and Recent Multiple Disasters
(May 1, 2019).
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IV. Discussion of the Proposed Rule
FEMA proposes to revise the ``Estimated cost of the assistance''
factor in 44 CFR 206.48(a)(1) by increasing the per capita indicator to
account for inflation from 1986 to 1999 and adjusting the individual
States' indicators by their total taxable resources (TTR),\79\ and by
increasing the minimum threshold by accounting for inflation from 1999
to 2019, and annually thereafter. These changes would provide FEMA with
a better informed and more accurate assessment of whether an incident
has exceeded State capabilities when it makes its recommendations to
the President; incentivize States to invest more in response, recovery,
and mitigation capabilities, which would provide a better distribution
of responsibilities between the States and the Federal Government and
better overall national preparedness for disasters; and the associated
reductions in declarations of small incidents would allow FEMA to
better focus its efforts and resources on large disasters without the
complications of reallocating resources from multiple smaller-scale
commitments.
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\79\ As discussed more below, FEMA will not adjust the District
of Columbia's per capita indicator for TTR because of the unique tax
and Federal funding circumstances in the District, as well as
Congress' control over the ability of the District to manipulate its
own revenues. Additionally, FEMA will not adjust the territories'
per capita indicators for TTR because Treasury does not report TTR
for the territories.
---------------------------------------------------------------------------
Additionally, FEMA also proposes to use the U.S. Census Bureau's
annual population estimates produced under the Population Estimates
Program (PEP) instead of the decennial census population data. Using
the U.S. Census Bureau's annual PEP data instead of the decennial
census data would ensure a more accurate assessment of an individual
State's population, which would better enable FEMA to achieve its
readiness and preparedness missions by allowing FEMA to expend more
attention and resources on incidents that actually exceed the States'
capabilities.
Importantly, this proposed rule does not affect disaster
declaration requests received directly from Tribal governments under
the Tribal
[[Page 80726]]
Declarations Pilot Guidance, or any of the criteria contained in that
guidance.\80\
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\80\ FEMA, Tribal Declarations Pilot Guidance, available at:
https://www.fema.gov/tribal-declarations-pilot-guidance. Notice of
availability published at 82 FR 3016 (Jan. 10, 2017).
---------------------------------------------------------------------------
FEMA also proposes minor technical and corresponding grammatical
changes to the introductory paragraph of Sec. 206.48 and all of
paragraph (a) to ensure consistent language throughout this section.
A. 44 CFR 206.48(a)(1)--Adjusting the Per Capita Indicator
1. Increasing the Per Capita Indicator To Account for Inflation Between
1986 and 1999
FEMA proposes to increase the per capita indicator from a FY 2019
value of $1.50,\81\ to $2.32 (rounded), to account for increases to the
Consumer Price Index for All Urban Consumers (CPI-U) between 1986 and
1999.\82\ FEMA would continue to adjust the per capita indicator
annually to reflect changes in the CPI-U, as is current practice. This
would establish the baseline per capita indicator which FEMA would
further adjust for each State, as described below.
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\81\ The FY2019 per capita indicator was the most current per
capita indicator at the time that this proposed rule was written.
\82\ Using August 1986 and 1999 CPI-U historical data.
---------------------------------------------------------------------------
The CPI-U is calculated and published by the U.S. Department of
Labor, Bureau of Labor Statistics,\83\ and uses the period of 1982 to
1984 as the base level where the CPI-U = 100. Current FEMA practice is
to update the per capita indicator each fiscal year using the latest
available month of CPI-U data. Since the per capita indicator is
reported for the fiscal year and is published each October, the latest
available CPI-U data is August data published in September each year.
To maintain consistency with how FEMA updates the per capita indicator,
FEMA calculated the inflation adjustment by comparing the April CPI-U
for the base year 1986 (108.60) with the August CPI-U for 2018
(252.146). At the time of this analysis, August 2018 CPI-U data was the
most recently available August CPI-U data available. This resulted in
an inflation adjustment factor of 2.322.\84\ FEMA then multiplied the
inflation adjustment factor of 2.322 by the original per capita
indicator of $1.00 to find a base per capita indicator of $2.32
(rounded).
---------------------------------------------------------------------------
\83\ BLS Archived Consumer Price Index Supplemental Files
(available for download at: https://www.bls.gov/CPI-U/tables/supplemental-files/home.htm). Data was taken from the Historical
CPI-U, February 2019 publication.
\84\ Calculation: $1 + (252.146-108.60)/108.60 = $2.322
(rounded).
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Moving forward, once FEMA increases the indicator for the 1986-1999
inflationary adjustments, the continued practice of adjusting the
indicator to account for changes in the CPI-U would continue to ensure
that the indicator keeps pace with inflation. This would lead to
reductions in the number and frequency of future major disaster
declarations, and decreases in Federal costs of disaster assistance, by
having States take responsibility for costs that are within their
capability to manage.
Much like FEMA's decision in 1999 to set the per capita indicator
at $1 and begin adjusting for inflation, rather than PCPI,\85\ the
current proposed change (to increase the per capita indicator for
inflation between 1986 and 1999) provides a simple, clear, consistent,
and long standing means of evaluating the size of a disaster relative
to the size of the State, while also decreasing the number and
frequency of disaster declarations, and decreasing Federal disaster
costs. Moreover, increasing the per capita indicator to account for
inflation from 1986 to 1999 would be more reflective of current dollar
values, and would better enable FEMA to achieve its readiness and
preparedness missions because FEMA would be able to apply more
attention and resources to large catastrophic incidents as less FEMA
focus and resources would be needed for smaller incidents actually
within the States' capabilities.
---------------------------------------------------------------------------
\85\ See 64 FR 47697 (Sept. 1, 1999).
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2. Adjusting the Increased Per Capita Indicator for Total Taxable
Resources
In addition to increasing the per capita indicator to account for
inflation from 1986 to 1999, FEMA proposes to adjust the increased,
baseline per capita indicator for a State's TTR to set an indicator
that better recognizes a State's actual fiscal capability.
The TTR of the State is a publicly available annual estimate of the
relative fiscal capacity of a State, calculated by the U.S. Department
of Treasury (Treasury).\86\ Treasury defines TTR 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.\87\ TTR
includes much of the business income that does not become part of the
income flow to jurisdiction residents, as well as undistributed
corporate profits, and rents and interest payments made by businesses
to out-of-jurisdiction real estate owners and lenders.\88\ TTR does not
consider the actual fiscal choices made by the States, but rather, it
reflects their potential resources and is an indicator of a State's
broader economy.\89\ In summary, TTR is a flow concept, meaning it is a
comprehensive measure of all the income flows a State can potentially
tax.\90\ Treasury bases its calculation of the TTR on the Gross State
Product (GSP) and State personal income,\91\ accounting for the
earnings of State residents who work outside the State borders,
dividend and monetary interest income earned from sources outside of
the State, select transfers from the Federal Government, and net
realized capital gains. The following components of GSP were not
available to States to tax and hence subtracted from GSP: Federal
indirect business taxes, employer and employee contributions to social
insurance, and Federal civilian enterprises surplus/deficit.\92\
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\86\ Treasury updates TTR data annually with a 2-year lag in the
data, available at https://home.treasury.gov/policy-issues/economic-policy/total-taxable-resources.
\87\ Dep't of Treasury, Office of Economic Policy, Treasury
Methodology for Estimating Total Taxable Resources, at 2 (Revised
Nov. 2002) (available for download at: https://www.treasury.gov/resource-center/economic-policy/Documents/nmpubsum.pdf).
\88\ See Id. at 1-4.
\89\ See Id. at 2.
\90\ Id.
\91\ Id. at 2-3.
\92\ See Id. at 1-4.
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Consideration of TTR as an indicator of State fiscal capacity is
also consistent with FEMA's recent rulemaking revising the factors
considered when evaluating requests for Individual Assistance (IA). The
revised regulations for evaluating requests for IA (44 CFR 206.48(b))
use TTR as the main indicator of a State's fiscal capacity to provide
IA.\93\
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\93\ FEMA, Factors Considered When Evaluating a Governor's
Request for Individual Assistance for a Major Disaster, 84 FR 10632
(March 21, 2019). The revised IA regulations also allow States to
submit information regarding State GDP and local per capita personal
income, as well as other limiting factors, which FEMA may use as an
alternative or supplemental evaluation method to TTR from which to
measure a State's fiscal capacity to provide IA in response to a
disaster. See 44 CFR 206.48(b)(1)(i)(A)-(C).
---------------------------------------------------------------------------
FEMA considered other potential alternatives for adjusting the per
capita indicator to better measure a State's financial capabilities,
including State GDP (i.e., the total value of the goods and services
produced within the State in a particular year); State Total Actual
Revenues (TAR) (i.e., the amount of revenue a particular State actually
raises in a typical year); and a composite index of per capita TTR, per
capita surplus/deficit, per capita reserve funding, and the State's
bond rating. State GDP and TAR are strongly correlated with TTR;
[[Page 80727]]
however, TTR, as a measure of potential, does not suffer from
complications of political choice in TAR or GDP that result from
differences between States in State tax obligations and the services
for which tax dollars are allocated. Accordingly, given the correlation
between the three, and the policy-neutrality of TTR, FEMA believes that
TTR is the best measure of a State's financial capabilities by which to
adjust the baseline per capita indicator.
Under the composite index approach, FEMA would average the four
fiscal capacity indices and use the final figure to adjust each State's
per capita indicator. This type of analysis was previously considered
for use in FEMA's Establishing a Deductible for FEMA's Public
Assistance Program Supplemental Advance Notice of Proposed Rulemaking
(Deductible ANPRM).\94\ The Deductible ANPRM was an earlier attempt to
address the issue of underestimating States' fiscal capacity when
recommending disaster declarations, and the four-part composite index
analysis was part of the reason the deductible was eventually rejected.
Public comments received on the Deductible ANPRM made clear that State
and local stakeholders were uncomfortable with the complexity of the
four-factor analysis; although it is more in-depth and could
potentially produce more accurate assessments of States' fiscal
capacities, the analysis is also a substantially more complicated
framework for States and PA sub-recipients to adapt to and plan around.
FEMA decided against using it here for these same reasons. FEMA
believes adjusting the per capita indicator only by TTR strikes an
appropriate balance between improving the fiscal capacity analysis by
considering more than simply a State's population, and not burdening
States with an overly complicated formula that slows implementation of
the new framework.
---------------------------------------------------------------------------
\94\ 82 FR 4064, 4072 (Jan. 12, 2017).
---------------------------------------------------------------------------
Based on the above, FEMA believes that adjusting the baseline per
capita indicator for TTR would result in a more realistic estimate of a
State's financial capability. As previously discussed, adjusting the
per capita indicator to adjust for inflation using the CPI-U between
1986 and 1999 would provide a more accurate measurement of the current
costs of response and recovery, as well as changing present value of
the dollar. Adjusting the indicator based on a State's TTR would
provide additional accuracy in gauging a State's fiscal capacity by
accounting for taxable resources other than the State's population,
such as business income, undistributed corporate profits, and resident
earnings from out-of-state employment. This approach also aligns with
the recommendations of DHS OIG and GAO, Congress' direction in section
1239 of the DRRA, as well as the Stafford Act and FEMA's Strategic
Plan, by ensuring that Federal assistance supplements State and local
efforts when State and local capabilities have been exceeded, rather
than supplanting resources that a State is financially capable of
providing on its own.
Treasury reports TTR in three formats: billions of dollars, dollars
per capita, and the per capita index. To adjust for TTR, FEMA would use
1/100th of the TTR per capita index, which is calculated relative to
the national average TTR for a given year, where a TTR per capita index
of 100 represents the national average. For example, if a State had a
TTR per capita index of 101, FEMA would multiply the baseline indicator
by 1.01 to adjust (e.g., $2.32 x 1.01 = $2.34). FEMA would use the most
recent TTR data available. Using 2018 published data, the minimum per
capita indicator adjusted for TTR would be $1.52 (Mississippi, $2.32 x
.655 = $1.52) and the maximum per capita indicator adjusted for TTR
would be $3.17 (Connecticut, $2.32 x 1.368 = $3.17).\95\
---------------------------------------------------------------------------
\95\ U.S Dept. of Treasury, 2018 Total Taxable Resources
Estimates (2018), https://home.treasury.gov/system/files/226/TTR-tables-2018.pdf.
---------------------------------------------------------------------------
FEMA believes that this method is the clearest and simplest method
of utilizing the reported formats of TTR.\96\ If FEMA were to use one
of the other reported formats of TTR, FEMA would need to set a
percentage of State total TTR in billions of dollars or State TTR per
capita that would be appropriate for measuring a State's fiscal
capability for responding to an incident, or FEMA would need to devise
a formula by which to obtain a number that would adjust the baseline
per capita indicator. FEMA believes that such changes could be
difficult to implement on an annual basis, would be overly complex, and
could result in confusion for stakeholders.\97\ In contrast, much like
the adjustment to the baseline per capita indicator, FEMA believes that
the proposed method of adjusting for TTR provides the simplest,
clearest, and most workable method by which to adjust the per capita
indicator in order to ensure that FEMA accurately measures a State's
financial capabilities.
---------------------------------------------------------------------------
\96\ The GAO recommended the same approach to use a fiscal index
to adjust the per capita indicator. GAO, GAO 12-838 at 71-72.
\97\ Notably, the revisions to the regulations governing
requests for IA included the ability for States to submit
information on their GDP and local per capita personal income (PCPI)
which FEMA may use as a supplemental or alternative factor to TTR
when measuring a State's fiscal capacity to provide IA. See 44 CFR
206.48(b)(1). While such data may be useful in the IA context, it is
less so in the PA context. First, FEMA notes that the use of State
GDP and local PCPI are only as potential supplemental or alternative
data points for fiscal capacity; TTR is still the preeminent factor
for determining fiscal capacity for IA requests. Second, the IA
program does not use a per capita indicator like the PA program, nor
does it use any adjustment factors such as the proposed rule.
Accordingly, if FEMA were to incorporate State GDP and local PCPI,
along with TTR, into its consideration of PA requests, it would need
to create a formula to adjust the per capita indicator, which would
add complexity to the per capita indicator with little benefit given
that TTR already incorporates a measure of a State's GDP and
personal income. Moreover, States may submit data on their GDP or
local PCPI to supplement their request for a PA declaration, since
FEMA may consider information in addition to the factors in 44 CFR
206.48(a) to the extent that it further informs FEMA's
recommendation to the President.
---------------------------------------------------------------------------
As shown in Table 1, the individual States' per capita indicators
would range from $1.51 to $3.15. Every State's per capita indicator
would increase due to the adjustment for increases to the CPI-U from
1986 and 1999. However, adjusting for TTR would decrease 29 States' per
capita threshold from the base amount, 20 States would see an increase
in their per capita indicator threshold, and 7 States would still have
a $2.32 adjusted per capita indicator.\98\
---------------------------------------------------------------------------
\98\ As noted above, FEMA is not proposing to use TTR data for
the territories and DC. South Dakota had a TTR of 100 in 2018.
---------------------------------------------------------------------------
FEMA proposes not to adjust the District of Columbia's per capita
indicator for TTR. The complex tax and Federal appropriation
circumstances in the District of Columbia, as well as Congress' control
over the ability of the District to manipulate its own revenues, would
require impractical and potentially inaccurate adjustments in the TTR
method. For example, Federal law prohibits the District from taxing
non-resident commuters. Additionally, evaluating the District of
Columbia's TTR is further complicated by the direct Federal oversight
and appropriation of the District's budget. Accordingly, TTR does not
provide the additional accuracy in determining the District's financial
capability as it does for the States. Therefore, FEMA would use the
increased per capita indicator to determine the District's per capita
threshold, without adjusting for TTR. FEMA specifically requests
comment on possible alternatives to this approach that would improve
the accuracy of FEMA's fiscal capacity analysis for the District.
Additionally, FEMA is not proposing to adjust the per capita
indicator for TTR for the territories because Treasury
[[Page 80728]]
does not report TTR for the territories.\99\ This would result in the
territories having the same per capita threshold as the average State,
which may in practice be an over-estimation of the territories' fiscal
capacity. However, without a published TTR to use, adopting the same
approach proposed here for the States simply is not an option. FEMA
requests comment on alternative approaches that would improve FEMA's
fiscal capacity analysis for the territories. One such alternative, on
which FEMA requests comment, would be to adjust the per capita
indicator for the territories by the lowest TTR reported for any of the
States.
---------------------------------------------------------------------------
\99\ The territories for which Treasury does not report TTR
include: American Samoa, Guam, the Commonwealth of the Northern
Mariana Islands, Puerto Rico and the U.S. Virgin Islands.
---------------------------------------------------------------------------
3. Using Annual Population Data To Calculate the States' COA Indicator
FEMA proposes to use the U.S. Census Bureau's annual population
estimates produced under PEP instead of the decennial census population
data when calculating the State COA indicator. PEP produces annual
estimates for years after the last published decennial census, as well
as for past decades. The Census Bureau uses existing data series such
as births, deaths, Federal tax returns, Medicare enrollment, and
immigration to update the decennial census base counts. PEP estimates
are used in Federal funding allocations, in setting the levels of
national surveys, and in monitoring recent demographic changes.\100\ As
years pass since the most-recent decennial survey, the PEP estimates
bear less relation to the previous numbers and adopt a stronger
correlation to the results of the next decennial survey. In other
words, as more time elapses between the most recently completed
decennial survey and the next decennial survey, the PEP estimates
become more current measures of the States' populations than the most
recently conducted decennial survey.
---------------------------------------------------------------------------
\100\ U.S. Census Bureau, Population and Housing Units
Estimates: Frequently Asked Questions (available at: https://www.census.gov/programs-surveys/popest/about/faq.html) (accessed
April 26, 2019).
---------------------------------------------------------------------------
Using the annual PEP data instead of data from the most recent
decennial census would provide a more contemporaneous measure of a
State's population to use in FEMA's calculation of State COA
indicators. As shown in the examples of Nevada and Puerto Rico, use of
decennial census data can lead to inaccurate assessments of a State's
current population. Using the U.S. Census Bureau's annual PEP data
instead of the decennial census data would ensure a more current
assessment. Using the PEP data would better enable FEMA to achieve its
readiness and preparedness missions because FEMA would be able to
expend more attention and resources to large catastrophic incidents
since less FEMA focus and resources would be needed for smaller
incidents within the States' capabilities.
4. State COA Indicators After Accounting for Proposed Changes
The following table shows for each State: (1) The most recent TTR
per capita index (2016),\101\ (2) the proposed State per capita
indicator after adjusting for inflation and TTR, (3) State population
from the most recent PEP estimates (2018),\102\ (4) the resultant
proposed State COA indicators, (5) the FY2019 State COA indicators
based on the FY2019 per capita indicator ($1.50) \103\ and 2010
decennial census data, and (6) the difference between the proposed and
baseline State COA indicators.
---------------------------------------------------------------------------
\101\ The Treasury Department publishes updated TTR per capita
indices two years after the year in question. The most recent data
available at the time of this analysis was 2016 data.
\102\ PEP estimates are released in July each year covering the
previous year and all other years back to the last decennial census.
At the time of this analysis, the data for 2018 was the most recent
data available.
\103\ FEMA publishes updated per capita indicators in the
Federal Register each year, with FY 2019 being the most recent data
available at the time of this analysis. If this proposed change were
adopted, FEMA's annual publication in the Federal Register would
include a list of TTR-adjusted per capita indicators and COA
indicators for each State.
Table 1--Proposed State COA Indicators
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed state
per capita PEP population Proposed state FY 2019 state
State 2016 TTR indicator estimate COA indicators COA Difference (A- Percent change
(percentage) (2016 TTR * (2018) (A) indicators-- B)
$2.32) baseline (B)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................. 73.7 $1.71 4,887,871 $8,358,259 $7,169,604 $1,188,655 16.6
Alaska.................................. 110.5 2.56 737,438 1,887,841 1,065,347 822,494 77.2
Arizona................................. 76.6 1.78 7,171,646 12,765,530 9,588,026 3,177,504 33.1
Arkansas................................ 74.2 1.72 3,013,825 5,183,779 4,373,877 809,902 18.5
California.............................. 114.2 2.65 39,557,045 104,826,169 55,880,934 48,945,235 87.6
Colorado................................ 102 2.37 5,695,564 13,498,487 7,543,794 5,954,693 78.9
Connecticut............................. 136.8 3.17 3,572,665 11,325,348 5,361,146 5,964,202 111.2
District of Columbia.................... 100 2.32 967,171 2,243,837 902,585 1,341,252 148.6
Delaware................................ 131.7 3.06 702,455 2,149,512 1,346,901 802,611 59.6
Florida................................. 85.4 1.98 21,299,325 42,172,664 28,201,965 13,970,699 49.5
Georgia................................. 87.3 2.03 10,519,475 21,354,534 14,531,480 6,823,054 47.0
Hawaii.................................. 99 2.30 1,420,491 3,267,129 2,040,452 1,226,677 60.1
Idaho................................... 74.5 1.73 1,754,208 3,034,780 2,351,373 683,407 29.1
Illinois................................ 108.4 2.51 12,741,080 31,980,111 19,245,948 12,734,163 66.2
Indiana................................. 90.7 2.10 6,691,878 14,052,944 9,725,703 4,327,241 44.5
Iowa.................................... 102.5 2.38 3,156,145 7,511,625 4,569,533 2,942,092 64.4
Kansas.................................. 96.3 2.23 2,911,505 6,492,656 4,279,677 2,212,979 51.7
Kentucky................................ 76.6 1.78 4,468,402 7,953,756 6,509,051 1,444,705 22.2
Louisiana............................... 85.8 1.99 4,659,978 9,273,356 6,800,058 2,473,298 36.4
Maine................................... 79.6 1.85 1,338,404 2,476,047 1,992,542 483,505 24.3
Maryland................................ 117.2 2.72 6,042,718 16,436,193 8,660,328 7,775,865 89.8
Massachusetts........................... 130.4 3.03 6,902,149 20,913,511 9,821,444 11,092,067 112.9
Michigan................................ 85.6 1.99 9,995,915 19,891,871 14,825,460 5,066,411 34.2
Minnesota............................... 105 2.44 5,611,179 13,691,277 7,955,888 5,735,389 72.1
Mississippi............................. 65.5 1.52 2,986,530 4,539,526 4,450,946 88,580 2.0
Missouri................................ 86.1 2.00 6,126,452 12,252,904 8,983,391 3,269,513 36.4
Montana................................. 80.2 1.86 1,062,305 1,975,887 1,484,123 491,764 33.1
Nebraska................................ 107.1 2.48 1,929,268 4,784,585 2,739,512 2,045,073 74.7
[[Page 80729]]
Nevada.................................. 91.9 2.13 3,034,392 6,463,255 4,050,827 2,412,428 59.6
New Hampshire........................... 112.9 2.62 1,356,458 3,553,920 1,974,705 1,579,215 80.0
New Jersey.............................. 122.8 2.85 8,908,520 25,389,282 13,187,841 12,201,441 92.5
New Mexico.............................. 76 1.76 2,095,428 3,687,953 3,088,769 599,184 19.4
New York................................ 132 3.06 19,542,209 59,799,160 29,067,153 30,732,007 105.7
North Carolina.......................... 86.4 2.00 10,383,620 20,767,240 14,303,225 6,464,015 45.2
North Dakota............................ 119.8 2.78 760,077 2,113,014 1,008,887 1,104,127 109.4
Ohio.................................... 91.6 2.13 11,689,442 24,898,511 17,304,756 7,593,755 43.9
Oklahoma................................ 80.7 1.87 3,943,079 7,373,558 5,627,027 1,746,531 31.0
Oregon.................................. 95.7 2.22 4,190,713 9,303,383 5,746,611 3,556,772 61.9
Pennsylvania............................ 100.4 2.33 12,807,060 29,840,450 19,053,569 10,786,881 56.6
Rhode Island............................ 101.9 2.36 1,057,315 2,495,263 1,578,851 916,412 58.0
South Carolina.......................... 75.5 1.75 5,084,127 8,897,222 6,938,046 1,959,176 28.2
South Dakota............................ 100 2.32 882,235 2,046,785 1,221,270 825,515 67.6
Tennessee............................... 84.9 1.97 6,770,010 13,336,920 9,519,158 3,817,762 40.1
Texas................................... 96.6 2.24 28,701,845 64,292,133 37,718,342 26,573,791 70.5
Utah.................................... 87.4 2.03 3,161,105 6,417,043 4,145,828 2,271,215 54.8
Vermont *............................... 91.7 2.13 626,299 1,334,017 938,612 395,405 42.1
Virginia................................ 105.1 2.44 8,517,685 20,783,151 12,001,536 8,781,615 73.2
Washington.............................. 116 2.69 7,535,591 20,270,740 10,086,810 10,183,930 101.0
West Virginia........................... 72 1.67 1,805,832 3,015,739 2,779,491 236,248 8.5
Wisconsin............................... 95.4 2.21 5,813,568 12,847,985 8,530,479 4,317,506 50.6
Wyoming................................. 117.9 2.74 577,737 1,582,999 845,439 737,560 87.2
Puerto Rico............................. 100 2.32 3,195,153 7,412,755 5,588,684 1,824,071 32.6
American Samoa *........................ 100 2.32 55,519 128,804 83,279 45,525 54.7
Guam *.................................. 100 2.32 159,358 369,711 239,037 130,674 54.7
Northern Mariana Islands *.............. 100 2.32 44,943 104,268 67,415 36,853 54.7
Virgin Islands *........................ 100 2.32 106,405 246,860 159,608 87,252 54.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
* These jurisdictions are subject to the current $1 million minimum threshold because the State COA indicator falls beneath the minimum threshold.
B. 44 CFR 206.48(a)(1)--Adjusting the $1 Million Minimum Threshold for
Inflation
FEMA proposes to increase the minimum threshold in the cost of
assistance estimates factor to account for inflation from 1999, and to
adjust the threshold using CPI-U annually hereafter. The proposed rule
would increase the current minimum threshold from $1 million to $1.535
million for FY 2019.\104\ As noted above, FEMA has never increased the
minimum threshold since it established the threshold in 1999, despite a
51 percent increase in the CPI-U and corresponding rises in the costs
to respond to incidents, as well as rises in State GDP, expenditures,
and TTR. Accordingly, while FEMA believed in 1999 that $1 million was a
reasonable amount for even the least populous States and Territories to
handle on their own, FEMA believes that the $1 million minimum
threshold may no longer be an accurate benchmark of the least populous
States' and Territories' capabilities to respond to incidents. Based on
the rises in State and Territories' GDP, expenditures, and TTR, FEMA
believes that States and Territories should be able to handle the
increased minimum threshold.
---------------------------------------------------------------------------
\104\ FEMA calculated the inflation adjustment by comparing the
January CPI-U for the base year 1999 (164.3) with the August CPI-U
for 2018 (252.146). This resulted in an inflation adjustment factor
of 1.535. FEMA then multiplied the inflation adjustment factor of
1.535 by the original minimum threshold of $1 million to find a
minimum threshold of $1,535,000 (rounded).
---------------------------------------------------------------------------
With the proposed changes to the per capita indicator and the
minimum threshold, Vermont, and the territories of the U.S. Virgin
Islands, Guam, American Samoa, and the Commonwealth of the Northern
Mariana Islands would have State COA indicators that would fall below
the proposed minimum threshold.\105\ Accordingly, these jurisdictions
would be subject to the $1.535 million minimum threshold.
---------------------------------------------------------------------------
\105\ As shown in Table 1 above, with the proposed changes to
the per capita indicator, Vermont's State COA indicator would be
just over $1.30 million. Each of the noted territorial jurisdictions
COA indicators fall well below the proposed $1.535 million minimum
threshold. Therefore, under this proposed rule, in cases where the
estimated cost of assistance meets or exceeds the COA indicators for
Vermont or the territorial jurisdictions, but is less than the
$1.535 million minimum threshold, the minimum threshold would apply,
and the estimated cost of assistance for the State or Territory
would have to meet this higher amount. FEMA anticipates that these
territorial jurisdictions will generally be subject to the annual
minimum threshold year to year due to their small populations.
---------------------------------------------------------------------------
Importantly, by accounting for increases to the CPI-U since 1999
and annually moving forward, the minimum threshold would be more
representative of current dollar values and be a more accurate
indicator of the least populous States' capabilities to respond to
incidents. The reduction in disaster declarations would keep FEMA from
expending resources and attention on incidents within the States'
capabilities, allowing FEMA to better prepare for large, catastrophic
incidents. A higher minimum threshold would incentivize less populous
States and Territories to build their response and recovery
capabilities and mitigate the hazards of future incidents.
In addition to analyzing the effects of increasing the minimum
threshold to account for CPI-U from 1999, FEMA analyzed several
alternatives to increasing the minimum threshold. The full results of
the analysis are presented in the RIA. FEMA analyzed increases since
1999 in State general fund expenditures (which were used as a partial
basis for the $1 per capita indicator set in 1986), State TTR, and
State GDP, as potential alternatives to the proposed action.
FEMA also analyzed whether its administrative costs for past
smaller disasters demonstrated a threshold for which FEMA's
administrative burden exceeded the amount of Federal assistance
provided. In other words, instances in which FEMA's cost to deliver the
assistance may have exceeded the cost of the assistance provided.
Administrative costs include
[[Page 80730]]
disaster-related personnel costs such as salaries, benefits, and
travel; the cost of tasking another Federal agency to support
operations (mission assignments); technical assistance contracts
associated with the execution of the PA program; and, general
administrative costs such as leases, communications, supplies, and
equipment that are incurred from declaration to disaster closure.\106\
Given the broad scope of items included in administrative costs,
particularly related to personnel, administrative costs are a good
representation of the overall Federal resources and attention that are
expended on a given disaster.
---------------------------------------------------------------------------
\106\ Administrative costs do not include program costs
associated with mission assignments for Direct Federal Assistance,
Urban Search and Rescue costs, and all other program deliverables
and assistance such as grants to survivors.
---------------------------------------------------------------------------
Based on the analysis of alternatives, FEMA believes that
increasing the minimum threshold to account for post-1999 increases to
CPI-U is the best alternative for raising the minimum threshold because
the other alternatives would increase the complexity of setting the
minimum threshold, with few, if any, additional benefits. As explained
in the stand-alone RIA found in the docket of this rulemaking,\107\
while the other alternatives may result in modest gains in reducing
disaster declarations and Federal expenditures, those gains would be
outweighed by the complexity that FEMA and stakeholders would encounter
in implementing these other alternatives. Importantly, however, in
addition to increases in the CPI-U, the increases in State
expenditures, GDP, and TTR, and FEMA's average administrative costs for
small disasters collectively demonstrate that the current $1 million
threshold is no longer an accurate benchmark for the States'
capabilities to respond to disasters on their own. Therefore, based on
the totality of this information, FEMA believes an increase to the
minimum threshold is necessary.
---------------------------------------------------------------------------
\107\ See Regulatory Impact Analysis at 47-51.
---------------------------------------------------------------------------
Accordingly, FEMA proposes to amend the minimum threshold to
account for increases to the CPI-U from 1999 to present, and annually
thereafter. The proposed changes would provide the simplest and most
certain means of increasing the minimum threshold, and for annual
changes to the threshold. The proposed use of the CPI-U to increase the
minimum threshold is also consistent with the adjustments to the per
capita indicator. Additionally, adjusting the minimum threshold for
changes to the CPI-U would better reflect current dollar values and the
States' incident response capabilities, allow FEMA to be better
prepared for larger, catastrophic incidents, and incentivize States to
build their response capabilities and mitigate hazards posed by future
incidents, thereby helping FEMA achieve its mission to make the nation
better prepared and more resilient.
C. 44 CFR 206.48(a)(2)-(6)--Other Factors
Section 1232 of the DRRA requires the Administrator of FEMA to give
greater consideration to recent multiple disasters or severe localized
impacts when making disaster declaration recommendations to the
President, and to make corresponding adjustments to FEMA's policies and
regulations regarding such consideration. The current text of 44 CFR
206.48(a)(5) provides broad discretion for the consideration of
multiple disasters occurring in the 12-month period prior to the event.
Consistent with that provision and with FEMA's May 1 guidance to
Regional Administrators, directing them to include in their
recommendations appropriate and fulsome information regarding severe
local impacts and the history of recent multiple disasters,\108\ FEMA
is giving greater consideration to these factors when making disaster
declaration recommendations. Accordingly, FEMA is not proposing to
substantively amend Sec. 206.48(a)(5), but requests comment on whether
a revision of the 12-month time limit currently in place is necessary
to give greater consideration to this factor as required by the DRRA.
---------------------------------------------------------------------------
\108\ Memorandum for Regional Administrators from Jeff Byard,
Associate Administrator, Office of Response and Recovery,
Declaration Factors for Local Impact and Recent Multiple Disasters
(May 1, 2019).
---------------------------------------------------------------------------
Similarly, FEMA proposes not to substantively amend the current
regulatory text for the localized impacts factor in Sec. 206.48(a)(2).
As noted above, FEMA has instructed Regional staff to give greater
consideration to local impacts moving forward \109\ and FEMA believes
that the current regulatory text provides FEMA sufficient flexibility
to provide adequate consideration of local impacts while ensuring that
FEMA does not over step the statutory requirement that an event be
beyond State capability.\110\
---------------------------------------------------------------------------
\109\ Memorandum for Regional Administrators from Jeff Byard,
Associate Administrator, Office of Response and Recovery,
Declaration Factors for Local Impact and Recent Multiple Disasters
(May 1, 2019).
\110\ Importantly, the DRRA did not amend section 401 of the
Stafford Act which requires that the President determine that an
event, to qualify as a major disaster warranting Federal assistance,
be beyond the capabilities of the State and the affected local
governments. See 42 U.S.C. 5170(a). So, while the President must
give consideration to the impact of an event on local governments,
he must also determine that the event exceeds the capabilities of
the State.
---------------------------------------------------------------------------
Additionally, with regard to the requirements of section 1239 of
the DRRA that FEMA review all of the declaration factors and update
them as necessary, FEMA does not propose to substantively amend the
other declaration factors at 44 CFR 206.48(a)(3) (``Insurance coverage
in force''), (4) (``Hazard mitigation''), and (6) (``Programs of other
Federal assistance'') at this time. FEMA believes that the regulatory
text for these factors already provides adequate consideration of
important information for FEMA's assessment of a State's capabilities
to respond to an event, while also providing sufficient flexibility for
FEMA to account for a variety of circumstances across the States.
Notably, although FEMA is not proposing to substantively amend these
factors, FEMA may consider relevant information submitted by a
requesting State that is outside the scope of the declaration factors
listed in 44 CFR 206.48(a).
D. 44 CFR 206.48--Minor Technical and Grammatical Edits
FEMA also proposes minor technical and corresponding grammatical
changes to the undesignated introductory paragraph and to Sec.
206.48(a) to ensure consistent language between the PA declaration
factors in 44 CFR 206.48(a) and the IA factors in 44 CFR 206.48(b).
FEMA proposes to replace all uses of the term ``we'' in 44 CFR 206.48
with ``FEMA''. This would be consistent with the IA declaration factors
in 44 CFR 206.48(b). FEMA also proposes minor corresponding edits to
account for the change to the use of ``FEMA'' to ensure proper grammar.
VI. Regulatory Analysis
A. Executive Order 12866, As Amended, Regulatory Planning and Review;
Executive Order 13563, Improving Regulation and Regulatory Review; and
Executive Order 13771, Reducing Regulation and Controlling Regulatory
Costs
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory 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
[[Page 80731]]
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
an ``economically significant regulatory action,'' under section
3(f)(1) of Executive Order 12866. Accordingly, this 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).
FEMA conducted a Regulatory Impact Analysis (RIA) to assess the
potential costs, benefits, and transfers from this proposed rule, and
it has been found to be economically significant under E.O. 12866. FEMA
provides an executive summary of the RIA below. For the full analysis,
please see the RIA posted in the docket of this proposed rule on
regulations.gov.
FEMA proposes to amend one of the factors it considers when
recommending a major disaster declaration that authorizes PA.
Specifically, the proposed rule would update 44 CFR 206.48(a)(1),
``Estimated cost of the assistance.'' FEMA proposes four associated
changes in 44 CFR 206.48(a) to conform regulations to Section 1239 of
the Disaster Recovery Reform Act of 2018 (DRRA). Table 2 provides a
summary of the impacts of the proposed rule. The four proposed changes
are:
(1) Increase the per capita indicator from $1.50 to $2.32 to
account for inflation using Consumer Price Index for All Urban
Consumers (CPI-U) data from 1986 to 1999 because no inflation factor
was applied during that time frame. Adjust the per capita indicator by
each individual State's total taxable resources (TTR).
(2) Increase the minimum threshold for major disaster declarations
that authorize PA from $1 million to $1.535 million to account for
inflation since 1999 and to adjust the threshold by CPI-U annually
thereafter.\111\
---------------------------------------------------------------------------
\111\ January 1999 CPI-U was 164.3 and August 2018 CPI-U was
252.146. Calculation: (252.14 - 164.3)/164.3 + 1 = 1.535
conversation factor (rounded). 1.535 x $1,000,000 = $1,535,000.
---------------------------------------------------------------------------
(3) Use the US Census Bureau's annual population estimates produced
under the Population Estimates Program (PEP) when calculating the
individual State's threshold. FEMA's current practice is to use the
decennial census population data when calculating the State COA
indicator.
(4) Make minor technical and corresponding grammatical changes to
the undesignated introductory paragraph and to paragraph (a) of Sec.
206.48.
Table 2--Summary of the Impacts of the Proposed Rule (2018$)
------------------------------------------------------------------------
Category Summary
------------------------------------------------------------------------
Proposed Changes............. Replace the per capita indicator of $1.50
with $2.32 to account for inflation from
1986-1999 and then adjust by State TTR
annually.
Replace the minimum threshold of
$1,000,000 with $1,535,000 and adjust by
CPI-U annually.
Use PEP annual population estimates
instead of decennial census data to
calculate the State COA indicators.
Technical and grammatical changes to 44
CFR 206.48(a).
Affected Population.......... Applicants eligible to submit an
application for a PA project, include 56
State and Territorial governments, 573
Federally recognized Indian Tribal
governments, local governments, and
certain private nonprofit organizations
(PNPs). From 2008-2017, 7,456 Applicants
would have been impacted by the proposed
rule.
Transfers.................... $208.76 million annualized and $1.47
billion and $1.78 billion 10-year
monetized reduction in transfers to the
Applicants from FEMA at 7 and 3 percent
discount rates, respectively.
Cost Savings (due to reduced $62.71 million annualized and $440.45
disaster declaration million and $534.93 million 10-year
requests and applications). monetized FEMA costs savings at 7 and 3
percent discount rates, respectively.
$8.04 million annualized; and $56.44
million and $68.55 million 10-year
monetized; Applicant cost savings at 7
and 3 percent discount rates,
respectively.
Costs (quantitative)......... $5,274 and $4,513 annualized; and $37,042
and $38,496 10-year monetized costs to
Applicants and FEMA at 7 and 3 percent
discount rates, respectively.
Costs (qualitative).......... Applicants would need to invest more in
response recovery, and mitigation
capabilities. Damaged facilities may not
be repaired or replaced and could be
susceptible to future disasters.
Benefits (quantitative)...... No quantitative benefits.
Benefits (qualitative)....... Provide FEMA with a more accurate
assessment of whether an incident has
exceeded an Applicant's capabilities to
respond to and recover from an incident.
Incentivize Applicants to invest more in
response, recovery, and mitigation
capabilities, and increase overall
national preparedness for incidents.
Allow FEMA to refine its focus and
resources on large-scale disasters.
------------------------------------------------------------------------
[[Page 80732]]
Affected Population
The proposed rule would reduce the number of major disaster
declarations authorizing PA and therefore affect all non-Federal
entities that are eligible to request PA following a Federal major
disaster declaration. Eligible applicants for PA include 50 State and 6
Territorial governments, and the District of Columbia as well as 573
Federally recognized Indian Tribal governments,\112\ local governments,
and certain PNPs. A disaster declaration is done at the State level,
but the Applicants fill out the forms for PA eligibility and to receive
funding once PA funding is made available through a declaration. For
simplicity, FEMA refers to the affected population as Applicants
throughout the RIA. If this proposed rule had been in effect from 2008-
2017, 7,456 Applicants for 159 PA disasters would have been impacted by
the proposed rule. These Applicants would have had a reduction in grant
funding, including funding and management costs for PA, funding and
management costs for HMGP, and funding and management costs for BRIC.
These Applicants would have also had paperwork cost savings for not
filling out the forms to determine eligibility and receive funding.
---------------------------------------------------------------------------
\112\ As noted above, Tribal governments may directly submit a
request for a major disaster declaration to FEMA under the Tribal
Declarations Pilot Guidance, instead of requesting assistance
through the State. The potential impacts of this proposed rule are
discussed in more detail below and in the RIA. See Section 13 of the
RIA.
---------------------------------------------------------------------------
Reduction in Disaster Declarations
As discussed later in this analysis, FEMA used data for the PA
disasters from fiscal years (FY) 2008-2017 to estimate how the proposed
rule would impact the number of PA disasters and the funding and costs
associated with those PA disasters. FEMA used historical data on the
estimated impacts on PA disasters from 2008-2017 as a proxy to estimate
the impacts over the next ten years after this rule becomes final and
effective. FEMA found there were a total of 585 PA disasters over the
10-year period of analysis, an average of 59 disasters per year. FEMA
estimates that there likely would be 159 PA disasters that would no
longer be declared disasters under the proposed rule, an average of 16
fewer PA disasters declared per year as discussed further in the RIA.
This represents a 27 percent reduction in PA disasters declared from
2008-2017 under this proposed rule.
Transfers
Transfer payments are monetary payments from one group to another
that do not affect the total resources available to society. Transfers
can have significant efficiency effects in addition to distributional
effects and are not included in the estimates of the benefits and costs
of a regulation. Transfers are analyzed in this RIA because grants,
i.e. those grants made by FEMA for PA, are considered transfers.
The reduction in PA disasters would result in a reduction in grant
funding to the PA Applicants. The reduction in funding from these
programs equates to a reduction in transfers from FEMA to the
Applicants. FEMA estimates the total 10-year undiscounted transfers of
the proposed rulemaking would be $2.09 billion. The total 10-year
discounted transfers would be $1.47 billion at a 7 percent discount
rate and 1.78 billion at a 3 percent discount rate, with annualized
transfers of $208.76 million at both 7 and 3 percent discount rates
(Table 3).
Table 3--Total Estimated Transfers of the Proposed Rule
[2018$]
----------------------------------------------------------------------------------------------------------------
Total Discounted
undiscounted -------------------------------
reduction in
Year transfers from
FEMA to 7% 3%
applicants
----------------------------------------------------------------------------------------------------------------
1............................................................... $208,758,700 $195,101,589 $202,678,350
2............................................................... 208,758,700 182,337,933 196,775,097
3............................................................... 208,758,700 170,409,284 191,043,783
4............................................................... 208,758,700 159,261,013 185,479,401
5............................................................... 208,758,700 148,842,068 180,077,088
6............................................................... 208,758,700 139,104,736 174,832,125
7............................................................... 208,758,700 130,004,427 169,739,927
8............................................................... 208,758,700 121,499,464 164,796,046
9............................................................... 208,758,700 113,550,901 159,996,161
10.............................................................. 208,758,700 106,122,337 155,336,078
-----------------------------------------------
Total....................................................... 2,087,587,000 1,466,233,752 1,780,754,055
----------------------------------------------------------------------------------------------------------------
Annualized...................................................... 208,758,700 208,758,700
----------------------------------------------------------------------------------------------------------------
Cost Savings
The proposed rulemaking would result in administrative cost savings
for FEMA, and paperwork cost savings for the Applicants and FEMA due to
a decrease in the number of PA, BRIC, and HMGP applications resulting
from fewer disaster declarations. A reduction in declarations would
allow FEMA to focus its efforts and resources on larger disasters
without the complications of reallocating response resources from
multiple smaller scale commitments. The 10-year undiscounted FEMA cost
savings resulting from the proposed rule would be $627.10 million
($440.45 million discounted at 7 percent discount rate and $534.92
million at a 3 percent discount rate; $62.71 million annualized at both
7 and 3 percent discount rates). FEMA estimates the 10-year
undiscounted Applicant cost savings would be $73.30 million ($51.48
million at 7 percent and $62.53 million at 3 percent; $7.33 million
annualized at both 7 and 3 percent). The total 10-year undiscounted
cost savings for both FEMA and the Applicants would be $700.40 million,
because there would be fewer requests for disasters to be declared and
there would be fewer Applicants able to apply for relief. The
[[Page 80733]]
10-year total discounted cost savings would be $491.93 million at 7
percent and $597.46 million at 3 percent, with an annualized cost
savings of $70.75 million (Table 4).
Table 4--Total Estimated Cost Savings of the Proposed Rule
[2018$]
----------------------------------------------------------------------------------------------------------------
Total Discounted
Year Applicant cost FEMA cost undiscounted -------------------------------
savings savings cost savings 7% 3%
----------------------------------------------------------------------------------------------------------------
1............................... $8,035,714 $62,710,053 $70,745,767 $66,117,539 $68,685,211
2............................... 8,035,714 62,710,053 70,745,767 61,792,093 66,684,671
3............................... 8,035,714 62,710,053 70,745,767 57,749,619 64,742,399
4............................... 8,035,714 62,710,053 70,745,767 53,971,607 62,856,698
5............................... 8,035,714 62,710,053 70,745,767 50,440,754 61,025,920
6............................... 8,035,714 62,710,053 70,745,767 47,140,892 59,248,466
7............................... 8,035,714 62,710,053 70,745,767 44,056,908 57,522,783
8............................... 8,035,714 62,710,053 70,745,767 41,174,681 55,847,362
9............................... 8,035,714 62,710,053 70,745,767 38,481,010 54,220,740
10.............................. 8,035,714 62,710,053 70,745,767 35,963,561 52,641,495
-------------------------------------------------------------------------------
Total....................... 80,357,140 627,100,530 707,457,670 496,888,663 603,475,742
----------------------------------------------------------------------------------------------------------------
Annualized...................... .............. .............. .............. 70,745,767 70,745,767
----------------------------------------------------------------------------------------------------------------
Costs
The proposed rule would substantively revise the estimated cost of
the assistance disaster declaration factor. The proposed rule would not
create new factors for FEMA to consider when reviewing a request for a
PA disaster. FEMA would not change its current process for updating the
per capita indicator or PA damage thresholds. FEMA's current practice
is to update the per capita indicator each fiscal year to adjust for
inflation using the for CPI-U and post the updated indicator on the
Federal Register and FEMA website. The proposed rule would also require
FEMA to update the minimum threshold every year to adjust for
inflation. This is a new practice that FEMA is implementing to more
accurately gauge a State's fiscal capacity to respond to disasters, as
the threshold has not been updated since it was introduced in 1999.
However, FEMA already calculates the change in CPI-U to apply to the
per capita indicator each year. FEMA would apply the same change in
CPI-U used to update the per capita indicator to the minimum threshold.
The proposed rule would require FEMA to adjust the per capita indicator
for each State's TTR, which is a new practice. FEMA estimates it would
cost $12 per year for a FEMA employee to adjust the per capita
indicator by TTR annually.
FEMA would continue to post the updated per capita indicator each
fiscal year and would not require any additional annual calculations or
data requirements from the Applicants. The proposed rule would impose a
one-time cost of $39,545 to the Applicants to familiarize themselves
with the proposed changes the first year (Table 5). The minimum
threshold would now be published yearly along with the per capita
indicator. Because Applicants already look up the per capita indicator,
FEMA does not expect additional costs associated with also looking up
the minimum threshold. The proposed changes could impose qualitative
costs that FEMA was unable to quantify. Qualitative costs are discussed
in the RIA. Transferring the costs of PA disasters to Applicants would
require the Applicants to invest more in response, recovery, and
mitigation capabilities. It is possible that without Federal
assistance, Applicants may opt to not repair damaged facilities or pay
for other recovery efforts. Damaged facilities that are not repaired or
replaced could be more susceptible to subsequent incidents in the
future. Additionally, damaged facilities that are not repaired or
replaced may no longer be used, which could be a significant loss of
infrastructure to small governments who might opt to not repair damaged
facilities due to fiscal limitations.
Table 5--Total Estimated Costs of the Proposed Rule
[2018$]
----------------------------------------------------------------------------------------------------------------
Total Discounted
Year Applicant FEMA costs undiscounted -------------------------------
costs costs 7% 3%
----------------------------------------------------------------------------------------------------------------
1............................... $39,545 $12 $39,557 $36,969 $38,405
2............................... 0 12 12 10 11
3............................... 0 12 12 10 11
4............................... 0 12 12 9 11
5............................... 0 12 12 9 10
6............................... 0 12 12 8 10
7............................... 0 12 12 7 10
8............................... 0 12 12 7 9
9............................... 0 12 12 7 9
10.............................. 0 12 12 6 9
-------------------------------------------------------------------------------
Total....................... 39,545 120 39,665 37,042 38,496
----------------------------------------------------------------------------------------------------------------
[[Page 80734]]
Annualized...................... .............. .............. .............. 5,274 4,513
----------------------------------------------------------------------------------------------------------------
Benefits
FEMA was unable to quantify benefits of the proposed regulatory
changes due to a lack of data on future impacts of adjusting
declaration factors. FEMA instead focused on proposed regulatory
changes that would provide FEMA with a more accurate assessment of
whether an incident has exceeded an Applicant's capabilities to respond
to and recover from an incident. This is because the minimum threshold
and per capita indicator have not consistently been updated to account
for inflation, and not based on a State's fiscal capacity to respond.
The proposed changes would ensure that these factors are taken into
account. FEMA believes that the proposed changes also would incentivize
Applicants to invest more in response, recovery, and mitigation
capabilities, since Federal assistance would be focused on larger-scale
disasters, and Applicants will have more responsibility to ensure they
are adequately equipped to handle smaller disasters. This would provide
a better distribution of responsibilities between the Applicants and
the Federal Government. These incentives would increase overall
national preparedness for incidents. In addition, FEMA believes these
changes to the PA declaration factors would result in a reduction in
the number of declarations for smaller incidents, allowing FEMA to
refine its focus and resources on larger incidents without the
complications of reallocating response resources from multiple smaller-
scale commitments, that States and local governments would have the
capacity to manage without Federal assistance. FEMA requests public
comment on the ability of Applicants to invest more in response,
recovery, and mitigation capabilities.
Summary
Table 6 provides a summary of the annual and total quantified
costs, cost savings, and reduction in transfers by category after
implementation of the proposed rule, and Table 7 provides the A-4
accounting summary.
Table 6--Summary of Transfers and Cost Savings of the Proposed Rule
------------------------------------------------------------------------
Annual
Transfer, cost, or cost savings item undiscounted
------------------------------------------------------------------------
Reduction in Transfers
PA Funding.......................................... $144,534,939
HMGP Funding........................................ 33,330,171
BRIC Funding........................................ 7,267,390
PA Management Cost Funding.......................... 17,344,193
HMGP Management Cost................................ 4,999,526
Funding
BRIC Management Cost Funding........................ 1,282,481
---------------
Total Reduction in Transfers.................... 208,758,700
------------------------------------------------------------------------
Cost Savings
Applicant Paperwork Cost Savings.................... 8,035,714
FEMA Administrative Cost............................ 62,409,381
Savings
FEMA Paperwork Cost Savings......................... 300,672
Total FEMA Cost Savings............................. 62,710,053
---------------
Total Cost Savings (Applicants and FEMA)........ 70,745,767
------------------------------------------------------------------------
Costs
Applicant Costs.....................................
Year 1.......................................... 39,545
Years 2-10...................................... 0
FEMA Costs.......................................... 12
---------------
Total Costs, Year 1............................. 39,557
Total Costs, Years 2-10......................... 12
------------------------------------------------------------------------
[[Page 80735]]
Table 7 A-4 Accounting Statement
[$2018]
----------------------------------------------------------------------------------------------------------------
Period of Analysis: 2008 to 2017
-----------------------------------------------------------------------------------------------------------------
7 percent discount 3 percent discount
Category rate rate Source citation (RIA, preamble, etc.)
----------------------------------------------------------------------------------------------------------------
BENEFITS:
Annualized Quantified........ N/A N/A
----------------------------------------------------------------------------------------------------------------
Qualitative.................. Provide FEMA with a more RIA Section 12.
accurate assessment of whether an
incident exceeds Applicant
capabilities.
Allow FEMA to focus efforts
and resources on larger incidents.
Provide better distribution
of responsibilities between Applicants
and the Federal Government.
----------------------------------------------------------------------------------------------------------------
COSTS:
Annualized Monetized 0.005274 0.004513 RIA Section 8.
$millions/year.
----------------------------------------------------------------------------------------------------------------
Annualized quantified............ N/A N/A
----------------------------------------------------------------------------------------------------------------
Qualitative.................. Applicants would need to
invest more in response, recovery, and
mitigation capabilities.
Damaged facilities may not be
repaired or replaced, and could be
susceptible to future disasters.
----------------------------------------------------------------------------------------------------------------
COST SAVINGS:
Annualized Monetized 70.75 70.75 RIA Section 8.
$millions/year.
----------------------------------------------------------------------------------------------------------------
TRANSFERS:
Annualized Monetized 208.76 208.76 RIA Section 9.
$millions/year.
----------------------------------------------------------------------------------------------------------------
From/To...................... Reduction in transfers from FEMA to PA RIA Section 9.
Applicants
----------------------------------------------------------------------------------------------------------------
Category Effects Source citation
(RIA, preamble, etc.)
----------------------------------------------------------------------------------------------------------------
State, Local, and/or Tribal Included in the Cost Savings is $5.88 RIA.
Government. million annual paperwork cost savings
to Applicants. Included in the
Transfers is $8.48 million in PA
funding that Tribal Applicants would
not have received from 2008-20187.
However, $7.11 of that funding would
have potentially been available for
Tribal governments had that requested
a disaster declaration under the
Tribal Declarations Pilot Guidance.
----------------------------------------------------------------------------------------------------------------
Small business................... There were 7,456 unique Applicants for RFA (IRFA).
the 159 removed PA disasters from 2008-
2017. Using a sample size of 380, FEMA
found that 79% were likely to be small
entities (5,890 Applicants). The
average PA funding received per small
entity in the sample was $168,046,
with a range from a low of $0 to a
high of $20.65 million. If the changes
in the proposed rule were in effect,
these entities would not have received
this PA funding.
----------------------------------------------------------------------------------------------------------------
Wages............................ None.
----------------------------------------------------------------------------------------------------------------
Growth........................... None.
----------------------------------------------------------------------------------------------------------------
[[Page 80736]]
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires agency review of proposed and final rules to assess their
impact on small entities. When an agency promulgates a notice of
proposed rulemaking under 5 U.S.C. 553, the agency must prepare an
initial regulatory flexibility analysis (IRFA) unless it determines and
certifies pursuant to 5 U.S.C. 605(b) that a rule, if promulgated,
would not have a significant impact on a substantial number of small
entities. However, FEMA is publishing this IRFA to aid the public in
commenting on the potential small entity impacts of the proposed
requirements in this NPRM. FEMA invites all interested parties to
submit data and information regarding the potential direct economic
impacts on small entities that would result from the adoption of this
NPRM. FEMA will consider all comments received in the public comment
process.
In accordance with 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 prepared
this IRFA to examine the impacts of the proposed rule on small
entities. A small entity may be: A small independent business, defined
as independently owned and operated, is organized for profit, and is
not dominant in its field per the Small Business Act (5 U.S.C. 632); a
small not-for-profit organization (any not-for-profit enterprise which
is independently owned and operated and is not dominant in its field);
or a small governmental jurisdiction (locality with fewer than 50,000
people) per 5 U.S.C. 601-612.
FEMA has discussed most of these issues in other sections of the
NPRM and in the stand-alone RIA found in the docket of this rulemaking.
In this section, FEMA will address the issues specific to the analysis
of small entities that have not been addressed elsewhere.
1. A description of the reasons why action by the agency is being
considered.
FEMA is proposing to amend the estimated cost of the assistance
factor, including the minimum threshold, in 44 CFR 206.48. Pursuant to
44 CFR 206.48, FEMA considers several factors when determining whether
to recommend that the President declare a major disaster authorizing
the PA program. Since 1986, FEMA has evaluated the estimated cost of
Federal and non-Federal public assistance against the statewide
population and used a per capita dollar amount (set at $1 in 1986) as
an indicator that a disaster may warrant Federal assistance. FEMA did
not increase the indicator until 1999, when it began adjusting for
inflation in 1999 and annually thereafter. Also, in 1999, FEMA
established a $1 million minimum threshold, meaning it would not
recommend that the President authorize the PA program unless there was
at least $1 million in PA damage, which FEMA believed was a level of
damage even the least populous States could handle with their own
resources. FEMA has never increased this threshold. The current per
capita indicator and minimum threshold do not provide an accurate
measure of States' capabilities to respond to disasters. The lack of
increases to the per capita indicator from 1986 to 1999 undercut the
value of this factor as an indicator of State capacity given the
inflation increases during that time. With respect to the minimum
threshold, a 1999 determination by FEMA that all States could handle at
least $1.0 million in damages with their own resources is outdated
given the 53.5 percent increase from 1999 in the inflation rate over
the last 20 years and rising State budgets and expenditures.\113\
---------------------------------------------------------------------------
\113\ January 1999 CPI-U of 164.3 and August 2018 CPI-U of
252.146. Calculation: (252.146-164.3)/164.3 = 53.5% (rounded).
---------------------------------------------------------------------------
Additionally, FEMA proposes to use the U.S. Census Bureau's annual
population estimates produced under the PEP instead of the decennial
census population data when calculating the State COA indicators. These
changes would ensure a more accurate assessment of an individual
State's financial capability to respond to and recover from a disaster,
which would better enable FEMA to achieve its readiness and
preparedness missions by allowing FEMA to expend more attention and
resources on disasters that exceed the States' capabilities.
2. A succinct statement of the objectives of, and legal basis for,
the proposed rule.
Section 1239 of DRRA directs FEMA to review the factors it
considers when evaluating a request for a major disaster declaration,
specifically the estimated cost of assistance factor, and to initiate
rulemaking to update the declaration factors. FEMA proposes to amend 44
CFR 206.48(a) to make changes to the estimated cost of assistance
factor.
FEMA is proposing to revise the cost of assistance estimates factor
in 44 CFR 206.48(a)(1) by increasing the per capita indicator to
account for inflation from 1986 to 1999 and adjusting the individual
States' indicators by their TTR, and by increasing the minimum
threshold by accounting for inflation from 1999 to 2019, and annually
thereafter. FEMA also proposes to use the U.S. Census Bureau's annual
population estimates produced under PEP instead of the decennial census
population data. These changes would provide FEMA with a better
informed and more accurate assessment of whether an incident has
exceeded State capabilities when it makes its recommendations to the
President; incentivize States to invest more in response, recovery, and
mitigation capabilities, which would provide a better distribution of
responsibilities between the States and the Federal Government and
better overall national preparedness for disasters; and the associated
reductions in declarations of smaller incidents would allow FEMA to
better focus its efforts and resources on large disasters without the
complications of reallocating resources from multiple smaller-scale
commitments.
3. A description of and, where feasible, an estimate of the number
of small entities to which the rule will apply.
The proposed rule directly affects all Applicants that are eligible
to request PA under a Federal major disaster declaration authorizing
PA. Eligible Applicants for PA include: State and Territorial
governments, including the District of Columbia, American Samoa, the
Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and
the U.S. Virgin Islands; federally recognized Indian Tribal
Governments, including Alaska Native villages and organizations; local
governments; and certain private nonprofits.\114\
---------------------------------------------------------------------------
\114\ To be an eligible private nonprofit applicant, the private
nonprofit must show that it has: A current ruling letter from the
U.S. Internal Revenue Service granting tax exemption under sections
501(c), (d), or (e) of the Internal Revenue Code of 1954, or
documentation from the State substantiating it is a non-revenue
producing, nonprofit entity organized or doing business under State
law. Additionally, prior to determining whether the private
nonprofit is eligible, FEMA must first determine whether the private
nonprofit owns or operates an eligible facility.
---------------------------------------------------------------------------
FEMA reviewed the PA disasters that it identified that likely would
not have been declared from 2008-2017 due to the proposed rule, as
presented in Table 8-1 in Section 8 of the stand-alone RIA found in the
docket of this rulemaking, to estimate the number of small entities to
which the proposed rule would apply. For each of the 159 PA disasters
removed, FEMA used PA data in FEMA's Enterprise Data Warehouse (EDW)
database to identify the Applicants for each of the PA disasters.
[[Page 80737]]
FEMA found there were 7,456 unique Applicants for the 158 PA disasters.
FEMA selected a random sample of 383 Applicants from the 7,456
unique Applicants to estimate the percentage that are small
entities.\115\ The term ``small entities'' includes small businesses
that meet the Small Business Administration (SBA) size standard for
small business concerns at 13 CFR 121.201, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with population of less than
50,000. FEMA researched and found data and information on 383 randomly
sampled Applicants. FEMA found that of the 383 Applicants, 25 were
classified as State governments, 312 were local governments, 3 were
Tribal governments, and 43 were nonprofits. FEMA removed the 3 Tribal
governments from the sample as they are sovereign entities and are not
covered by the RFA. State governments are not considered small entities
because they have populations greater than 50,000. For the Applicants
classified as local governments, FEMA used 2010 decennial Census Bureau
population data to determine the Applicant population size. Of the 312
local governments, 259 (or 83 percent) had populations below 50,000 and
would be considered as small entities. For nonprofit Applicants, FEMA
reviewed the nonprofit's website utilizing an open source database
(Manta.com) and any other publicly available information to determine
the size of the nonprofit and ownership. FEMA researched the 43 private
nonprofits and found that all of them were independently owned and
operated and are not dominant in their field. Therefore, FEMA assumed
all 43 private nonprofits were likely to be small entities. Table 8
summarizes the findings of the small entity threshold analysis.
---------------------------------------------------------------------------
\115\ FEMA used Slovin's formula to determine the sample size.
Using a 95 percent confidence interval, a sample size of 380
recipients and subrecipients is sufficient. Slovin's formula = N/
(1+Ne[supcaret]2) = 7,456/(1 + 7,456 * (0.05[supcaret]2)) = 379.633,
rounded up to 380.
Table 8--Summary of Applicants in Sample
----------------------------------------------------------------------------------------------------------------
Exceed small Below small
Type of recipient or subrecipient entity entity Total
threshold threshold
----------------------------------------------------------------------------------------------------------------
State Government................................................ 25 0 25
Local Government................................................ 53 259 312
Private Nonprofits.............................................. 0 43 43
Total........................................................... 78 302 380
Percentage...................................................... 21% 79% 100%
----------------------------------------------------------------------------------------------------------------
Of the 380 Applicants, FEMA found that 302 entities were small as
defined by the SBA thresholds. Therefore, FEMA estimates that 79% of
the total 7,456 Applicants of PA were small entities (5,890 Applicants
were small entities). The 302 sampled small entities received a total
of $50.75 million in PA funding for the disasters removed from 2008-
2017 according to FEMA's EDW database. If the changes in the proposed
rule were in effect, these entities would not have received this PA
funding. The average PA funding received per small entity in the sample
was $168,046 over the 10-year period. The PA funding a small entity
received ranged from a low of $0 to a high of $20.65 million. Of the
302 small entities, 4 received $0 in PA funding. FEMA welcomes any data
or comments from the public on the number of small entities that may be
impacted by this proposed rule an any impacts to those small entities.
4. A description of the projected reporting, recordkeeping and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
The proposed rule would call for a revision of a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). This proposed rule would call for amendments to the existing
collection requirements previously approved under the collections of
information (COI) with OMB Control Numbers 1660-0009 and 1660-
0017.\116\ The costs associated with COI 1660-0009 include the time and
cost burden for an Applicant to request a disaster declaration. A
request for a disaster declaration comes from the State level. There is
no burden for small entities included in COI 1660-0009, as the burden
to complete FEMA form 010-0-13 is completed by the equivalent of a
State Government Chief Executive and a State Administrative Support
Worker. Therefore, there is no paperwork burden impact to small
entities for COI 1660-0009.
---------------------------------------------------------------------------
\116\ ``Public Assistance Program'', 1660-0017 can be found at
https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201902-1660-001. The most recently approved ICR at the time of this analysis was
ICR Reference Number 201902-1660-001. ``The Declaration Process:
Requests for Preliminary Damage Assessment (PDA), Requests for
Supplemental Federal Disaster Assistance, Appeals, and Requests for
Cost Share Adjustments'', 1660-0009 can be found at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201905-1660-003. The
most recently approved ICR at the time of this analysis was ICR
Reference Number 201905-1660-003.
---------------------------------------------------------------------------
The costs associated with COI 1660-0017 include the time and cost
burden for Applicants to provide FEMA information that is required for
PA program eligibility determinations, grants management, and
compliance with other Federal laws and regulations. For the 159 PA
disasters removed from 2008-2017 from this proposed rule, there would
be a reduction in paperwork burden for Applicants that applied for the
PA program, as covered by COI 1660-0017. There would be a reduction in
respondents for FEMA Forms 009-0-49, 009-0-91, 009-0-91A, 009-0-91B,
009-0-91C, 009-0-91D, 009-0-120, 009-0-121, 009-0-123, 009-0-124, 009-
0-125, 009-0-126, 009-0-127, 009-0-128, and 009-0-141. The number of
respondents would not change for FEMA Form 009-0-111, State
Administrative Plan and State Plan Amendments (no form), Request for
Appeals and Recommendation (no form), and Requests for Arbitration and
Recommendation resulting from Hurricanes Katrina or Rita (no form), as
these forms are not impacted by the proposed rule.
The burden per response varies by form (see Table 9 in Section E,
Paperwork Reduction Act of 1995). The number of forms each Applicant
fills out varies by Applicant and by disaster. If an Applicant fills
out every form impacted by this proposed rule, the maximum burden per
Applicant is 11.4
[[Page 80738]]
hours (found using the ``Average Hourly Burden'' column in Table 9,
excluding those forms or items not impacted by the proposed rule).
Therefore, small entities would have a maximum reduction of 11.4 hours
of paperwork burden for each PA disaster removed due to the proposed
rule. FEMA previously estimated that 79% of the total 7,456 Applicants
of PA for the 159 removed PA disasters were small entities (5,890
Applicants were small entities). If all 5,890 small entity Applicants
had filled out every form impacted by the proposed rule, there would
have been a reduction in paperwork burden of 67,146 hours (5,890 small
entities x 11.4 hours) from 2008-2017. There are no additional
reporting, recordkeeping, or other compliance requirements resulting
from this proposed rule.
5. An identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap or conflict with the
proposed rule.
There are no relevant Federal rules that may duplicate, overlap, or
conflict with this proposed rule.
6. A description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities.
FEMA considered several alternatives to the proposed changes to the
per capita indicator and the minimum threshold. The alternatives are
described in more detail in Section 15 of the stand-alone RIA found in
the docket of this rulemaking. Because PA is approved at the State
level, this proposed rule would only directly affect States. Small
entities would be indirectly affected by a reduction in declared
disasters at the State level, but FEMA is unable to address the impacts
to small entities directly. A summary of those alternatives follows.
FEMA considered two alternatives to adjusting the per capita
indicator: adjusting the per capita indicator by PCPI and adjusting the
per capita indicator by PCPI and then adjusting by TTR. The preliminary
estimate for 2018 US PCPI is $53,712.\117\ FEMA established the per
capita indicator at $1 in 1986 based on the 1983 US PCPI, which was the
latest available published information at the time. The PCPI used to
set the original per capita indicator was $11,687.\118\ PCPI increased
by 360 percent from 1983 to 2018 (($53,712-$11,687)/$11,687). FEMA used
the PCPI estimate of $11,687 from the 1986 proposed rulemaking as this
was the data FEMA used to set the original per capita indicator.
Applying the increase in PCPI to the original per capita indicator of
$1 would result in a per capita indicator of $4.60. The per capita
indicator alternatives resulted in per capita indicators that were
higher than the proposed changes, which would result in more PA
disasters that would not have exceeded the proposed thresholds from
2008-2017. Fewer PA disasters would result in more small entities
impacted by the proposed rule, since fewer declared disasters would
lead to a reduction in Public Assistance provided to local governments
and Private Non-Profits within each State. FEMA rejected the PCPI-based
per capita indicator thresholds because FEMA believed the resulting per
capita indicators may be too high for some States to meet. Moreover,
the potentially large changes to PCPI from year to year, in comparison
to changes to the CPI-U, could result in instability and uncertainty in
what the per capita indicator may be each year for individual States
and make it more difficult for States to plan.
---------------------------------------------------------------------------
\117\ State Annual Personal Income, 2018 (Preliminary) and State
Quarterly Personal Income, 4th Quarter 2018, Table 1: Personal
Income, Population, and Per Capita Personal Income, by State and
Region, 2017-2018, https://www.bea.gov/system/files/2019-03/spi0319.pdf.
\118\ Disaster Assistance; Subpart C, the Declaration Process
and State Commitments, 51 FR 13333, Apr. 18, 1986, found at https://cdn.loc.gov/service/ll/fedreg/fr051/fr051075/fr051075.pdf. FEMA
began using $1 per capita informally in 1986. Revisions were made to
the BEA 1983 PCPI after publication of the proposed 1986 rule. FEMA
used the PCPI of $11,687 to maintain consistency with the data used
at the time of establishing the per capita indicator.
---------------------------------------------------------------------------
FEMA considered four alternatives to adjusting the minimum
threshold using CPI-U: Using the change in GDP, State expenditures, or
TTR to adjust the minimum threshold, or using FEMA administrative costs
to calculate a minimum threshold for which FEMA's administrative burden
exceeded the amount of Federal assistance provided. The minimum
threshold alternatives resulted in minimum thresholds that were higher
than the proposed minimum threshold and would have led to a 1 percent
increase in the PA disasters that would not have exceeded the
thresholds. Fewer PA disasters could result in more small entities
impacted by the proposed rule. FEMA rejected adjusting the minimum
threshold using the change in GDP, State expenditures, or TTR because
the alternatives increase the complexity of calculating the threshold,
but have little additional impact on the reduction in total PA
disasters.
FEMA rejected using administrative costs to calculate a minimum
threshold because FEMA was unable to derive a specific dollar value of
estimated PA obligations at which the proportion of administrative
costs relative to PA obligations could justify that a prospective
minimum threshold be set at that amount. Based on FEMA's analysis of
available information across all PA disasters in the past ten years,
there is no specific size of PA disaster at which point administrative
costs exceed the amount of PA assistance, or where excessive
administrative costs essentially renders such PA assistance ineffectual
from a Federal cost standpoint.
FEMA considered the following two alternatives that would have a
smaller impact on small entities.
(a) No Regulatory Action
FEMA considered not proposing the minimum threshold and per capita
indicator regulatory changes in this proposed rule. FEMA rejected this
alternative because section 1239 of the DRRA directs FEMA to review the
factors it considers when evaluating a request for a major disaster
declaration, specifically the estimated cost of assistance factor, and
to initiate rulemaking to update the declaration factors. Additionally,
the lack of increases to the per capita indicator from 1986 to 1999
undercuts the value of this factor as an indicator of State capacity
given the increases in inflation during that time. For the minimum
threshold, the lack of an increase since 1999 has prevented this factor
from keeping pace with inflation, and rising State budgets and
resources. By not proposing the per capita indicator and minimum
threshold regulatory changes in the proposed rule, FEMA would be
relying upon per capita indicator and minimum threshold factors that
are no longer adequate measures of a State's capability to respond to
and recover from a disaster. The no regulatory action alternative would
result in a greater likelihood that the President declares major
disaster declarations for relatively small incidents that a more
accurate assessment would find is within a State's financial
capabilities to respond to on its own.
(b) Population Alternative
FEMA considered continuing to use the US Census Bureau's decennial
census population estimates instead of the proposed PEP annual
estimates. FEMA found that using the decennial populations instead of
the PEP annual estimates would have resulted in a reduction of 148 PA
disasters from
[[Page 80739]]
2008-2017, an average of 15 per year. This is a difference of 10
disasters from when FEMA used the proposed PEP annual populations in
the analysis. This difference was a result of the States having a
higher population with the PEP annual population estimates compared to
the decennial population, and therefore a higher State COA indicator.
FEMA rejected this alternative because FEMA's reliance on
population data from the most recent decennial survey can lead to an
imprecise assessment of a State's capabilities to respond to and
recover from a disaster on its own. Decennial population data can lead
to an inaccurate per capita indicator for States experiencing rapid
changes in population. This could result in a greater likelihood that
the President declares major disaster declarations for relatively small
incidents that are within a State's financial capabilities to respond
to on its own after it has experienced rapid population growth, or,
conversely, a likelihood that the President does not declare major
disaster declarations for incidents that may actually exceed a State's
capabilities to respond to on its own where that State's population has
rapidly decreased.
More detailed information on the alternatives can be found in
Section 15 of the stand-alone RIA found in the docket of this
rulemaking.
7. Conclusion
FEMA is interested in the potential impacts of the proposed rule on
small entities and requests public comment on these potential impacts.
If you think that this rule will have a significant economic impact on
you, your business, or your organization, please submit a comment to
the docket at the address under ADDRESSES in the rule. In your comment,
explain why, how, and to what degree you think this rule will have an
economic impact on you. FEMA is also interested in less burdensome
alternatives for small entities. If you know of less burdensome
alternatives, please include them in your comment.
C. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more (adjusted
annually for inflation) in any one year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
FEMA has determined that this proposed rule can be excluded from this
assessment as the proposed 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 government.'' Therefore, no actions are deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
D. National Environmental Policy Act of 1969 (NEPA)
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 proposed rule amends an existing regulation without changing its
environmental effect, which meets Categorical Exclusion A3(d). This
proposed rule is a narrowly crafted revision to FEMA's existing
regulations updating the criteria that FEMA considers when recommending
an area eligible for PA under a major disaster declaration. The
proposed rule is not part of any larger regulatory action. Further,
there are no extraordinary circumstances present that would create the
potential for a significant environmental impact. Therefore, each of
the conditions for application of categorical exclusion A3(d) is
satisfied, and this action is categorically excluded from further NEPA
review.
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
Under the Paperwork Reduction Act of 1995, as amended, 44 U.S.C.
3501-3520, an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless the agency
obtains approval from the Office of Management and Budget (OMB) for the
collection and the collection displays a valid OMB control number. See
44 U.S.C. 3506, 3507. This rulemaking contains a collection of
information, as defined by the Paperwork Reduction Act of 1995, as
amended, 44 U.S.C. 3501-3520. This action contains proposed amendments
to the existing information collection requirements previously approved
under OMB Control Number 1660-0009 and 1660-0017. As required by the
Paperwork Reduction Act of 1995, FEMA has submitted these proposed
collection amendments to OMB for its review.
Collection of Information Number 1660-0009
Title: The Declaration Process: Requests for Preliminary Damage
Assessment (PDA), Requests for Supplemental Federal Disaster
Assistance, Appeals, and Requests for Cost Share Adjustments.
OMB Control Number: 1660-0009.
Type of information collection: Revision of a currently approved
collection.
Form Numbers: FEMA Forms 010-0-13 and 009-0-140 (used by FEMA
personnel or contractors only).
Summary of the Collection of Information: 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 using FEMA Form 010-0-13. The information obtained by joint
Federal, State, and
[[Page 80740]]
local preliminary damage assessments is 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 and
a copy of the Governor's request to the President. 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.
Need for Information: The Stafford Act requires that all requests
for a major disaster or emergency declaration be made by the Governor
of the affected State or the Chief Executive of an affected Indian
tribal government. Section 401(a) of the Stafford Act stipulates that
such a request shall 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 government, and that
Federal assistance is necessary. Section 401(a) further stipulates that
as a part of such request, and as a prerequisite to major disaster
assistance under the Stafford Act, the Governor shall take appropriate
response action under State law and direct the execution of the State's
emergency plan and shall furnish specific information that must be
included in a request for a major disaster declaration. Section 401(a)
stipulates that the request must include specific information on the
nature and amount of State and local resources which have been or will
be committed to alleviate the results of the disaster. Section 501(a)
requires the same information to be provided in requests for
declarations of an emergency.
Use of Information: This collection includes FEMA Form 010-0-13,
Request for Presidential Disaster Declaration Major Disaster or
Emergency, which asks for the same data that were stated and required
in the previous narrative Governor's requests to the President
requesting supplemental Federal assistance, through the appropriate
Regional Administrator, combined with the findings of a joint FEMA,
State and local Preliminary Damage Assessment (PDA). The PDA is
analyzed and provides the basis for a Regional Summary, Analysis, and
Recommendation, which is submitted to the Assistant Administrator of
the Disaster Assistance Directorate. The information is reviewed and
evaluated, and the Administrator formulates a recommendation which is
submitted to the President for consideration of a disaster or emergency
declaration. The FEMA form eliminates the need for follow-up
communications and reporting during a declaration request.
Description of the Respondents: State, local, or Tribal government.
Number of Respondents: The current OMB-approved number of
respondents is 623 per year. The proposed rulemaking would not impact
the number of respondents.
Number of Responses: FEMA estimates the number of responses would
be 340 per year. This is a decrease of 16 responses from the OMB-
approved number of responses of 356 per year.
Burden of Response: For each response, FEMA estimates it takes 9
hours to complete FEMA Form 010-0-13. In addition, FEMA estimates it
takes 24.126 hours to gather information for the FEMA Form 010-0-13.
The total burden for each response is 33.126 hours
Estimate of Total Annual Burden: The previously approved total
annual burden was 11,792.8 hours. FEMA estimates that the number of
responses would decrease by 16 per year. At 33.126 hours per response,
the reduced burden for submitting the responses would be 530 hours
(rounded). Based on the proposed rule's decrease in burden, the new
estimated total annual burden is 11,262.8 hours.
Collection of Information Number 1660-0017
Title: Public Assistance Program,
OMB Control Number: 1660-0017,
Type of information collection: Revision of a currently approved
collection.
Form Numbers: FEMA Forms 009-0-49, 009-0-91, 009-0-91A, 009-0-91B,
009-0-91C, 009-0-91D, 009-0-111, 009-0-120, 009-0-121, 009-0-123, 009-
0-124, 009-0-125, 009-0-126, 009-0-127, 009-0-128, 055-0-0-1, and 009-
0-141.
Summary of the Collection of Information: The Stafford Act
authorizes grants to assist State, tribal, and local governments and
certain Private Non-Profit entities with the response to and recovery
from disasters following Presidentially declared major disasters and
emergencies.
Need for Information: The information collected is required for the
PA program eligibility determinations, grants management, and
compliance with other Federal laws and regulations. Title 44 CFR part
206 specifies the information collections necessary to facilitate the
provision of assistance under the PA program.
Use of Information: The information collected is utilized by FEMA
to make determinations for PA grants based on the information supplied
by the respondents.
Description of Respondents: State, local, or tribal government.
Number of Respondents: The current OMB-approved number of
respondents is 56 per year for FEMA Forms 009-0-49, 009-0-91, 009-0-
91A, 009-0-91B, 009-0-91C, 009-0-91D, 009-0-111, 009-0-120, 009-0-121,
009-0-123, 009-0-124, 009-0-125, 009-0-126, 009-0-127, 009-0-128, 009-
0-141, State Administrative Plan and State Plan Amendments (no form),
and Request for Appeals and Recommendation (no form); and 4 per year
for Requests for Arbitration and Recommendation resulting from
Hurricanes Katrina or Rita (no form). FEMA estimates the number of
respondents would be 40 per year, a decrease of 16 respondents from the
OMB-approved number of responses of 56 per year, for FEMA Forms 009-0-
49, 009-0-91, 009-0-91A, 009-0-91B, 009-0-91C, 009-0-91D, 009-0-120,
009-0-121, 009-0-123, 009-0-124, 009-0-125, 009-0-126, 009-0-127, 009-
0-128, and 009-0-141. The number of respondents would not change for
FEMA Form 009-0-111, State Administrative Plan and State Plan
Amendments (no form), Request for Appeals and Recommendation (no form),
and Requests for Arbitration and Recommendation resulting from
Hurricanes Katrina or Rita (no form).
Number of Responses: The number of responses per respondent varies
by form (see Table 9). The number of responses per respondent (form)
would not change due to the proposed rule. The decrease in the number
of respondents for certain forms would result in a decrease in the
total annual responses. FEMA estimates the total annual number of
responses would be 284,564 per year. This is a decrease of 113,504
responses from the OMB-approved number of responses of 398,068 per
year.
[[Page 80741]]
Table 9--Estimated Annualized Burden Hours by Form
----------------------------------------------------------------------------------------------------------------
Average hourly
Form name/form No. Respondents Responses per Total annual burden per Total hourly
respondent responses response annual burden
----------------------------------------------------------------------------------------------------------------
FEMA Form 009-0-49, Request for 40 129 5,160 0.25 1,290
Public Assistance..............
FEMA Form 009-0-91, Project 40 840 33,600 1.5 50,400
Worksheet (PW) and a Request
for Time Extension.............
FEMA Form 009-0-91A Project Work 40 784 31,360 1.5 47,040
Sheet (PW) Damage Description
and Scope of Work..............
FEMA Form 009-0-91B, Project 40 784 31,360 1.3333 41,813
Worksheet (PW) Cost Estimate
Continuation Sheet and Request
for additional funding for Cost
Overruns.......................
FEMA Form 009-0-91C Project 40 728 29,120 1.5 43,680
Worksheet (PW) Maps and
Sketches Sheet.................
FEMA Form 009-0-91D Project 40 728 29,120 1.5 43,680
Worksheet (PW) Photo Sheet.....
FEMA Form 009-0-120, Special 40 840 33,600 0.5 16,800
Considerations Questions.......
FEMA Form 009-0-128, Applicant's 40 784 31,360 0.5 15,680
Benefits Calculation Worksheet.
FEMA Form 009-0-121, PNP 40 94 3,760 0.5 1,880
Facility Questionnaire.........
FEMA Form 009-0-123, Force 40 94 3,760 0.5 1,880
Account Labor Summary Record...
FEMA Form 009-0-124, Materials 40 94 3,760 0.25 940
Summary Record.................
FEMA Form 009-0-125, Rented 40 94 3,760 0.5 1,880
Equipment Summary Record.......
FEMA Form 009-0-126, Contract 40 94 3,760 0.5 1,880
Work Summary Record............
FEMA Form 009-0-127, Force 40 94 3,760 0.25 940
Account Equipment Summary
Record.........................
State Administrative Plan and 56 1 56 8 448
State Plan Amendments/No Form..
FEMA Form 009-0-111, Quarterly 56 4 224 100 22,400
Progress Report................
Request for Appeals & 56 9 504 3 1,512
Recommendation/No Forms........
Request for Arbitration & 4 5 20 3 60
Recommendation resulting from
Hurricanes Katrina or Rita/No
Form...........................
FEMA Form 009-0-141, FAC-TRAX 40 913 36,520 1.25 45,650
System.........................
-------------------------------------------------------------------------------
Total....................... .............. .............. 284,564 126.3333 339,853
----------------------------------------------------------------------------------------------------------------
Burden of Response: The burden per response varies by form (see
Table 9). The total burden per response varies by respondent, with a
maximum burden per respondent of 126.3333 hours if a respondent
completes every form and those items without forms. The burden per
response would not change due to this rulemaking.
Estimate of Total Annual Burden: The previously approved total
annual burden was 466,025 hours. FEMA estimates that the number of
respondents would decrease by 16 per year for FEMA Forms 009-0-49, 009-
0-91, 009-0-91A, 009-0-91B, 009-0-91C, 009-0-91D, 009-0-120, 009-0-121,
009-0-123, 009-0-124, 009-0-125, 009-0-126, 009-0-127, 009-0-128, and
009-0-141. Table 9 shows the resultant change in the total annual
burden by form. Based on the proposed rule's decrease in burden, the
new estimated total annual burden is 339,853 hours. This is a reduction
of 126,172 hours per year.
Table 9--Itemized Changes in Annual Burden Hours
----------------------------------------------------------------------------------------------------------------
Program change
(burden Program change
Data collection activity/instrument currently on (new) Difference
OMB Inventory)
----------------------------------------------------------------------------------------------------------------
FEMA Form 009-0-49, Request for Public Assistance............... 1,806 1,290 -516
FEMA Form 009-0-91, Project Worksheet (PW) and a Request for 70,560 50,400 -20,160
Time Extension.................................................
FEMA Form 009-0-91A Project Work Sheet (PW) Damage Description 65,856 47,040 -18,816
and Scope of Work..............................................
FEMA Form 009-0-91B, Project Worksheet (PW) Cost Estimate 58,537 41,813 -16,724
Continuation Sheet and Request for additional funding for Cost
Overruns.......................................................
FEMA Form 009-0-91C Project Worksheet (PW) Maps and Sketches 61,152 43,680 -17,472
Sheet..........................................................
FEMA Form 009-0-91D Project Worksheet (PW) Photo Sheet.......... 61,152 43,680 -17,472
FEMA Form 009-0-120, Special Considerations Questions........... 23,520 16,800 -6,720
FEMA Form 009-0-128, Applicant's Benefits Calculation Worksheet. 21,952 15,680 -6,272
FEMA Form 009-0-121, PNP Facility Questionnaire................. 2,632 1,880 -752
FEMA Form 009-0-123, Force Account Labor Summary Record......... 2,632 1,880 -752
FEMA Form 009-0-124, Materials Summary Record................... 1,316 940 -376.0
FEMA Form 009-0-125, Rented Equipment Summary Record............ 2,632 1,880 -752
[[Page 80742]]
FEMA Form 009-0-126, Contract Work Summary Record............... 2,632 1,880 -752
FEMA Form 009-0-127, Force Account Equipment Summary Record..... 1,316 940 -376
State Administrative Plan and State Plan Amendments/No Form..... 448 448 0
FEMA Form 009-0-111, Quarterly Progress Report.................. 22,400 22,400 0
Request for Appeals & Recommendation/No Forms................... 1,512 1,512 0
Request for Arbitration & Recommendation resulting from 60 60 0
Hurricanes Katrina or Rita/No Form.............................
FEMA Form 009-0-141, FAC-TRAX System............................ 63,910 45,650 -18,260
-----------------------------------------------
Total....................................................... 466,025 339,853 -126,172
----------------------------------------------------------------------------------------------------------------
As required by 44 U.S.C. 3507(d), FEMA will submit a copy of the
proposed rule to OMB for its review of the collection of information.
FEMA asks for public comment on the proposed collection of
information to help determine how useful the information is, whether it
can help FEMA perform its functions better, whether it is readily
available elsewhere, how accurate the estimate of the burden of
collection is, how valid the methods for determining burden are, how
FEMA can improve the quality, usefulness, and clarity of the
information, and how FEMA can minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility, where indicated
under the ADDRESSES section of the proposed rule, by the date given
under the DATES section.
You are not required to respond to a collection of information
unless it displays a currently valid control number from OMB. Before
FEMA could enforce the collection of information requirements in this
proposed rule, OMB would need to approve FEMA's request to collect this
information.
F. Privacy Act/E-Government Act
Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must
determine whether implementation of a proposed regulation will result
in a system of records. A ``record'' is any item, collection, or
grouping of information about an individual that is maintained by an
agency, including, but not limited to, his/her education, financial
transactions, medical history, and criminal or employment history and
that contains his/her name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a finger or
voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ``system of
records'' is a group of records under the control of an agency from
which information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to
the individual. An agency cannot disclose any record which is contained
in a system of records except by following specific procedures.
The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires
specific procedures when an agency takes action to develop or procure
information technology that collects, maintains, or disseminates
information that is in an identifiable form. This Act also applies when
an agency initiates a new collection of information that will be
collected, maintained, or disseminated using information technology if
it includes any information in an identifiable form permitting the
physical or online contacting of a specific individual.
A Privacy Threshold Analysis for this proposed rule was approved on
May 23, 2019. Any information will be collected in existing FEMA Form
010-0-13, 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 non-personally[hyphen]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[hyphen]identifiable nature. This form and
its contents are covered by a System of Records Notice, DHS/FEMA/PIA-
013 Grant Management Programs and notice is provided by the DHS/FEMA-
009 Hazard Mitigation Disaster Public Assistance and Disaster Loan
Programs SORN. This rulemaking does not impact FEMA's collection of PII
in the disaster declarations process and form and no Privacy Impact
Assessment or 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. Under this Executive order, to the extent
practicable and permitted by law, no agency shall promulgate any
regulation that has Tribal implications, that imposes substantial
direct compliance costs on Indian Tribal governments, and that is not
required by statute, unless funds necessary to pay the direct costs
incurred by the Indian Tribal government or the Tribe in complying with
the regulation are provided by the Federal Government, or the agency
consults with Tribal officials.
FEMA has reviewed this proposed rule under Executive Order 13175
and believes that this proposed rule would not have a substantial
direct effect on one or more Indian tribes, on the relationship between
the Federal Government and Indian Tribes, or on the distribution of
power and responsibilities between the Federal Government and Indian
Tribes. The Sandy Recovery Improvement Act of 2013 requires the
President when issuing regulations to ``consider the unique conditions
that affect the general welfare of Indian tribal governments.'' To this
end, FEMA, in coordination
[[Page 80743]]
with DHS, OMB and several tribes and tribal organizations, decided to
develop the Tribal Declarations Pilot Guidance. The guidance underwent
extensive and exhaustive tribal consultation for over 3 years, which
included over 150 listening sessions across the country and the
adjudication of over 2,000 comments. Under the Tribal Declarations
Pilot Guidance, FEMA established separate factors for evaluating tribal
governments' requests. These factors include (but are not limited to) a
lower minimum damage amount for Public Assistance ($250,000) and the
elimination of a per capita damage amount. These factors reflect the
Agency's acknowledgement that tribal nations have different needs and
capabilities than states. The factors listed in the Tribal Declarations
Pilot Guidance will not be altered by this proposed rule, as the
proposed rule only applies to States and Territories. Additionally, as
noted in the RIA, Tribal applicants and subapplicants would have
received $10.74 million less in PA funding between 2008 and 2017 had
the proposed rule been in effect. However, $9 million of that funding
would have been potentially available for some of those Tribal
governments had they requested a major disaster declaration under the
Tribal Declarations Pilot Guidance because those Tribal governments
received more than $250,000 in PA assistance. Therefore, it is possible
more Tribal governments may request disaster declarations through the
Tribal Declarations Pilot Guidance as a result of the proposed rule.
However, as discussed in the RIA, there are many other factors that
affect whether a Tribal government requests a declaration through the
Tribal Declarations Pilot Guidance.
The remaining $1.74 million of PA funding that Tribal governments
would likely not have received resulted in an average of $36,192 per
project for each of the 44 Tribal governments across the 29 disasters
analyzed. While FEMA appreciates that some Tribal governments have
limited financial capabilities, FEMA believes most Tribal governments
could handle such costs in responding to an event on their own.
Accordingly, FEMA does not believe that consultation under Executive
Order 13175 is necessary; however, FEMA welcomes comments on the
potential impacts of the proposed rule on Tribal governments.
Additionally, in accordance with the requirement in section 1239 of the
DRRA that FEMA meaningfully consult with State, local and Tribal
governments, FEMA will conduct additional outreach with Tribal
government stakeholders as well as representatives of State, regional
and local governments.
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.
FEMA has reviewed this proposed rule under Executive Order 13132
believes that this proposed rule would not have substantial direct
effects on the States, on the relationship between the National
Government and the States, on the distribution of power and
responsibilities among the various levels of government, or on the
policymaking discretion of the States, and therefore does not have
federalism implications as defined by the Executive order. The proposed
rule substantively affects one of several factors that FEMA considers
when determining whether to recommend that the President declare that a
major disaster has occurred on the basis of a governor's request that
such a declaration be made. Importantly, FEMA considers all of the
factors in making a decision on a recommendation, as each disaster
request involves circumstances unique to that disaster event, the
State, and affected communities. Moreover, FEMA's recommendation to the
President does not obligate the President to agree with FEMA's
recommendation. Rather, the President may declare or not declare a
disaster on their own accord. Furthermore, the proposed rule does not
affect a State's ability or choice to request such a declaration, since
disaster declaration requests are voluntary, and States choose whether
or not to request Federal assistance. While FEMA hopes that the
proposed rule will encourage States to invest more in mitigating future
disasters and their consequences, such funding decisions are ultimately
left to the States' discretion. Accordingly, the proposed rule does not
have federalism implications as defined by the Executive order.
However, FEMA welcomes comments on the proposed rule's potential
impacts on States and territories, and their relationships with the
Federal Government. Additionally, in accordance with the requirement in
section 1239 of the DRRA that FEMA meaningfully consult with State,
local and Tribal governments, FEMA will conduct additional outreach
with representatives of State, regional and local governments.
I. Executive Order 11988, Floodplain Management, as amended
Pursuant to Executive Order 11988, each agency is required to
provide leadership and take action to reduce the risk of flood loss, to
minimize the impact of floods on human safety, health and welfare, and
to 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; to ensure that its
planning programs and budget requests reflect consideration of flood
hazards and floodplain management; and to 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
[[Page 80744]]
relating to, among other things, construction and property improvement
activities, as well as conducting Federal programs affecting a
floodplain(s). The changes proposed in this rule would not have an
effect on floodplain management. This proposed rule revises the
criteria that FEMA considers when recommending a State eligible for PA
under a major disaster declaration. A major disaster declaration
recommendation to the President is an administrative action for FEMA's
PA program. When FEMA undertakes specific actions in administering PA
that may have effects on floodplain management, FEMA follows the
procedures set forth in 44 CFR part 9 to assure compliance with this
Executive order. This serves as the notice that is required by the
E.O..
J. Executive Order 11990, Protection of Wetlands
Pursuant to Executive Order 11990, 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 the Executive order,
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 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 proposed in
this rule would not have an effect on land use or wetlands. This
proposed rule revises the criteria that FEMA considers when
recommending a State eligible for PA under a major disaster
declaration. A major disaster declaration recommendation to the
President is an administrative action for FEMA's PA program. When FEMA
undertakes specific actions in administering PA that may have such
effects, FEMA follows the procedures set forth in 44 CFR part 9 to
assure compliance with this Executive order.
K. Executive Order 12898, Environmental Justice
Pursuant to 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.
This rulemaking will not have a disproportionately high or adverse
effect on minority or low-income populations. The proposed rule
substantively affects one of several factors that FEMA considers when
determining whether to recommend that the President declare that a
major disaster has occurred on the basis of a governor's request that
such a declaration be made for PA. FEMA's PA program provides
assistance to States, local governments, and private non-profits in
repairing, restoring, and replacing facilities damaged by disasters,
such as buildings, roads, bridges, and other infrastructure. FEMA's
review of a governor's request for a major disaster declaration for PA
only considers the relevant factors as they pertain to a disaster's
impacts on those public or eligible private non-profit facilities
covered by the PA program. Accordingly, 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.
L. Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities,'' OMB
Circular A-119
``Voluntary consensus standards'' are standards developed or
adopted by voluntary consensus standards bodies, both domestic and
international. These standards include provisions requiring that owners
of relevant intellectual property have agreed to make that intellectual
property available on a non-discriminatory, royalty-free or reasonable
royalty basis to all interested parties. OMB Circular A-119 directs
agencies to use voluntary consensus standards in their regulatory
actions in lieu of government-unique standards except where
inconsistent with law or otherwise impractical. The policies in the
Circular are intended to reduce to a minimum the reliance by agencies
on government-unique standards.
The proposed rule does not contain a ``standard'' as defined by OMB
Circular A-119. This proposed rule revises the criteria that FEMA
considers when recommending a State eligible for PA under a major
disaster declaration. A major disaster declaration recommendation to
the President is an administrative action for FEMA's PA program.
Accordingly, an analysis under OMB Circular A-119 is not required.
M. Congressional Review of Agency Rulemaking
Under the Congressional Review of Agency Rulemaking Act (CRA), 5
U.S.C. 801-808, before a rule can take effect, the Federal agency
promulgating the rule must submit to Congress and to the Government
Accountability Office (GAO) a copy of the rule, a concise general
statement relating to the rule, including whether it is a major rule,
the proposed effective date of the rule, a copy of any cost-benefit
analysis; descriptions of the agency's actions under the Regulatory
Flexibility Act and the Unfunded Mandates Reform Act, and any other
information or statements required by relevant Executive orders.
FEMA will send this rule to the Congress and to GAO pursuant to the
CRA if the rule is finalized. The rule, as proposed, is a ``major
rule'' within the meaning of the CRA. It will have an
[[Page 80745]]
annual effect on the economy of $100,000,000 or more, and may result in
a major increase in costs or prices for Federal, State, or local
government agencies. It will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States- based enterprises to compete with
foreign-based enterprises in domestic and export markets.
List of Subjects 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, Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, the Federal Emergency
Management Agency proposes to amend 44 CFR part 206, subpart B, as
follows:
PART 206--FEDERAL DISASTER ASSISTANCE
0
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.
0
2. Revise Sec. 206.48 introductory text and paragraph (a) to read as
follows:
Sec. 206.48 Factors considered when evaluating a Governor's request
for a major disaster declaration.
When FEMA reviews a Governor's request for major disaster
assistance under the Stafford Act, these are the primary factors in
making a recommendation to the President whether assistance is
warranted. FEMA considers other relevant information as well.
(a) Public Assistance Program. FEMA evaluates the following factors
to evaluate the need for assistance under the Public Assistance
Program.
(1) Estimated cost of the assistance. FEMA evaluates the estimated
cost of Federal and non-Federal public assistance against the statewide
population to give some measure of the per capita impact within the
State. FEMA uses a figure of $2.32 per capita as an indicator that the
disaster is of such size that it might warrant Federal assistance, and
will adjust this figure annually based on the Consumer Price Index for
all Urban Consumers. With the exception of the District of Columbia,
the Commonwealth of Puerto Rico, U.S. Virgin Islands, the Commonwealth
of the Northern Mariana Islands, American Samoa, and Guam, FEMA further
adjusts each State's per capita indicator according to each State's
Total Taxable Resources (TTR) as reported by the U.S. Department of
Treasury. FEMA is establishing a minimum threshold of $1.535 million in
public assistance damages per disaster in the belief that FEMA can
reasonably expect even the lowest population States to cover this level
of public assistance damage. FEMA will adjust this minimum threshold
annually based on the Consumer Price Index for all Urban Consumers.
FEMA will publish the adjusted figures annually in the Federal
Register.
(2) Localized impacts. FEMA evaluates the impact of the disaster at
the county and local government level, as well as impacts at the
American Indian and Alaskan Native Tribal Government levels, because at
times there are extraordinary concentrations of damages that might
warrant Federal assistance even if the statewide per capita is not met.
This is particularly true where critical facilities are involved or
where localized per capita impacts might be extremely high. For
example, FEMA has at times seen localized damages in the tens or even
hundreds of dollars per capita though the statewide per capita impact
was low.
(3) Insurance coverage in force. FEMA considers the amount of
insurance coverage that is in force or should have been in force as
required by law and regulation at the time of the disaster, and reduces
the amount of anticipated assistance by that amount.
(4) Hazard mitigation. To recognize and encourage mitigation, FEMA
considers the extent to which State and local government measures
contributed to the reduction of disaster damages for the disaster under
consideration. For example, if a State can demonstrate in its disaster
request that a Statewide building code or other mitigation measures are
likely to have reduced the damages from a particular disaster, FEMA
considers that in the evaluation of the request. This could be
especially significant in those disasters where, because of mitigation,
the estimated public assistance damages fell below the per capita
indicator.
(5) Recent multiple disasters. FEMA looks at the disaster history
within the last 12-month period to better evaluate the overall impact
on the State or locality. FEMA considers declarations under the
Stafford Act as well as declarations by the Governor and the extent to
which the State has spent its own funds.
(6) Programs of other Federal assistance. FEMA also considers
programs of other Federal agencies because at times their programs of
assistance might more appropriately meet the needs created by the
disaster.
* * * * *
Pete Gaynor,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2020-27094 Filed 12-11-20; 8:45 am]
BILLING CODE 9111-23-P
