Disaster Assistance; Factors Considered When Evaluating a Governor's Request for a Major Disaster Declaration

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 206

RIN 3067-AC94

Disaster Assistance; Factors Considered When Evaluating a

Governor's Request for a Major Disaster Declaration

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Final rule.

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SUMMARY: The Robert T. Stafford Disaster Relief and Emergency

Assistance Act (the Stafford Act) grants the President the authority

for declarations of major disasters and emergencies. We, FEMA, provide

a recommendation to the President whether Federal disaster assistance

is warranted. This rule establishes the factors that we take into

consideration when evaluating a Governor's request for a major disaster

declaration under the Stafford Act. This rule does not affect

presidential discretion, nor does it change published regulations and

policies established under the Stafford Act.

EFFECTIVE DATE: This rule is effective October 1, 1999.

FOR FURTHER INFORMATION CONTACT: Patricia Stahlschmidt, Response and

Recovery Directorate, Federal Emergency Management Agency, 500 C Street

SW., Washington, DC 20472, 202-646-4066, (facsimile) 202-646-4060, or

(email) [email protected].

SUPPLEMENTARY INFORMATION: On January 26, 1999, we published a proposed

rule on factors considered when evaluating a Governor's request for a

major disaster declaration under the Stafford Act, 42 U.S.C. 5121 et

seq. in the Federal Register at 64 FR 3910. We invited comments for 90

days ending on April 26, 1999. We received nineteen sets of comments:

seven from States; eight from various organizations; and, four from

individuals. Comments varied widely. Some commentors objected to

putting any factors in regulation; some thought that certain evaluation

factors were too rigorous and restrictive; some thought them too vague

and weak or subject to political influence; and, some supported the

rule as written. All comments were appreciated and reviewed carefully.

Following is a summary of the comments and our responses.

One State and one nongovernmental organization supported the

proposed rule. All other States and most non-governmental organizations

opposed the establishment of any ``declaration criteria'' in regulation

on the grounds that it limits presidential discretion. Several

commented that they prefer the current declaration process because it

provides the appropriate level of executive discretion and flexibility

for the President and for Governors. We do not agree with the

perception that the rule limits presidential discretion. First, the

rule clearly states that it would not affect presidential discretion.

In fact, the rule specifically states that these evaluation factors are

used to make a recommendation to the President in recognition of the

fact that it is the President, not FEMA, who determines whether a major

disaster declaration is warranted. Secondly, the rule generally mirrors

the process that we currently use in evaluating a Governor's request.

It does not change regulations and policies established under the

Stafford Act.

Several commentors approved the concept of publishing the

evaluation factors but criticized them for being too vague and

subjective. Conversely, some criticized the evaluation factors for

being too stringent and inflexible. A number of commentors criticized

specific evaluation factors. Saying, for example, that they do not

adequately measure State capability or commitment to hazard mitigation.

However, commentors as a whole offered no specific or consistently

agreed-upon alternatives to the evaluation factors that we proposed.

With respect to the lack of specificity in some of the evaluation

factors, we are purposely general because we look at the collective

impact of all of the factors when making a recommendation to the

President. Our goal is to provide consistency in the evaluation process

and in the types of factors that we consider, while at the same time

allowing us to consider the total impact and unique circumstances of a

disaster within a particular State. If further specificity or

elaboration is needed on individual factors, such as how we might

measure the impact of hazard mitigation on the disaster, or how we

would measure the impact of recent disasters, we believe that such

detail would be more appropriate in policy than in regulation.

The factor that received the greatest number of comments is the use

of $1.00 per capita as an indicator for Public Assistance; the use of a

minimum $1 million dollar threshold for this indicator; and, the intent

to begin adjusting this indicator annually for inflation using the

Consumer Price Index. Some felt that this indicator does not really

provide the best measurement of the size disaster that a State should

be expected to manage without Federal assistance. Several commentors

objected to this factor because they did not feel that it adequately

addressed localized impacts or unique circumstances of a disaster. We

recognize that a straight per capita figure may not be the best

measurement of a State's capability, but it does provide a simple,

clear, consistent and long-standing means of evaluating the size of a

disaster relative to the size of the State. We also believe that it is

time to begin to peg this indicator to inflation since it has been in

use without change for the past fifteen years. One commentor felt that

we should adjust the $1 per capita figure now from 1985 to 1999

dollars, but we chose to begin adjusting from this rule forward.

Several commentors noted that the addition of a $1 million minimum

indicator for States that are under one million in population is a

change to current practice. No States or territories affected by this

provision commented on it. We continue to maintain that even the lowest

population States can reasonably be expected to cover this level of

public assistance damage and have made no change in the rule.

Several commentors objected to using $1 per capita as a statewide

indicator rather than a localized indicator. This statewide indicator

is not the sole factor that we use in recommending a major disaster. In

fact, one of the evaluation factors specifically addresses impacts at

the local level as well as specific types of impacts, such as damage to

critical facilities. The proposed rule labels this factor ``Impacts at

the County Level.'' We have renamed this to be ``Localized Impacts'' to

make it clear that we look at the impacts for other units of

government, not just the county. The history of major disaster

declarations clearly demonstrates that the statewide $1 per capita

indicator is not the sole determinant in recommending or granting

declarations. Rather, we look at all of them in concert to determine

whether a declaration should be recommended. For this reason we do not

believe that use of this factor is in conflict with Sec. 320 of the

Stafford Act regarding arithmetic formulas or sliding scales.

One Tribal organization commented that the rule does not address

how Tribal governments fit within the declaration process. By law, only

the Governor can request a major disaster declaration under the

Stafford Act. We then evaluate the impacts at the State and local

level. While the proposed rule did not mention Tribal governments

specifically, we do, and will continue to, evaluate impacts at the

Tribal level

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just as we would evaluate localized impacts at the county or other

government level. We revised the rule to add a reference to Tribal

governments under both the Public Assistance and Individual Assistance

evaluation factors so that this is clear.

A number of commentors felt that the evaluation factors should be

more rigorous so that we can ensure that Federal disaster assistance is

truly supplemental in nature to State and local assistance. Along those

lines, several noted that the evaluation factors should consider and/or

encourage State ``Trust Funds'' for disaster assistance. While we do

not specifically mention trust funds we do encourage States to develop

their own programs of disaster assistance. If a State were inclined to

develop its own programs, the statewide $1 per capita indicator under

the Public Assistance Program and the average amounts of assistance

shown under the Individual Assistance Program could serve as targets

for sizing State programs of assistance.

National Environmental Policy Act

This rule is categorically excluded from the requirements of 44 CFR

part 10, Environmental Considerations. We have not prepared an

environmental assessment.

Executive Order 12866, Regulatory Planning and Review

This rule is not a significant regulatory action within the meaning

of Sec. 2(f) of E.O. 12866 of September 30, 1993, 58 FR 51735, but

attempts to adhere to the regulatory principles set forth in E.O.

12866. The rule has not been reviewed by the Office of Management and

Budget under E.O. 12866.

Paperwork Reduction Act

This rule does not contain a collection of information and

therefore is not subject to the provisions of the Paperwork Reduction

Act of 1995.

Executive Order 12612, Federalism

This rule involves no policies that have federalism implications

under E.O. 12612, Federalism, dated October 16, 1987.

Executive Order 12778, Civil Justice Reform

This rule meets the applicable standards of section 2(b)(2) of E.O.

12778.

Congressional Review of Agency Rulemaking

We have submitted this final rule to the Congress and to the

General Accounting Office under the Congressional Review of Agency

Rulemaking Act, Pub. L. 104-121. The rule is not a ``major rule''

within the meaning of that Act. It is an administrative action in

support of normal day-to-day activities. It does not result in nor is

it likely to result in an annual effect on the economy of $100,000,000

or more; it will not result in a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions; and it will not have ``significant

adverse effects'' on competition, employment, investment, productivity,

innovation, or on the ability of United States-based enterprises to

compete with foreign-based enterprises.

This final rule is exempt (1) from the requirements of the

Regulatory Flexibility Act, and (2) from the Paperwork Reduction Act.

The rule is not an unfunded Federal mandate within the meaning of the

Unfunded Mandates Reform Act of 1995, Pub. L. 104-4. It does not meet

the $100,000,000 threshold of that Act, and any enforceable duties are

imposed as a condition of Federal assistance or a duty arising from

participation in a voluntary Federal program.

List of Subjects in 44 CFR Part 206

Administrative practice and procedure, Disaster assistance,

Intergovernmental relations, Reporting and recordkeeping requirements.

Accordingly, we amend 44 CFR part 206 as follows:

PART 206--[AMENDED]

1. The authority citation for part 206 continues to read as

follows:

Authority: The Robert T. Stafford Disaster Relief and Emergency

Assistance Act, 42 U.S.C. 5121 et seq.; Reorganization Plan No. 3 of

1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR

19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR,

1979 Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp.,

p. 214.

2. We are adding Sec. 206.48 to read as follows.

Sec. 206.48 Factors considered when evaluating a Governor's request

for a major disaster declaration.

When we review 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. We

consider other relevant information as well.

(a) Public Assistance Program. We evaluate the following factors to

evaluate the need for assistance under the Public Assistance Program.

(1) Estimated cost of the assistance. We evaluate the estimated

cost of Federal and nonfederal public assistance against the statewide

population to give some measure of the per capita impact within the

State. We use a figure of $1 per capita as an indicator that the

disaster is of such size that it might warrant Federal assistance, and

adjust this figure annually based on the Consumer Price Index for all

Urban Consumers. We are establishing a minimum threshold of $1 million

in public assistance damages per disaster in the belief that we can

reasonably expect even the lowest population States to cover this level

of public assistance damage.

(2) Localized impacts. We evaluate 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, we have 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. We consider 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 reduce

the amount of anticipated assistance by that amount.

(4) Hazard mitigation. To recognize and encourage mitigation, we

consider 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, we

consider 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. We look at the disaster history

within the last twelve-month period to evaluate better the overall

impact on the State or locality. We consider declarations under the

Stafford Act as well as declarations by the Governor and the extent to

which the State has spent its own funds.

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(6) Programs of other Federal assistance. We also consider programs

of other Federal agencies because at times their programs of assistance

might more appropriately meet the needs created by the disaster.

(b) Factors for the Individual Assistance Program. We consider the

following factors to measure the severity, magnitude and impact of the

disaster and to evaluate the need for assistance to individuals under

the Stafford Act.

(1) Concentration of damages. We evaluate the concentrations of

damages to individuals. High concentrations of damages generally

indicate a greater need for Federal assistance than widespread and

scattered damages throughout a State.

(2) Trauma. We consider the degree of trauma to a State and to

communities. Some of the conditions that might cause trauma are:

(i) Large numbers of injuries and deaths;

(ii) Large scale disruption of normal community functions and

services; and

(iii) Emergency needs such as extended or widespread loss of power

or water.

(3) Special populations. We consider whether special populations,

such as low-income, the elderly, or the unemployed are affected, and

whether they may have a greater need for assistance. We also consider

the effect on American Indian and Alaskan Native Tribal populations in

the event that there are any unique needs for people in these

governmental entities.

(4) Voluntary agency assistance. We consider the extent to which

voluntary agencies and State or local programs can meet the needs of

the disaster victims.

(5) Insurance. We consider the amount of insurance coverage

because, by law, Federal disaster assistance cannot duplicate insurance

coverage.

(6) Average amount of individual assistance by State. There is no

set threshold for recommending Individual Assistance, but the following

averages may prove useful to States and voluntary agencies as they

develop plans and programs to meet the needs of disaster victims.

Average Amount of Assistance per Disaster

[July 1994 to July 1999]

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Small states (under 2 Medium states (2-10 Large states (over 10

million pop.) million pop.) million pop.)

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Average Population (1990 census 1,000,057............... 4,713,548.............. 15,522,791

data).

Number of Disaster Housing 1,507................... 2,747.................. 4,679

Applications Approved.

Number of Homes Estimated Major 173..................... 582.................... 801

Damage/Destroyed.

Dollar Amount of Housing Assistance. $2.8 million $4.6 million $9.5 million

Number of Individual and Family 495..................... 1,377.................. 2,071

Grant Applications Approved.

Dollar Amount of Individual and 1.1 million............. 2.9 million............ 4.6 million

Family Grant Assistance.

Disaster Housing/IFG Combined 3.9 million............. 7.5 million............ 14.1 million

Assistance.

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Note: The high 3 and low 3 disasters, based on Disaster Housing

Applications, are not considered in the averages. Number of Damaged/

Destroyed Homes is estimated based on the number of owner-occupants

who qualify for Eligible Emergency Rental Resources. Data source is

FEMA's National Processing Service Centers. Data are only available

from July 1994 to the present.

Small Size States (under 2 million population, listed in order

of 1990 population): Wyoming, Alaska, Vermont, District of Columbia,

North Dakota, Delaware, South Dakota, Montana, Rhode Island, Idaho,

Hawaii, New Hampshire, Nevada, Maine, New Mexico, Nebraska, Utah,

West Virginia. U.S. Virgin Islands and all Pacific Island

dependencies.

Medium Size States (2-10 million population, listed in order of

1990 population): Arkansas, Kansas, Mississippi, Iowa, Oregon,

Oklahoma, Connecticut, Colorado, South Carolina, Arizona, Kentucky,

Alabama, Louisiana, Minnesota, Maryland, Washington, Tennessee,

Wisconsin, Missouri, Indiana, Massachusetts, Virginia, Georgia,

North Carolina, New Jersey, Michigan. Puerto Rico.

Large Size States (over 10 million population, listed in order

of 1990 population): Ohio, Illinois, Pennsylvania, Florida, Texas,

New York, California.

Dated: August 24, 1999.

James L. Witt,

Director.

[FR Doc. 99-22510 Filed 8-31-99; 8:45 am]

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