[Federal Register Volume 64, Number 169 (Wednesday, September 1, 1999)]
[Rules and Regulations]
[Pages 47697-47699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22510]
[[Page 47697]]
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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) patricia.stahlschmidt@fema.gov.
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]
BILLING CODE 6718-02-P
