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

Federal Register, Volume 80 Issue 218 (Thursday, November 12, 2015)

Federal Register Volume 80, Number 218 (Thursday, November 12, 2015)

Proposed Rules

Pages 70115-70143

From the Federal Register Online via the Government Publishing Office www.gpo.gov

FR Doc No: 2015-28570

Page 70115

Vol. 80

Thursday,

No. 218

November 12, 2015

Part III

Department of Homeland Security

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Federal Emergency Management Agency

44 CFR Part 206

Factors Considered When Evaluating a Governor's Request for Individual Assistance for a Major Disaster; Proposed Rule

Page 70116

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 206

Docket ID FEMA-2014-0005

RIN 1660-AA83

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

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: FEMA proposes to revise its regulations to comply with Section 1109 of the Sandy Recovery Improvement Act of 2013 which requires FEMA, in cooperation with State, local, and Tribal emergency management agencies, to review, update, and revise through rulemaking the Individual Assistance factors FEMA uses to measure the severity, magnitude, and impact of a disaster.

DATES: Comments must be received on or before January 11, 2016.

ADDRESSES: You may submit comments, identified by docket ID FEMA-2014-

0005, by one of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of Chief Counsel, 500 C Street SW., 8NE, Washington, DC 20472-3100.

Instructions: All submissions received must include the agency name and docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal e-Rulemaking Portal at http://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 Act notice that is available via the Privacy Notice link on the homepage of http://www.regulations.gov.

Docket: For access to the docket to read background documents or comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov, click on ``Advanced Search,'' then enter ``FEMA-

2014-0005'' in the ``By Docket ID'' box, then select ``FEMA'' under ``By Agency,'' and then click ``Search.'' Submitted comments may also be inspected at the Office of Chief Counsel, Federal Emergency Management Agency, 500 C Street SW., 8NE, Washington, DC 20472-3100.

FOR FURTHER INFORMATION CONTACT: Mark Millican, FEMA, Individual Assistance Division, 500 C Street SW., Washington, DC 20472-3100, (phone) 202-212-3221 or (email) FEMA-IA-Regulations@fema.dhs.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

1. Purpose of the Regulatory Action

   1. The Need for the Regulatory Action and How the Action Will Meet the Need

   2. Legal Authority

2. Summary of Major Provisions

   III. Background

1. The Federal Disaster Declaration Process

   1. Preliminary Damage Assessment (PDA)

   2. State's Submission of Its Declaration Request to FEMA

   3. FEMA's Analysis and Recommendation to the President

   4. Approval or Denial of the Declaration Request

   5. Types of Assistance Approved Under the Declaration Request

2. Sandy Recovery Improvement Act of 2013

3. FEMA's Outreach Efforts Required by the Sandy Recovery Improvement Act

   1. The Role of Voluntary, Faith, and Community Based Organizations During Disasters

   2. The Correlation Between the Population Size of a State and Its Capability To Recover

   3. Issues With Widespread Damage and Contiguous States

   4. Impact on Businesses

   5. Decoupling Individual Assistance Programs

   6. Impacts to Community

   7. Linking Individual Assistance Declarations With Public Assistance Estimated Cost Factor

   8. Thresholds

   9. Insurance

   10. Homes in Foreclosure

   11. Incentives for State Sponsored IA Programs

   IV. Discussion of the Proposed Rule

1. 44 CFR 206.48--Paragraph (b)(1) State Fiscal Capacity and Resource Availability

2. 44 CFR 206.48--Paragraph (b)(2) Uninsured Home and Personal Property Losses

3. 44 CFR 206.48--Paragraph (b)(3) Disaster Impacted Population Profile

4. 44 CFR 206.48--Paragraph (b)(4) Impact to Community Infrastructure

5. 44 CFR 206.48--Paragraph (b)(5) Casualties

6. 44 CFR 206.48--Paragraph (b)(6) Disaster Related Unemployment

7. Principal Factors for Evaluating the Need for the Individuals and Households Program

   V. Regulatory Analysis

1. Executive Order 12866, Regulatory Planning and Review and Executive Order 13563, Improving Regulation and Regulatory Review

   1. Executive Summary & A-4 Accounting Statement

   2. Need for Regulatory Action

   3. Affected Population

   4. Current Baseline and Changes From Proposed Rule

   5. Impacts to Costs, Benefits, and Transfer Payments

      1. State Costs

      2. Federal Costs

      3. Benefits

      4. Transfer Payments

   9. Cumulative Impact of the Proposed Rule

   10. Marginal Analysis of the Proposed Factors

   11. Regulatory Alternatives

       1. Voluntary, Faith and Community Based Organizations Resources

       2. Maintain the 44 CFR 206.48(b)(6) Table

       3. Automatically Trigger Contiguous Counties and States

       4. Considering Negative Impact on Businesses

       5. Linking Individual Assistance Cost Factor With Public Assistance Cost Factor

       6. Use of Factor Thresholds

       7. Homes in Foreclosure

       8. Do Not Include Fiscal Capacity Indicators

       9. Do Not Include State Resources Indicators

2. Regulatory Flexibility Act

3. Unfunded Mandates Reform Act of 1995

4. National Environmental Policy Act

5. Paperwork Reduction Act of 1995

6. Privacy Act

7. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

8. Executive Order 13132, Federalism

   I. Executive Order 11988, Floodplain Management

10. Executive Order 11990, Protection of Wetlands

11. Executive Order 12898, Environmental Justice

    L. Congressional Review of Agency Rulemaking

    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 http://www.regulations.gov,

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    and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to read the Privacy Act notice that is available via a link on the homepage of www.regulations.gov.

    Viewing comments and documents: For access to the docket to read background documents or comments received, go to the Federal e-

    Rulemaking Portal at http://www.regulations.gov. Background documents and submitted comments may also be inspected at the Office of Chief Counsel, Federal Emergency Management Agency, 500 C Street SW., 8NE, Washington, DC 20472-3100.

    II. Executive Summary

1. Purpose of the Regulatory Action

   1. The Need for the Regulatory Action and How the Action Will Meet the Need

      On January 29, 2013, the President signed the Sandy Recovery Improvement Act of 2013 (SRIA) into law (Pub. L. 113-2). Section 1109 of SRIA requires FEMA in cooperation with State, local, and Tribal emergency management agencies, to review, update, and revise through rulemaking the factors found at 44 CFR 206.48 that FEMA uses to determine whether to recommend provision of Individual Assistance (IA) during a major disaster. These factors help FEMA measure the severity, magnitude, and impact of a disaster.

      FEMA is proposing this rule to comply with SRIA and to provide clarity on the IA declaration factors that FEMA currently considers in support of its recommendation to the President on whether a major disaster declaration authorizing IA is warranted. The additional clarity may reduce delays in the declaration process by decreasing the back and forth between States and FEMA in the declaration process. FEMA is also proposing new factors on Fiscal Capacity and Resource Availability to provide additional context on potential disaster situations. The proposed rule would also satisfy the requirements outlined above in Section 1109 of SRIA.

   2. Legal Authority

      FEMA has authority for this proposed rule pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). 42 U.S.C. 5121 et seq. Section 401 of the Stafford Act lays out the procedures for a declaration for FEMA's major disaster assistance programs when a catastrophe occurs in a State. The specific changes proposed by this NPRM are intended to comply with Section 1109 of the Sandy Recovery Improvement Act of 2013. Public Law 113-2.

2. Summary of Major Provisions

   FEMA proposed to revise the factors found at 44 CFR 206.48 that FEMA uses to determine whether to recommend provision of Individual Assistance during a major disaster. The current factors found at 44 CFR 206.48 for Individual Assistance include the following factors: (1) Concentration of Damages, (2) Trauma, (3) Special Populations, (4) Voluntary Agency Assistance, (5) Insurance, and (6) Average Amount of Individual Assistance by State.

   FEMA is proposing to revise the current factors by providing additional clarity regarding the considerations FEMA evaluates when making a recommendation on whether Individual Assistance is warranted for a major disaster declaration. FEMA is proposing to revise 44 CFR 206.48 to include the following factors: (1) State Fiscal Capacity and Resource Availability, (2) Uninsured Home and Personal Property Losses, (3) Disaster Impacted Population Profile, (4) Impact to Community Infrastructure, (5) Casualties, and (6) Disaster Related Unemployment. As is currently the practice, FEMA will continue to use a myriad of factors and data to formulate its recommendations to the President on major disaster declarations that authorize IA. No single data point or factor would determine on its own FEMA's ultimate recommendation nor would any single factor necessarily affect the President's ultimate determination of whether a major disaster declaration authorizing IA is warranted. FEMA purposely declined to be more specific in areas of the proposed rule so that FEMA does not limit Presidential discretion for declaring a major disaster declaration that authorized Individual Assistance because the parameters for a major disaster declaration can change from Administration to Administration. FEMA wants to ensure that we retain as much flexibility as possible so that we can conform to what the President wants in their disaster declaration recommendations. The proposed factors would not limit the President's discretion regarding major disaster declarations.

   III. Background

1. The Federal Disaster Declaration Process

   When a catastrophe occurs in a State, the State's Governor may request a Presidential declaration of a major disaster \1\ pursuant to Section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). 42 U.S.C. 5170; 44 CFR 206.36(a). Such a request must be based on a finding that the disaster is of such severity and magnitude that an effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. 42 U.S.C. 5170.

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   \1\ A major disaster is any natural catastrophe (including any hurricane, tornado, storm, high water, wind driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this Act to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby. 42 U.S.C. 5122; 44 CFR 206.2(17).

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   The capacity to respond to a catastrophe varies from State to State. The initial decision on whether supplemental Federal assistance is necessary for a State responding to and recovering from a natural disaster lies with each State. The basis for any State request for a major disaster declaration must be a finding that (1) the situation is of such severity and magnitude that an effective response is beyond the capacities of the State and affected local governments, and (2) Federal assistance under the Stafford Act is necessary to supplement the efforts and available resources of the State, local governments, disaster relief organizations, and compensations by insurance for disaster-related losses. 44 CFR 206.36(b)(1)-(2).

   The President's declaration may authorize various types of Federal assistance, falling under three main program areas: Public Assistance, Individual Assistance (IA), and Hazard Mitigation. Public Assistance provides supplemental Federal disaster grant assistance for debris removal, emergency protective measures, and the repair, replacement, or restoration of disaster-damaged, publicly owned facilities and the facilities of certain Private Non-Profit organizations. Individual Assistance provides financial or direct assistance to individuals and households who have been injured or whose property has been damaged or destroyed as a result of a Federally-declared disaster, and whose losses are not covered by insurance or other means. Additionally, a declaration authorizing Individual Assistance may authorize crisis counseling, disaster case management, disaster unemployment assistance, and disaster legal services.

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   The Hazard Mitigation Grant Program provides grants to States and local governments to implement long term hazard mitigation measures after a major disaster declaration. FEMA's regulations at 44 CFR part 206 Subpart B describe the process leading to a Presidential declaration of a major disaster and the actions triggered by such a declaration. 44 CFR 206.31.

   1. Preliminary Damage Assessment (PDA)

      An initial step in the major disaster declaration process is the preliminary damage assessment (PDA). The PDA is used to determine the impact and magnitude of damage and the resulting unmet needs of individuals, businesses, the public sector, and the community as a whole. 44 CFR 206.33. When the State official responsible for disaster operations determines that an event may be beyond the capabilities of the State and local government to respond, the State will request that the FEMA Regional Administrator perform a joint FEMA-State PDA. 44 CFR 206.33(a). A damage assessment team is formed, which is composed of at least one representative of the Federal government and one representative of the State. 44 CFR 206.33(b). A local government representative familiar with the extent and location of damage in the community is also included if possible. 44 CFR 206.33(b). Other State and Federal agencies, and voluntary relief organizations may also be asked to participate, as needed. 44 CFR 206.33(b). A FEMA official will brief team members on damage criteria, the kind of information to be collected for the particular incident, and reporting requirements. 44 CFR 206.33(b).

      The length of time required to conduct a PDA varies based upon the circumstances of the event. In large disasters, a major disaster declaration may be made prior to completing a PDA, in which case a damage assessment is conducted following the declaration in order to determine additional program needs. Damage that is widespread may take considerably longer to verify than damage in a concentrated area, as there is a greater geographic area to assess. Certain types of disasters such as flooding, or disasters affecting remote or isolated areas, may slow PDAs down due to limited accessibility. Depending on the above circumstances, a PDA can take anywhere from a day or two to a week or more. On average, a PDA can be completed within a week. At the close of the PDA, FEMA consults with State officials to discuss findings and reconcile any differences. 44 CFR 206.33(c).

   2. State's Submission of Its Declaration Request to FEMA

      During or at the close of the PDA, the Governor of a State submits the request for a major disaster declaration through the appropriate FEMA Regional Administrator. 44 CFR 206.36. The request must be submitted within 30 days of the occurrence of the incident in order to be considered. 44 CFR 206.36(a). The basis for the request must be a finding that (1) the situation is of such severity and magnitude that an effective response is beyond the capabilities of the State and affected local governments, and (2) Federal assistance under the Stafford Act is necessary to supplement the efforts and available resources of the State, local governments, disaster relief organizations, and compensation by insurance for disaster-related losses. 44 CFR 206.36(b)(1)-(2). In addition, the request must include: Confirmation that the Governor has taken appropriate action under State law and directed the execution of the State emergency plan; an estimate of the amount and severity of damages and losses stating the impact of the disaster on the public and private sectors; information describing the nature and amount of State and local resources which have been or will be committed to alleviate the results of the disaster; preliminary estimates of the types and amount of supplementary Federal disaster assistance needed under the Stafford Act; and certification by the Governor that State and local government obligations and expenditures for the current disaster will comply with all applicable cost sharing requirements of the Stafford Act. 44 CFR 206.36(c)(1)-(5).

   3. FEMA's Analysis and Recommendation to the President

      Upon receipt of the Governor's request, the FEMA Regional Administrator provides written acknowledgement of the request. 44 CFR 206.37(a). Based on information obtained by the PDA and consultations with appropriate State and Federal officials and other interested parties, the FEMA Regional Administrator promptly prepares a summary of the PDA findings, analyzes the data, and submits a recommendation to FEMA Headquarters. 44 CFR 206.37(b). This Regional Analysis must include a discussion of State and local resources and capabilities and other assistance available to meet the major disaster-related needs. 44 CFR 206.37(b).

      Based on all available information, the FEMA Administrator formulates a recommendation which is forwarded to the President with the Governor's request. 44 CFR 206.37(c). A recommendation for a major disaster declaration is based on a finding that the situation is or is not of such severity and magnitude as to be beyond the capabilities of the State and its local governments, and must include a determination of whether or not supplemental Federal assistance \2\ under the Stafford Act is necessary and appropriate. 44 CFR 206.37(c)(1). In developing a recommendation, FEMA considers factors such as the amount and type of damages; the impact of damages on affected individuals, the State, and local governments; the available resources of the State and local governments, and other disaster relief organizations; the extent and type of insurance in effect to cover losses; assistance available from other Federal programs and other sources; imminent threats to public health and safety; recent disaster history in the State; hazard mitigation measures taken by the State or local governments, especially implementation of measures required as a result of previous major disaster declarations; and other factors pertinent to a given incident. 44 CFR 206.37(c)(1). When preparing its recommendation for Individual Assistance in particular, FEMA considers specific factors described in 44 CFR 206.48(b).

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      \2\ The supplemental nature of Federal disaster assistance is a longstanding principle of emergency management and disaster response in this country. After any event, the local officials are the first to respond, by nature of their proximity to the event and knowledge of the area and circumstances. If additional resources are needed, the State then steps in to assist. Once those resources are overwhelmed, or it is clear that they will be overwhelmed, the Governor may request a major disaster declaration. 44 CFR 206.36(a). In the event of a declaration, State and local officials continue to lead their respective response and recovery missions, with Federal support provided under the Stafford Act.

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   4. Approval or Denial of the Declaration Request

      Upon completion of its recommendation, FEMA forwards it to the President along with the Governor's request. The Governor's request may result in either a Presidential declaration of a major disaster or an emergency, or denial of the Governor's request. 44 CFR 206.38(a). The Governor will be promptly notified by the FEMA Administrator of a declaration by the President that a major disaster exists, or that the Governor's request does not justify the use of the authorities of the Stafford Act. 44 CFR 206.39. A State may appeal a denial of declaration request within 30 days after the date of the letter denying the request. 44 CFR 206.46(a).

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   5. Types of Assistance Approved Under the Declaration Request

      A major disaster declaration will include the types of assistance that are authorized under the declaration, 44 CFR 206.40(a), although other types may be authorized later, 44 CFR 206.40(c). The types of assistance authorized under the declaration are based upon whether the damage involved and its effects are of such severity and magnitude as to be beyond the response capabilities of the State, the affected local governments, and other potential recipients of supplementary Federal assistance. 44 CFR 206.40(a). A major disaster declaration may authorize all, or only particular types of, supplementary Federal assistance requested by the Governor. 44 CFR 206.40(a). As noted above, when evaluating requests for Individual Assistance, FEMA considers the factors under 44 CFR 206.48(b) to determine whether supplemental Federal Individual Assistance is warranted.

      A major disaster declaration authorizing Individual Assistance may include any or all of the following programs:

      Individuals and Households Program: The Individuals and Households Program (IHP) provides grants, direct assistance, or both to eligible disaster survivors who have necessary expenses and serious needs that they are unable to meet through other means, such as insurance. 44 CFR 206.110-120. This help may be in the form of housing assistance (including Temporary Housing, Repair, Replacement, and Semi-Permanent or Permanent Housing Construction) as well as assistance to meet ``other needs'' such as medical, dental, child care, funeral, personal property, and transportation costs.

      Crisis Counseling Program: The Crisis Counseling Program (CCP) assists individuals and communities recovering from the effects of a natural or human caused disaster through the provision of community based outreach and psycho-educational services. 44 CFR 206.171. Supplemental Federal funding for crisis counseling is available to the State through two grant mechanism: (1) Immediate Services Program, which provides funds for up to 60 days of services immediately following a disaster declaration; and (2) the Regular Services Program, which provides funds for up to nine months following a disaster declaration.

      Disaster Case Management Program: The Disaster Case Management Program (DCMP) is a program that involves a partnership between a disaster case manager and a survivor to develop and carry out a Disaster Recovery Plan. 42 U.S.C. 5189d. The process involves an assessment of the survivor's verified disaster caused unmet needs, development of a goal oriented plan that outlines the steps necessary to achieve recovery, organization and coordination of information on available resources that match the disaster caused unmet need, monitoring of progress towards the recovery plan goals and, when necessary, client advocacy.

      Disaster Legal Services: Disaster Legal Services provides legal assistance to low income individuals who, prior to or as a result of the disaster, are unable to secure legal services adequate to meet their disaster related needs. 44 CFR 206.164. FEMA, through an agreement with the Young Lawyers Division of the American Bar Association, provides free legal help for disaster survivors.

      Disaster Unemployment Assistance: Disaster Unemployment Assistance (DUA) provides unemployment benefits and re-employment services to individuals who have become unemployed as a result of a major disaster and who are not eligible for regular State unemployment insurance. 44 CFR 206.141.

2. Sandy Recovery Improvement Act of 2013

   On January 29, 2013, the President signed the Sandy Recovery Improvement Act of 2013 (SRIA) into law (Pub. L. 113-2). Section 1109 of SRIA requires FEMA, in cooperation with State, local, and Tribal emergency management agencies, to review, update, and revise through rulemaking the factors found at 44 CFR 206.48 that FEMA uses to determine whether to recommend provision of Individual Assistance during a major disaster. These factors help FEMA measure the severity, magnitude, and impact of a disaster.

   Congress directed FEMA to review, update, and revise these factors, including 44 CFR 206.48(b)(2) related to trauma and the specific conditions or losses that contribute to trauma, to provide more objective criteria for evaluating the need for assistance to individuals, to clarify the threshold for eligibility, and to speed a declaration of a major disaster or emergency \3\ under the Stafford Act. Pursuant to SRIA, this rulemaking must be completed by January 29, 2014. Although the necessary process to revise the factors is not yet complete, FEMA intends to complete this process as expeditiously as possible.

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   \3\ The factors that FEMA considers to evaluate the need for assistance to individuals under the Stafford Act are at 44 CFR 206.48. FEMA uses these factors to evaluate a governor's request for a declaration of a major disaster, not an emergency. SRIA Section 1109 states that FEMA must review, update, and revise the factors in 44 CFR 206.48(b). The factors that FEMA uses to evaluate a governor's request for emergency assistance, however, are not provided in 44 CFR 206.48(b) or in FEMA's regulations. Therefore, the scope of this rulemaking will apply only to Individual Assistance factors that FEMA considers when evaluating a Governor's request for a major disaster declaration. Section 502 of the Stafford Act authorizes FEMA to provide IHP assistance as part of an emergency declaration. FEMA has previously considered some of the factors found at 206.48(b) when considering an emergency declaration request that includes IHP assistance. FEMA will continue to consider some of the factors, when applicable, at 44 CFR 206.48(b) when evaluating an emergency declaration request that includes IHP assistance.

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   SRIA also authorized, among other things, the option for Federally recognized Indian Tribal governments to make a request directly to the President for a Federal emergency or major disaster declaration. FEMA will implement this provision of SRIA in a separate rulemaking.

3. FEMA's Outreach Efforts Required by the Sandy Recovery Improvement Act

   Section 1109 of SRIA requires FEMA to cooperate with State, local, and Tribal emergency management agencies during the process of reviewing, updating, and revising the factors found at 44 CFR 206.48(b). FEMA conducted outreach with stakeholders, including meetings with the National Emergency Managers Association, the International Association of Emergency Managers, the National Advisory Council, FEMA regional offices, and Tribal governments (hereinafter ``stakeholder group''). The stakeholder group had widespread participation from individuals involved in emergency management at the State, local, and tribal levels. These outreach efforts were conducted from February 2013 through May 2013 and consisted of in-person conferences and conference calls. During this outreach, a series of themes emerged from the members of the stakeholder group which are discussed below.

   1. The Role of Voluntary, Faith, and Community Based Organizations During Disasters

      Many in the stakeholder group felt that the consideration of services and benefits provided by voluntary, faith-based, and community-based organizations during a disaster should not continue to serve as an indicator for when supplemental Federal assistance is warranted. The stakeholders felt that voluntary, faith-based, and community-based organization involvement may not be available at the time of a disaster declaration and those organizations do

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      not provide funding for the rebuilding or replacement of houses. FEMA currently considers, as an Individual Assistance factor, the extent to which voluntary agencies and State or local programs can meet the needs of disaster survivors. 44 CFR 206.48(b)(4). Voluntary, faith-based, and community-based organizations are often among the first to respond to an event. Following a disaster, voluntary, faith-based, and community-

      based organizations mobilize to provide immediate assistance such as food, clothing, shelter, cleaning supplies, comfort kits, first aid, and medical care, as well as services including coordinating donations, counseling, home repairs, and rebuilding. FEMA is proposing to continue consideration of the resources made available by such organizations as part of the new ``Resource Availability'' factor discussed below. FEMA recognizes that the resources provided by the voluntary, faith-based, and community-based organizations are typically not a long term recovery solution for a disaster affected community and that these organizations' financial capabilities are mostly donor-based and dependent on the economic climate. FEMA also believes that information on voluntary, faith-based, and community-based organizations is valuable because it can enhance the picture of disaster needs at a local, grass roots level and may either offset the need for, or reveal a need for, supplemental Federal assistance.

   2. The Correlation Between the Population Size of a State and Its Capability To Recover

      Several members of the stakeholder group discouraged FEMA from making a correlation between State population size and the capability of that State to recover. More specifically, multiple members of the stakeholder group expressed concern with the table in the current regulations which provides the average amount of Individual Assistance by State. See 206.48(b)(6). This table of averages does not set a threshold for recommending Individual Assistance, but was intended as guidance to States and voluntary agencies as they develop plans and programs to meet the needs of disaster survivors. 44 CFR 206.48(b)(6).

      In developing this proposed rule, FEMA evaluated the utility of this table. FEMA determined that the table should be removed because it causes confusion among States, and may be viewed incorrectly as a threshold for whether a State should request Individual Assistance. In addition, the table is based on 1990 Census data, uses assistance information from 1994-1999, and is based on the previous iteration of the IHP which consisted of two separate programs: (1) The Temporary Housing Assistance Program and (2) the Individual and Family Grant Program. FEMA recognizes that there are many factors, including population, that contribute to a State's capability to respond to and recover from a disaster. FEMA is proposing several factors, discussed below, that will be used in evaluating State capability.

   3. Issues With Widespread Damage and Contiguous States

      Current 44 CFR 206.48(b)(1) notes that high concentrations of damages generally indicate a greater need for Federal assistance than widespread and scattered damages throughout a State. Stakeholders were concerned that the cost of widespread minimal damage across counties within a State may not be appropriately considered within the concentration of damage factor. The stakeholders wanted greater consideration to widespread events that are costly. FEMA recognizes that as a practical matter, widespread minimal damage spread across a larger geographic area, can overwhelm a State's capability to adequately respond to a disaster. Therefore, FEMA is proposing a factor, discussed below, that will evaluate the estimated cost of assistance for a State.

      In events where disasters cross state lines, several emergency managers recommended that a major disaster declaration in one of the States should automatically trigger a major disaster declaration in the other affected State or States. The Stafford Act requires that a Governor's request for a major disaster declaration is based on a finding that the disaster is of such severity and magnitude to be beyond the capabilities of the State and affected local governments. 42 U.S.C. 5170(a). FEMA's major disaster recommendation to the President is based on this same finding. 44 CFR 206.37(c). Each State has different capabilities to respond to, recover from, and mitigate the effects of a disaster. Moreover a disaster that crosses state lines may have differing impacts in the affected states. As such, it is unlikely that every event that impacts multiple states will necessarily be beyond each affected State's respective capabilities. Therefore, rather than recommending that the President automatically declare a disaster for each adjoining State affected by a disaster, FEMA proposes to continue to base its major disaster declaration recommendation on the capability of the affected State and local governments to respond to the event, in accordance with the requirements for a major disaster declaration in the Stafford Act.

   4. Impact on Businesses

      Multiple members of the stakeholder group asked FEMA to consider the impact of an incident on businesses. They believe that there is a direct correlation between impacts on businesses and a community's ability to recovery. As discussed below, FEMA is proposing revised IA factors that consider the impact to businesses because the impacts of a disaster on businesses may impede a community's ability to recover. Business losses alone, however, will not result in a Presidential major disaster declaration that authorizes IA because the IA grant programs do not provide assistance to businesses. Instead, FEMA considers the effect that business disruptions have on disaster survivors. For example, some survivors may lose work or become unemployed due to a disaster, and may otherwise be ineligible for standard unemployment insurance benefits, thus showing an increased need for DUA.

      In addition, the Small Business Administration (SBA) has separate statutory authority and programs, which may be available to assist businesses absent a Presidential major disaster declaration.

   5. Decoupling Individual Assistance Programs

      Several members of the stakeholder group suggested decoupling IA programs so that States can request specific IA programs instead of receiving a generic major disaster declaration that authorizes all IA programs. The manner in which IA programs are requested and authorized is outside the scope of this proposed rulemaking, which is to revise the factors which FEMA uses to evaluate the need for IA. However, current FEMA policy and practice already allows States to request all IA programs or specific IA programs, as appropriate, via its standardized form, Request for Presidential Disaster Declaration Major Disaster or Emergency, OMB Control Number 1660-0009. This form allows States to ``check off'' the IA programs they are requesting.

      Indeed, there have been recent major disaster declarations, which authorized Disaster Unemployment Assistance and the Crisis Counseling Program, without the other IA programs.\4\ These programs

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      meet specific needs in the disaster-impacted community that may be unrelated to physical disaster damage. FEMA may consider recommending authorization of these programs when they are needed, even in the absence of authorization of the Individuals and Households Program, which is generally directly tied to physical disaster damage.

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      \4\ For example South Dakota, DR-4155, Severe Winter Storm, Snowstorm, and Flooding, Declared November 8, 2013 (DUA and CCP), 78 FR 72093; Colorado, DR-4134, Black Forest Wildfire, Declared July 26, 2013 (DUA and CCP), 78 FR 51204; Colorado, DR-4133, Royal Gorge Wildfire, Declared July 26, 2013 (DUA only), 78 FR 51204.

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   6. Impacts to Community

      FEMA received comments from the stakeholder group suggesting that FEMA assess the impacts from a disaster to a community as a whole and not just consider the damage that occurred to individual houses and residences to determine the need for a major disaster declaration that authorizes IA and the specific IA programs required. FEMA is considering implementing this recommendation in the proposed factor described below entitled, ``Impact to Community Infrastructure.'' FEMA believes that by reporting and examining community impacts instead of just individual residence impacts, FEMA and the State will have a better understanding of the overall impact of the disaster on the lives of individuals in the community and which IA programs would benefit disaster survivors. As discussed in more detail below, significant disruptions to important services such as transportation, schools, child care, eldercare, or police services are likely to impede recovery of that community and may be indicative of a heightened need for Federal assistance. In addition, such impacts may show a specific need for certain IA programs. For example, a community may have relatively low damage impacts to individual residences but a large amount of the community's infrastructure, such as schools or roads, may have been destroyed. Such impacts can be quite traumatic to the community and may suggest a need for specific IA programs such as the Crisis Counseling Program, but not necessarily the Individuals and Households Program. This information will assist FEMA in determining which IA programs to approve when granting a major disaster declaration.

   7. Linking Individual Assistance Declarations With Public Assistance Estimated Cost Factor

      Some members of the stakeholder group suggested aligning the financial indicators for IA and Public Assistance major disaster declarations. Currently, FEMA uses the following factors to evaluate the need for a Public Assistance major disaster declaration: Estimated cost of assistance, localized impacts, insurance coverage, hazard mitigation, recent multiple disasters, and programs of other Federal assistance. These factors are focused almost entirely on the impact of the event on State, local, and tribal governments, as well as certain private non-profit organizations. Members of the stakeholder group specifically identified the estimated cost of assistance factor as an approach that could be applied to IA. Under this factor, FEMA evaluates the estimated cost of Federal and non-federal public assistance against the statewide population to give a measure of the per capita impact within the State. 44 CFR 206.48(a)(1). That factor also establishes a $1 million threshold, based on the proposition that even the smallest population States have the capability to cover that level of public assistance infrastructure damage. Under FEMA's current regulations, there is no corresponding IA single indicator designed to evaluate the total cost of the disaster against the capability of a requesting State.

      FEMA agrees with the comments received from emergency managers that the fiscal capacity of a State should be considered, but FEMA does not agree that the Public Assistance per capita indicator measure should be adopted for this purpose. Instead, as discussed below, FEMA proposes to use Total Taxable Resources and Gross Domestic Product by State as indicators of a State's fiscal capacity. For reasons discussed below, FEMA believes that these indicators, calculated by the U.S. Department of Treasury and the U.S. Commerce Department's Bureau of Economic Analysis (BEA), are more appropriate for the purposes of evaluating a State's fiscal capacity and its capability to meet the needs of individuals after an event. In addition to Total Taxable Resources and Gross Domestic Product by State, FEMA will consider the estimated cost of assistance and States would also have the ability to submit other information relevant to their fiscal capacity. FEMA's proposal of a fiscal capacity factor is discussed further below.

   8. Thresholds

      Some members of the stakeholder group indicated that they would like a specific ``hard'' threshold that indicates whether a State would be eligible to receive a major disaster declaration authorizing IA. The stakeholders felt that if there was an established threshold it would give States a clear idea of what level of damage and need the State must have before requesting assistance. The stakeholders believed that this would prevent States from spending the time compiling the data and requesting a declaration when they have not sustained enough damage to qualify for a major disaster declaration that authorizes IA.

      Section 320 of the Stafford Act prohibits the denial of assistance to a geographic area based solely use of an arithmetic formula or a sliding scale based on income or population. 42 U.S.C. 5163. Although FEMA determined that any hard thresholds or inflexible formula would offend the principles of Section 320,\5\ FEMA believes that a systematic and objective approach using standardized factors is important for making informed and consistent recommendations to the President as well as enhancing predictability for a State when they request IA. As discussed throughout section IV, FEMA is proposing to use objective data from other Federal agencies to inform the overall assessment of the request, but, in keeping with the principles of Section 320 and recognizing that every disaster presents unique circumstances, this data alone will not be independently dispositive of whether FEMA recommends the need for IA.

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      \5\ As noted above, FEMA applies a $1 million minimum threshold when evaluating requests for Public Assistance. This is based upon a determination that even the smallest states can be expected to cover that level of damage and that disaster assistance is intended to be supplemental in nature. The minimum threshold is not a sliding scale or an arithmetic formula, nor is it based on population or income. Rather, it is related directly to the degree of damage only. As such, there is no conflict with section 320 of the Stafford Act.

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   9. Insurance

      Under its current regulations, FEMA considers the amount of insurance coverage when evaluating the need for IA. 44 CFR 206.48(b)(5). FEMA received comments from the stakeholder group that said that this insurance coverage factor could be viewed as a penalty for people that have limited insurance or insurance that does not cover the specific disaster damage. FEMA does not agree that the insurance coverage factor penalizes disaster survivors for maintaining private homeowner's insurance or flood insurance. FEMA's programs are not loss indemnification programs. They do not ensure that an applicant is returned to their pre-disaster living condition nor can they cover all disaster-related losses. FEMA assistance is not as comprehensive as insurance coverage and the amount of money that an insurance company will

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      provide as a settlement is typically greater than the dollar amount of assistance FEMA is legally permitted to provide.\6\ FEMA takes insurance coverage into consideration under current 44 CFR 206.48(b)(5) because, under the Stafford Act, Federal disaster assistance cannot duplicate assistance from any source, including available insurance proceeds. When evaluating this factor, FEMA considers the type of disaster damage when determining whether there is insurance coverage. For disaster survivors with insurance that does not cover the specific disaster damage, their losses are considered uninsured.

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      \6\ For disasters occurring in Fiscal Year 2016 the maximum amount of financial assistance provided to an individual or household under section 408 of the Stafford Act (IHP) with respect to any single emergency or major disaster is $33,000. See 80 FR 62086, Oct. 15, 2015. This amount is adjusted annually based on the Consumer Price Index for All Urban Consumers as calculated by the Department of Labor, Bureau of Labor Statistics.

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      Comments that FEMA received from the stakeholder group raised additional concern with the insurance data that FEMA uses because it can be inaccurate leading FEMA to under- or over-estimate the actual insurance penetration rates \7\ within a community. FEMA currently utilizes National Flood Insurance Program (NFIP) data to determine insurance penetration rates for flood damages and Census data to determine homeowners' insurance coverage percentages. FEMA uses the percentage of owner-occupied homes with a mortgage based on Census data to determine an insurance penetration rate. FEMA assumes that a home with a mortgage would require home insurance coverage. FEMA is pursuing additional resources beyond NFIP and Census data to verify insurance penetration rates in order to have the most accurate insurance information available. FEMA is requesting that stakeholders and the public provide information and suggestions on potential sources of data for the most accurate insurance information. FEMA will consider suggestions during the development of the final rule.

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      \7\ Insurance coverage rates and insurance penetration rates are both currently captured in 44 CFR 206.48(b)(5). In the new proposed regulation, both of these insurance rates will be captured at 206.48(b)(2)(vi).

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   10. Homes in Foreclosure

       FEMA received comments from the stakeholder group related to homes in foreclosure. Some commenters stated that if an area with a high foreclosure rate is affected by a disaster, these foreclosed homes without an owner could be a greater burden to the State in the recovery process. FEMA considered this information and has preliminarily concluded that foreclosure data should not be specified in our evaluation factors. FEMA's IA programs do not provide any form of assistance for foreclosed homes. Repair assistance is available only for owner-occupied primary residences. As such, homes without an owner, or homes owned by a bank or other creditor would not be eligible for assistance. FEMA recognizes that high levels of foreclosure may be associated with economic difficulties in the affected area that could also negatively impact a community's ability to recover. However, FEMA believes other factors including poverty level, pre-disaster unemployment, and per capita personal income will be adequate indicators of economic health in most circumstances. If a State believes that homes in foreclosure will impact their capability to respond to the disaster, then the State may articulate this concern in the narrative portion of their declaration request. FEMA considers all relevant information provided in a State's request. 44 CFR 206.48.

   11. Incentives for State Sponsored IA Programs

       FEMA received comments from the stakeholder group stating that FEMA should provide incentives for States to have their own IA programs. Commenters stated that currently there is no consideration by FEMA of the disasters that are paid for by States and that States should not be penalized for having a program that assists its citizens during the time it takes for PDAs to be completed and a major disaster declaration authorized. FEMA agrees with the comments received from emergency managers that any efforts or programs to help citizens by a State should be considered. As discussed below in the ``Planning After Prior Disasters'' factor, FEMA proposes to include consideration of any planning and disaster relief programs a State establishes after a prior disaster because States are ultimately responsible for the well-being of their citizens and therefore should continuously evaluate and improve their disaster planning and relief programs based on lessons learned from previous disasters.

       IV. Discussion of the Proposed Rule

       This rule proposes to implement Section 1109 of SRIA, which requires FEMA to revise and update through rulemaking the Individual Assistance factors that are used to make a major disaster recommendation to the President. States are not required to provide information on every single factor listed below; the amount of information and data provided by each State is voluntary. However, the failure of a State to provide sufficient evidence that supplemental Federal assistance is necessary may result in a delay or possibly denial of a request for a major disaster declaration authorizing IA.

       As is currently the practice, FEMA will continue to use a myriad of factors and data to formulate its recommendations to the President on major disaster declarations that authorize IA. No single data point or factor would determine on its own FEMA's ultimate recommendation nor would any single factor necessarily affect the President's ultimate determination of whether a major disaster declaration authorizing IA is warranted. The proposed factors would not limit the President's discretion regarding major disaster declarations. FEMA reviewed the current factors and proposes to revise the current factors as follows.

1. 44 CFR 206.48--Paragraph (b)(1) State Fiscal Capacity and Resource Availability

   FEMA is proposing to add at 44 CFR 206.48(b)(1) a factor entitled ``State Fiscal Capacity and Resource Availability.'' The factors discussed below will be used by FEMA to evaluate a State's fiscal capacity to respond to a disaster as well as a State's available resources that can or have been committed to the disaster recovery process.

   Fiscal Capacity. FEMA is proposing to evaluate a State's fiscal capacity to respond to and recover from a disaster in 44 CFR 206.48(b)(1)(i)(A)-(D). As discussed above, major disaster declarations are based upon a finding that the event is of such severity and magnitude that an effective response is beyond the capabilities of the State and affected local governments. Economic conditions of the State and affected local governments are clearly relevant to such a finding. However, the current regulations do not specifically include consideration of economic factors that could affect a State's capability to respond to or recover from a disaster. The proposed data points will help FEMA evaluate through independently calculated data whether a State is financially overwhelmed and unable to adequately respond to a disaster.

   In addition, the United States Government Accountability Office (GAO) has suggested in multiple reports \8\ that FEMA should incorporate

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   States' fiscal capacity into its considerations for recommendations on disaster declarations to the President. The GAO reports have historically focused on fiscal capacity in FEMA's Public Assistance (PA) factor criteria, but changes to the PA criteria are outside the scope of this proposed rule. FEMA believes that the same principle applies to IA and PA, in that there is a need to assess a State's capacity to respond and recover from a disaster on its own when determining whether a major disaster declaration is warranted because Federal assistance is supplemental. Each State's capacity to respond and recover varies based on the circumstances of the disaster and the State's resources.

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   \8\ United States Government Accountability Office, FEDERAL DISASTER ASSISTANCE: Improved Criteria Needed to Assess a Jurisdiction's Capability to Respond and Recover on Its Own, GAO-12-

   838, September 2012. Available at: http://www.gao.gov/assets/650/648162.pdf. United States Government Accountability Office, DISASTER ASSISTANCE: Improvement Needed in Disaster Declaration Criteria and Eligibility Assurance Procedures, August 2001. Available at: http://www.gao.gov/assets/240/232622.pdf.

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   FEMA therefore proposes to include in 44 CFR 206.48(b)(1)(i)(A)-(C) the following three factors which will help evaluate a State and local jurisdiction's fiscal capacity: (A) The Total Taxable Resources (TTR) of the State,\9\ (B) the Gross Domestic Product (GDP) by State,\10\ (C) and the Per Capita Personal Income by Local Area. FEMA anticipates that these data points are readily available so that the State can discuss the data points in their request for a major disaster declaration. These publicly available data points, calculated by third-party government agencies, will allow FEMA to use standardized data to evaluate the economic capability of a State to effectively respond to an event.

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   \9\ For a more detailed discussion of the methodology estimating the total taxable resources (TTR) of the State, please refer to Dep't of the Treasury, Treasury Methodology for Estimating Total Taxable Resources (TTR) (last revised Nov. 2002), http://www.treasury.gov/resource-center/economic-policy/Documents/nmpubsum.pdf. This document is also available in the docket for this rulemaking. The data on TTR by State is available at http://www.treasury.gov/resource-center/economic-policy/taxable-resources/Pages/Total-Taxable-Resources.aspx. FEMA provides this Web site for reference purposes, the Web site may change based on U.S. Treasury's future actions, and FEMA will adjust its use of the Web page and data as necessary.

   \10\ Gross Domestic Product of the State was formerly referred to as Gross State Product. For a more detailed discussion of the methodology estimating the Gross Domestic Product of the State, please refer to http://bea.gov/regional/pdf/gsp/GDPState.pdf. This document is also available in the docket for this rulemaking. An example of GDP by State is available at http://www.bea.gov/newsreleases/regional/gdp_state/gsp_newsrelease.htm; however, FEMA will use updated data as new information is published.

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   The TTR of the State is an annual estimate of the relative fiscal capacity of a State, calculated by the U.S. Department of Treasury. TTR is defined as the unduplicated sum of the income flows produced within a State and the income flows, received by its residents, which a State could potentially tax. Calculation of the TTR is based on the GDP by State and additional accounting for resident earnings (wages, salaries, proprietor's income, etc.) from out-of-state, and resident dividend and interest income, as well as reduction for components that are presumed not taxable by States (employee and employer contributions to social insurance, federal indirect business taxes, federal civilian enterprises surplus/deficit). While TTR does not consider the actual fiscal choices made by the States, it does reflect their potential resources. Increases or decreases in TTR could indicate a strengthening or declining State economy for FEMA to consider when making a determination of the State's capacity. In summary, TTR is a flow concept, a comprehensive measure of all the income flows a State can potentially tax. TTR data is updated annually with a two year lag in the data.

   The GDP by State is calculated by the BEA.\11\ GDP by State estimates are measured as the sum of the distributions by industry and state of the components of gross domestic income which is the sum of the costs incurred and incomes earned in the production of GDP. Currently, TTR is only provided for the fifty States and the District of Columbia,\12\ but not the territories; but GDP by State includes calculations for U.S. territories.\13\ FEMA would use GDP by State primarily as an alternative fiscal capacity measure when the TTR of an area is unavailable. GDP by State may also be used by a State when their TTR is inaccurate due to the two year lag in TTR data. It is possible that a State's TTR data could be strong or trending upwards when in fact recent events may have caused a significant drop in the State fiscal capacity that is not yet reflected. This significant drop could be caused by, for instance, a previous disaster or a financial downturn. Additionally, if a disaster had a significant amount of damages and impacts, so much so that it could have a major impact on the real or actual TTR, FEMA would likely recommend granting IA, assuming the damages were not covered by home, property, or flood insurance and IA assistance would not duplicate benefits. TTR is one data point along with numerous others and will not on its own determine FEMA's recommendation. States also have the opportunity, as they have in the past, to tell FEMA how their economy is impacted by the disaster and previous disasters. The State may also present, and FEMA will evaluate, the GDP trend in addition to simply the TTR data.

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   \11\ GDP by State is a component of the TTR calculation.

   \12\ The District of Columbia's TTR does not include income earned by out-of-state commuters. Since the District of Columbia is proscribed by Federal law from taxing the earnings of commuters from outside its borders, the U.S. Treasury has subtracted the earnings of non-residents (commuter income).

   \13\ GDP by State data is currently available from the BEA for the following territories: Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. The U.S. Census publishes GDP for Puerto Rico.

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   Generally, FEMA assumes a State with a low TTR may have a lower threshold for requiring supplemental Federal assistance than a State with a higher TTR because its economy may not be as resilient against the increased financial burdens that are attributed to a large disaster. FEMA assumes territories with lower GDP may have a relatively lower threshold for requiring Federal assistance. While a higher TTR or GDP are indicative of greater fiscal capability, FEMA recognizes that there are disasters that are so large or so destructive as to overwhelm even the most fiscally capable States.

   Per capita personal income by local area is calculated by the BEA,\14\ and is the personal income of the residents of a given area divided by the resident population of the area. BEA uses the Census Bureau's annual midyear population estimates when computing the per capita personal income. FEMA anticipates using per capita personal income by local area as a measure to better assess the need for supplemental Federal assistance within each local area. A local area with a relatively low per capita personal income that is affected by a disaster may have a lower threshold for requiring supplemental Federal assistance. Local governments in areas with low per capita personal income will typically have lower tax bases and therefore may have fewer resources available to help local residents impacted by a disaster, which may indicate a lower threshold for requiring supplemental Federal assistance. Per capita personal income by local area when considered holistically with TTR (and when

   Page 70124

   appropriate GDP by State) will help to identify areas of concentrated need at the micro local area and individual level in addition to the macro State level.

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   \14\ Data on per capita personal income is available on the BEA's ``Local Areas Personal Income & Employment'' Table CA1. FEMA may need to update this source if the BEA provides a new table for per capita personal income, and it is provided here for clarification purposes only.

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   FEMA also proposes to include at 44 CFR 206.48(b)(1)(i)(D) a factor entitled ``Other Factors.'' ``Other Factors'' is included to explicitly prompt the State to raise and discuss any other additional factors related to the State's fiscal capacity, i.e., burdens on a State treasury or a State's inability to collect funds. This factor will encourage a State to provide an explanation of a State's fiscal capacity that might not be captured or accurately reflected in the above factors. A State may have an extraordinary fiscal circumstance that is not reflected in the above factors and FEMA encourages the State to discuss the circumstances. For example, a hurricane may cause extensive damage in a coastal area and negatively impact tourism, which in turn, will have a negative impact on the tax base and fiscal capacity.

   Resource Availability. FEMA proposes to include at 44 CFR 206.48(b)(1)(ii) a factor entitled ``Resource Availability.'' Federal disaster assistance is supplemental in nature. FEMA's current regulations do not provide for the level of granularity and detail for FEMA to fully evaluate what and where the resource shortfalls are for a community and State that was affected by a disaster. ``Resource Availability'' will be an evaluation of the disaster assistance resources available from State, Tribal, and local governments as well as non-governmental organizations and the private sector so that FEMA can determine where, if any, gaps in resources exist. This factor also provides for consideration of those circumstances that may prevent a State from having sufficient resources to devote to the disaster recovery process. Supplemental Federal assistance under the Stafford Act is not warranted or necessary if a State's disaster-caused needs can be met by the available resources provided by a State, Tribal, local governments, non-governmental organizations, or the private sector.

   FEMA is proposing to include at 44 CFR 206.48(b)(1)(ii)(A)-(D) four factors that will enable FEMA to fully evaluate a State's available resources post disaster: (1) State, Tribal, and local government, Non-

   Governmental Organizations (NGO), and Private Sector Activity; (2) Cumulative Effect of Recent Disasters; (3) State Services; and (4) Planning After Prior Disasters.

   In current regulations, FEMA evaluates voluntary agency assistance to determine the need for assistance to individuals under the Stafford Act. 44 CFR 206.48(b)(4). While the current factor's title is ``Voluntary agency assistance,'' both State and local government programs are included. FEMA is clarifying the inclusion of State and local government programs and is also expanding 44 CFR 206.48(b)(1)(ii)(A) to include private sector assistance. FEMA is also specifying Tribal government assistance, which was previously considered under local government programs. FEMA is proposing this as a factor because the level of assistance available to disaster survivors from State, Tribal, and local government, NGOs, and the private sector, may offset a need or reveal an increased need for supplemental assistance. Assistance provided by State, Tribal, and local government, NGOs, and the private sector can include but is not limited to Emergency Management Assistance Compact (EMAC) resources, sheltering, housing programs, feeding, mental health services, child care, elder care, reunification services, clean up kits, blankets and cots, financial assistance, and other donations.

   This factor is an attempt to include the ``Whole Community'' approach to emergency management that reinforces the fact that FEMA is only one part of our nation's emergency management team; that FEMA must evaluate all of the resources of the collective team in preparing for, protecting against, responding to, recovering from and mitigating against all hazards; and that collectively we must meet the needs of the entire community in each of these areas. FEMA fully recognizes that a government-centric approach to emergency management is not enough to meet the challenges posed by a catastrophic incident. When the community is engaged in emergency management, it becomes empowered to identify its needs and the existing resources that may be used to address them. Collectively, we can determine the best ways to organize and strengthen community assets, capacities, and interests. This allows us, as a nation, to expand our reach and deliver services more efficiently and cost effectively to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards. The ``Whole Community'' approach is an ongoing component of the nation's larger, coordinated effort to enhance emergency planning and strengthen the nation's overall level of preparedness.

   FEMA proposes to add a new factor ``Cumulative Effect of Recent Disasters,'' at 44 CFR 206.48(b)(1)(ii)(B), to evaluate a State's disaster history, both Presidential (public and individual assistance) and gubernatorial disaster declarations, for the previous 24-month period. FEMA is particularly interested in information from a State highlighting any disasters that have occurred within the State's current budget cycle. FEMA is proposing this as a factor because multiple disasters in a 24-month period, and particularly within one State budget cycle, may significantly strain a State budget and reduce the State's capability to adequately respond to and recover from a disaster without supplemental Federal assistance. In addition, pursuant to FEMA's regulations, at 44 CFR 206.48(a)(5), in evaluating the need for assistance under the Public Assistance program, FEMA considers the disaster history of the State for the last 12-month period. FEMA is requesting 24 months of State disaster history data because it closely aligns with the length of time for IA programs. For example, IHP assistance is available for 18 months and DCMP is available for 24 months from the date of a major disaster declaration. A State with an open disaster period that is affected by another disaster might have various unique issues related to recovery and the compounded effects of two disasters within a short amount of time. Review of disaster activity occurring within the past 24 months will help to capture any ongoing disaster activity where individuals may still be receiving IHP assistance. If the length of time were limited to only 12 months, this factor might not identify that the State currently has an open major disaster declaration where individuals are potentially still receiving FEMA IA assistance. This time period will also align with most State government fiscal cycles, which are typically one or two years. An unanticipated number of disasters within a fiscal cycle may contribute to budget shortfalls that may render a State less able to respond to an event.

   FEMA is proposing a new factor, ``State Services,'' at 44 CFR 206.48(b)(1)(ii)(C). Under this factor, FEMA would evaluate information regarding any circumstances that prevent a State from having the resources to provide sufficient services to its citizens. FEMA strongly believes that it is important for a State to have pre-identified funding sources or sufficient disaster relief funds or programs that can be utilized to assist its citizens after a disaster. A State requesting a major disaster declaration should address the reasons why the State does not have sufficient funds, or

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   why the funding sources are insufficient to meet the needs of its citizens.

   Finally, under the ``Resource Availability'' factor, FEMA is proposing to consider a State's ``Planning After Prior Disasters,'' at 44 CFR 206.48(b)(1)(ii)(D). Federal disaster assistance is supplemental and is not intended to take the place of State disaster assistance programs. States are strongly encouraged to develop and continuously improve their own disaster assistance programs. For this factor, States should identify any new and existing individual assistance programs as well as any improvements to existing individual assistance programs made as a result of previous disasters. States that continually fail to address limitations or shortfalls identified by FEMA or the State after previous events will receive negative consideration under this factor. FEMA is proposing this as a factor because States are ultimately responsible for the well-being of their citizens and therefore should continuously evaluate and improve their disaster planning and relief programs based on lessons learned from previous disasters.

2. 44 CFR 206.48--Paragraph (b)(2) Uninsured Home and Personal Property Losses

   Under FEMA's current regulations, FEMA evaluates the concentration of damages to individuals. 44 CFR 206.48(b)(1). FEMA also considers the amount of insurance coverage pursuant to 44 CFR 206.48(b)(5). FEMA is proposing to incorporate both of the current factors, as well as additional information collected during the PDA process, into a new factor entitled ``Uninsured Home and Personal Property Losses'' in a new 44 CFR 206.48(b)(2). As described above in section (III)(A)(1) of the Background section, FEMA and the State participate in the joint PDA process, which includes an examination of the extent of damage to individual residences. The PDA data points help to illustrate the extent of damage that a community has sustained and help FEMA estimate the probable grant assistance under the Individuals and Households Program. The proposed data points save FEMA time when evaluating a major disaster declaration request because the requested data has already been evaluated and validated by FEMA during the joint PDA process. FEMA currently collects this information via the joint PDA process and uses them when evaluating requests for major disaster declaration.\15\ This proposed factor will more accurately describe the information collected and evaluated during joint PDAs.

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   \15\ Preliminary Damage Assessment for Individual Assistance Operations Manual (9327.2). Available at: http://www.fema.gov/media-library/assets/documents/29569.

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   The first proposed data point is the cause of damage in a new paragraph 44 CFR 206.48(b)(2)(i). FEMA is requesting this information in part because it is directly relates to insurance coverage. The cause of disaster damage refers to the peril that caused the disaster damage such as a tornado or wind driven rain. Insurance policies typically only cover damage resulting from a specific peril or perils. FEMA is legally prohibited from duplicating insurance proceeds when providing disaster assistance and must know the level of insurance coverage and the cause of the damage to estimate the potential amount of Federal IA available.

   The second proposed data point is information on the jurisdictions impacted and the concentration of damages in a new paragraph 44 CFR 206.48(b)(2)(ii). FEMA is requesting this information because it will highlight the counties within a State that may require IA as well as whether the damages were in one concentrated area of the State or widespread. This information will be gathered during the PDA process by either the damage assessment teams or via geographic information system (GIS) data. IA is typically authorized based on county or parish jurisdictional boundaries.

   The third proposed data point is the number of homes impacted and degree of damage in a new paragraph 44 CFR 206.48(b)(2)(iii). Degree of damage refers to the extent of disaster damage and its impact on the habitability of a home. FEMA is requesting this information because it illustrates how a community was affected and what types and the extent of IA that may be needed for the community. This information is typically given at both the county or parish jurisdictional level and the State wide level.

   The fourth proposed data point is the estimated cost of assistance in a new paragraph 44 CFR 206.48(b)(2)(iv). The estimated cost of assistance is typically generated by the joint FEMA-State PDA and is already currently collected in FEMA's current declarations process. The estimated cost of damage will help FEMA gather information about the cost of a disaster and the potential amount of FEMA assistance that would be awarded. This data point is often determined using information obtained from the other data points outlined in this factor. This data point is important because it will capture the probable grant assistance that will be awarded for personal property in addition to grant assistance for housing.

   The fifth proposed data point is information on the homeownership rate of impacted homes in a new paragraph 44 CFR 206.48(b)(2)(v). This factor is an estimated rate of the homeownership of impacted homes in the disaster-affected area. FEMA may provide assistance for real property repair or replacement to homeowners for their primary residence and rental assistance to homeowners or renters; therefore, it is important to know homeownership rates in order to estimate probable assistance.

   The sixth proposed data point is information on the percentage of affected households with insurance coverage appropriate to the peril in a new paragraph 44 CFR 206.48(b)(2)(vi). FEMA is requesting this information because FEMA will consider the percentage of affected households with insurance coverage as part of the evaluation of whether the IHP is necessary and to assist in determining probable grant assistance. Insurance appropriate to the peril is, for example, if the cause of the damage is wind and the homeowner has homeowner's insurance, then the homeowner has insurance appropriate to the peril. If the homeowner has homeowner's insurance, but no flood insurance, and the cause of the damage is flooding, then the homeowner does not have insurance appropriate to the peril. If a homeowner has sufficient and appropriate insurance to the peril, Federal assistance may be limited to ONA, CCP, DCMP, or DUA programs because the Stafford Act prohibits FEMA from duplicating benefits received from any other source, including insurance proceeds. The State should attempt to provide this information through the State insurance commissioner or office and other appropriate sources. FEMA will verify the data using the best analysis methods available. FEMA currently utilizes National Flood Insurance Program (NFIP) data to determine insurance penetration rates for flood damages and Census data to determine homeowners' insurance coverage percentages. Since insurance coverage is not collected during the Census, the percentage of owner-occupied homes with a mortgage is used to determine an insurance penetration rate, due to assumption that a home with a mortgage would require home insurance coverage. FEMA is pursuing additional resources beyond NFIP and Census data to verify

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   insurance penetration rates in order to have the most accurate insurance information available. As previously mentioned in Section III(C)(9), FEMA is requesting that stakeholders and the public provide information and suggestions on potential sources of data for the most accurate insurance information. FEMA will consider any suggestions during the development of the final rule.

   Finally, the seventh proposed data point is any other relevant preliminary damage assessment data in a new paragraph 44 CFR 206.48(b)(2)(vii). FEMA is proposing this factor to explicitly prompt the State to discuss any other damage assessment information that was gathered during the joint FEMA-State PDA that the State believes demonstrates that an effective response is beyond the capability of the State and affected local governments and that supplemental Federal assistance for individuals is appropriate.

3. 44 CFR 206.48--Paragraph (b)(3) Disaster Impacted Population Profile

   In FEMA's current regulations at 44 CFR 206.48(b)(3), FEMA considers special populations in evaluating the need for assistance to individuals under the Stafford Act. FEMA proposes to expand on this current factor, in the proposed factor ``Disaster Impacted Population Profile'' at a revised 44 CFR 206.48(b)(3). Currently, in the ``special populations'' factor FEMA considers demographic information regarding low income, elderly, or unemployed populations that are affected by a major disaster because those populations may have a greater need for assistance. 44 CFR 206.48(b)(3). FEMA also considers whether a State has any American Indian or Alaskan Native Tribal populations. 44 CFR 206.48(b)(3).

   FEMA is proposing to consider additional demographic data points related to the disaster impacted community. This information will help FEMA to identify the specific issues or obstacles that a community may face in their disaster recovery. FEMA will consider the following U.S. Census and other Federal agency \16\ demographic data points \17\ in making a recommendation for IA under a major disaster declaration: (1) The percentage of the population for whom poverty status is determined; (2) the percentage of the population already receiving government assistance, such as Supplemental Security Income and Supplemental Nutrition Assistance Program benefits; (3) the pre-disaster unemployment rate; (4) the percentage of the population that is 65 years or older; (5) the percentage of the population 18 years or younger; (6) the percentage of the population with a disability; and (7) the percentage of the population who speak a language other than English and speak English less than ``very well.'' In addition, FEMA will continue to consider any unique considerations regarding American Indian and Alaskan Native Tribal populations raised in the State's request for a major disaster declaration, even if such considerations are not be reflected in the U.S. Census Bureau data. These data points are readily available so that the State can discuss the data points in its request for a major disaster declaration.

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   \16\ Poverty data comes from the U.S. Census Small Area Estimate Branch, ``Poverty and Median Income Estimates for Counties.'' Supplemental Nutrition Assistance Program data is from the U.S. Census's American Community Survey (ACS) using the American FactFinder, Advanced Search, Geographies: ``All Counties within the United States,'' Topics: S2201, 5-year estimates. Supplemental Security Income data comes from ACS using the American FactFinder, Advanced Search, Geographies: ``All Counties within the United States,'' Topics: B19056, 5-year estimates. The unemployment data at the state and county level are respectively available at http://www.bls.gov/web/laus/laumstrk.htm and http://www.bls.gov/lau/#cntyaa. Data on county populations of ``65 or Older'' and ``18 or Younger'' data comes from the ACS using the American FactFinder, Advanced Search, Geographies: ``All Counties within the United States,'' Topics: DP05, 5-year estimates. Data on populations with a disability comes from the ACS, American FactFinder, Advanced Search, Geographies: ``All Counties within the United States,'' Topics: S1810, 3-year estimates. Data on ``percent of population who speaks English less than very well'' comes from the ACS, American FactFinder, Advanced Search, Geographies: ``All Counties in the United States,'' Topics: B06007, 5-year estimates. Data on American Indian and Alaska Native populations comes from the ACS, American FactFinder, Advanced Search, Geographies: ``All Counties within the United States,'' Topics: DP05, 5-year estimates. FEMA may update these sources to account for future improvement and changes in the U.S. Census, BLS, BEA, and Treasury data reporting, and the sources are provided here for example.

   \17\ For definitions related to demographic data points, please refer to the associated organizations Web sites. For example, refer to U.S. Census Small Area Income and Poverty Estimates definitions at http://www.census.gov/did/www/saipe/methods/statecounty/20102012county.html for percentage of the population for whom poverty status is determined. For a definition of the pre-disaster unemployment rate, refer to Bureau of Labor Statics at http://www.bls.gov/bls/glossary.htm and search for the term ``unemployment rate''. The U.S. Census glossary at http://www.census.gov/glossary and American Community Survey also provide definitions related to demographic data points including the following terms: Assistance and Subsidies, Age, Disability, Language Spoken at Home, and Ability to Speak English.

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   The proposed population demographic data points are relevant to all of FEMA's IA programs and are a valuable source of information to determine if specific programs are needed after a disaster. For example, demographic information revealing a large number of low income, unemployed, or elderly populations in a disaster area could indicate a need for supplemental Federal assistance because those populations may not have a large amount of disposable income or qualify for a Small Business Administration (SBA) disaster loan. With respect to demographic information that reveals a large non-English speaking population, this will help FEMA to structure their outreach efforts to ensure that any messaging efforts are in the appropriate languages.

4. 44 CFR 206.48--Paragraph (b)(4) Impact to Community Infrastructure

   In FEMA's current regulations, at 44 CFR 206.48(b), FEMA considers the degree of trauma to a State and to communities when evaluating a State's need for IA. FEMA considers conditions that might cause trauma, such as large scale disruption of normal community functions and services and emergency needs such as extended or widespread loss of power or water. 44 CFR 206.48(b)(2)(ii) and (iii). SRIA specifically identified trauma as a factor that required clarification as to the specific conditions or losses that contribute to trauma. FEMA proposes to examine what was previously identified as part of the ``trauma'' factor by identifying and evaluating several more objective factors which contribute to the level of trauma caused by a disaster.\18\ The ``Impact to Community Infrastructure'' factor at a proposed new 44 CFR 206.48(b)(4) includes several considerations which relate to the level of trauma, as well as considerations that shed light on a community's ability to recover from a disaster. This factor has three components: (1) Life-Saving and Life-Sustaining Services; (2) Essential Community Services; and (3) Transportation Infrastructure and Utilities. Significant levels of damage, disruption, or destruction to any or all of these components may hinder the ability of individuals and families to make a timely recovery, be indicative of higher levels of trauma, and suggest an increased need for supplemental Federal assistance--for example Other Needs Assistance, Crisis Counseling Program, or Disaster Case Management Program. FEMA anticipates information on the three components will be provided by the State.

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   \18\ FEMA is also providing additional clarity on what constituted trauma in the Casualties factor which can be found in the proposed new 44 CFR 206.48(b)(5) and is discussed below.

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   Page 70127

   FEMA is requesting information on an activity or disruption that lasts for more than 72 hours for each of the below components. As a general matter members of the public should be prepared to potentially be on their own at least 72 hours after a disaster.\19\ It may take FEMA up to 72 hours to assess and mobilize Federal assets to help a State that is overwhelmed by a disaster. In addition, preparing for at least this amount of time will allow emergency responders to focus on those individuals requiring more immediate assistance.

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   \19\ See the following Web sites as examples: The FEMA run national public service advertising (PSA) campaign Web site http://www.ready.gov/build-a-kit; the Texas Division of Emergency Management Web site http://www.txdps.state.tx.us/dem/Preparedness/emerSupplyKits.htm; the San Francisco Department of Emergency Management Web site http://www.sf72.org/home; and the New York City Office of Emergency Management Web site http://www.nyc.gov/html/oem/html/get_prepared/supplies.shtml.

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   Life-Saving and Life-Sustaining Services. FEMA is proposing that a State provide information regarding the impact of the disaster on life-

   saving and life-sustaining services for a period of greater than 72 hours in a new paragraph 44 CFR 206.48(b)(4)(i). FEMA is specifically seeking information on services such as, but not limited to, police, fire/EMS, hospital/medical, sewage, and water treatment services because prolonged disruption may affect the viability of a community and necessitate survivor relocation. The effects of a disaster will increase the demand for life-saving and life-sustaining services and necessitate a more robust response. Significant or extended disruptions to these services will hinder a community's ability to recover from a disaster.

   Life-saving services are services that provide an essential community function that, if interrupted, will affect public health and safety in a community. Some typical examples of life-saving services data that FEMA is requesting are whether emergency medical services such as ambulances, fire services, police services, or hospital services are affected by the disaster. Life-sustaining services are services that are required to support life and well-being within a community and are necessary for the community to function as normal. Some typical examples of life-sustaining services data that FEMA is requesting are whether any community healthcare programs, assistance to homebound individuals such as Meals on Wheels, or food providers such as grocery stores or restaurants are affected by the disaster.

   Essential Community Services. FEMA is proposing that a State provide information regarding the impact on essential community services for a period greater than 72 hours in a new paragraph 44 CFR 206.48(b)(4)(ii). Essential community services are services that improve the quality of life for a person in a community but do not sustain a person's life. FEMA is requesting information on the impact of the disaster on essential community services such as, but not limited to, schools, social services programs and providers, child care, and eldercare. Information on the impact of the disaster on essential community services can include, for instance, the number of schools closed, whether any social service programs or providers such as Meals on Wheels were affected by the disaster, and the number of providers of child care or eldercare in the community that closed. Significant or extended disruptions to these services will hinder the affected community's ability to recover from a disaster.

   Transportation Infrastructure and Utilities. FEMA is proposing that the State provide information regarding the impact of the disaster on transportation infrastructure and utilities in a new paragraph 44 CFR 206.48(b)(4)(iii). Specifically, FEMA is seeking information on the number of roads, bridges, tunnels, and public transit closures and utility outages of water, power, sewage, and gas that last longer than 72 hours. Transportation infrastructure or utility disruptions can render housing uninhabitable or inaccessible for disaster survivors, affect the delivery of life sustaining commodities, provision of emergency services, ability to shelter in place, and efforts to rebuild. Significant or extended disruptions to this infrastructure will hinder the affected community's ability to recover from a disaster.

5. 44 CFR 206.48--Paragraph (b)(5) Casualties

   In FEMA's current regulations, at 44 CFR 206.48(b)(2)(i), FEMA evaluates the degree of trauma to a State and to communities, including consideration of ``large numbers of injuries and deaths.'' As discussed above, SRIA specifically directed FEMA to clarify the factor related to trauma; the proposed changes to the Impact to Community Infrastructure factor, described above, represent part of this effort.

   In addition, FEMA is proposing in a new 44 CFR 206.48(b)(5) that States submit information on the number of individuals who are missing, injured, or deceased due to a disaster. FEMA believes that this information may indicate a heightened need for supplemental Federal assistance because casualties are clearly indicative of the level of trauma in the affected area. Moreover, each of the proposed data points link to one or more types of assistance under IA programs. The estimated number of missing individuals can highlight how traumatic an event was for a community and indicate a potential need for crisis counseling. This information may also be an indicator that additional injured or deceased individuals may be discovered during the course of the disaster recovery. The estimated number of injured individuals may also indicate a need for crisis counseling as well as medical or dental assistance under the ONA provision of the Individuals and Households Program. The estimated number of deceased individuals may indicate a need for crisis counseling as well as funeral assistance under ONA. These proposed data points are typically provided by the State already.

6. 44 CFR 206.48--Paragraph (b)(6) Disaster Related Unemployment

   In FEMA's current regulations, FEMA considers whether ``special populations,'' such as the unemployed, are affected by the disaster and whether they may have a greater need for assistance in 44 CFR 206.48(b)(3). As discussed above, FEMA is proposing to add a ``Disaster Impacted Population Profile'' factor, which incorporates consideration of a number of special populations, including the percentage of low-

   income, unemployed, and elderly individuals within the population.

   In addition, FEMA is proposing a new factor, ``Disaster Related Unemployment,'' in a new paragraph 44 CFR 206.48(b)(6) that will evaluate unemployment in a different manner than FEMA's current regulations. FEMA's current regulations are focused primarily on those that are unemployed prior to the disaster. In this new factor, FEMA will seek to identify individuals that may have lost work or become unemployed as a result of the disaster.

   The Disaster Unemployment Assistance program (DUA), operation of which has been delegated to the Department of Labor, 44 CFR 206.141, provides unemployment benefits and re-employment services to individuals who have become unemployed as a result of a major disaster and who are not eligible for regular State unemployment insurance. The types of workers who typically receive such assistance are self-

   employed, service industry workers, and seasonal workers such as those employed in tourism, fishing, or agriculture industries. In

   Page 70128

   order to fully evaluate whether or not DUA is appropriate, FEMA is requesting that a State provide information on the estimated number of disaster survivors who lost work or became unemployed due to a disaster and who do not qualify for standard unemployment insurance.

   In addition, FEMA is requesting that a State provide information regarding any major employers that are affected in the area by the disaster because it may highlight an additional need for the community in their recovery efforts. When a major employer in a community is affected by a disaster, it can signal to FEMA that the community will have a prolonged recovery because a large amount of individuals may be out of work and unable to support their own recovery efforts. This may further indicate need for DUA and other IA programs. FEMA anticipates that the State will provide this information.

7. Principal Factors for Evaluating the Need for the Individuals and Households Program

   FEMA is proposing that the principal factors it will consider in evaluation of any major disaster declaration request for IHP will be the fiscal capacity of the requesting State (44 CFR 206.48(b)(1)(i)) and the uninsured home and personal property losses (44 CFR 206.46(b)(2)). As discussed above, major disaster declarations are based upon a finding that the event is of such severity and magnitude that effective response and recovery is beyond the capabilities of the State and affected local governments. IHP provides grants and direct assistance to eligible disaster survivors who have necessary and serious needs that they are unable to meet through other means. In order to determine the need for IHP, it is important to evaluate the total estimated need for such assistance resulting from the event and to compare that estimated need to the fiscal capability of the requesting State.

   FEMA evaluated major disaster declaration requests including IHP between January 2008 and July 2013 and determined that the uninsured home and personal property losses' estimated cost of assistance was an important factor driving whether a major disaster declaration authorizing IHP was declared by the President. FEMA found that 97% of requests involving estimated costs of assistance that were equal to or greater than $7.5 million were granted major disaster declarations authorizing IHP, while only 6% of requests involving estimated costs of assistance equal to or less than $1.5 million were granted. Requests falling between those numbers were much more uncertain, with approximately 44% granted, as reflected in Table 1.

   Table 1--Estimated Cost of Assistance to Declaration Decision Comparative

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   Number of Number of Percentage of

   Dollar amount of estimated costs of assistance disaster disasters disasters

   requests declared declared

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   $7.5 million or more............................................ 32 31 97

   $1.5 million to $7.5 million.................................... 87 38 44

   $1.5 million or less............................................ 34 2 6

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   * Based on major disaster declaration requests including IHP between January 2008 and July 2013.

   Similarly, FEMA found that the ratio of IA Cost to Capacity (ICC),\20\ which is the estimated cost of IA divided by the State's TTR in millions, was particularly indicative of the declaration result above and below certain levels. FEMA conducted a review of 153 \21\ major disaster declaration requests that included IA that were submitted between January 2008 to July 2013 to determine if there would be any impact from using TTR in assessing a State's need for a major disaster declaration authorizing IA. Each State request included an estimate of the costs from the damages attributed to the disaster event. FEMA retrieved the TTR per State at the time of each request. For each request, FEMA divided the estimated cost by the State TTR in millions. For example, if a State estimated $2,000,000 in IA costs and the State's TTR was $30,000,000,000, FEMA divided $30,000,000,000 by $1,000,000 to get the State's TTR in millions which is $30,000. FEMA then divided $2,000,000 by $30,000 to get the ratio of IA Cost to Capacity (ICC) of 66.7.

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   \20\ See the discussion in V. Regulatory Analysis; A. Executive Order 12866; 5. Impacts to Costs, Benefits, and Transfer Payments; d. Transfer Payments, for more detailed explanation of ICC and these findings.

   \21\ For the analysis on TTR, FEMA excluded disaster declaration requests that did not include a request for IA. FEMA also excluded duplicate requests, U.S. territories' requests (because there is no TTR data available), requests without summaries of the PDA data or with insufficient data, and requests that involved an expedited decision.

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   Based on the ICC calculation for all 153 State requests, there is a general trend that shows the greater the ICC ratio for a major disaster declaration request that included IA, especially above 25, the more likely the request would be granted. Additionally, the lower the ICC ratio for a major disaster declaration request that included IA, especially below 10, the more likely the request was denied. Major disaster declaration requests for IA with an ICC greater than 25 were granted 95% of the time, while requests with an ICC below 10 were granted only 7% of the time. Requests with ICCs falling in between 10 and 25 were granted approximately half the time.

   FEMA is not proposing to use these numbers as a hard ``threshold'' or incorporate them into regulation because there is no one factor required to receive a major disaster declaration authorizing IA and we want to preserve the President and FEMA's discretion to consider the circumstances of each event. Moreover, FEMA recognizes that this kind of analysis can help identify trends and ensure consistent decisionmaking over time, but does not always provide the full scope of information necessary for FEMA to make an informed recommendation.

   However, FEMA believes that providing these types of trends and historic data is important to help guide States in their consideration of whether or not an event might warrant a major disaster declaration authorizing IA. The trends and historical data will also help guide State planning with respect to what level of IHP damage they should expect to handle without supplemental Federal assistance. This type of planning guidance is consistent with the original intent behind the table currently in 44 CFR 206.48(b)(6). As discussed above, the data in that table eventually became out of date and it no longer has any utility as a planning tool.

   In order to ensure that the most useful and up to date data and information are available to States for guidance and planning purposes, FEMA proposes to compile and periodically publish aggregate PDA data for major disaster requests, including IHP. Currently,

   Page 70129

   FEMA publishes Preliminary Damage Assessment Reports \22\ for every request for a major disaster declaration. These reports lay out the PDA data that was provided in the Governor's request and indicate whether or not the request resulted in a declaration. Upon finalization of new IA declaration factors, FEMA intends to continue publishing these reports with new declaration factors. In addition, FEMA intends to periodically publish the aggregate data from these reports in a format that will assist States in evaluating the likelihood of receiving a major disaster declaration for a specific event and for planning for future events. By publishing this information in periodic guidance, and not codifying it in regulation, FEMA would ensure that the data remains timely and useful.

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   \22\ These can be found on FEMA's Web site at: https://www.fema.gov/preliminary-damage-assessment-reports.

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   In addition to publishing PDA data, FEMA intends to publish guidance that provides clarity to States on how FEMA would utilize the new proposed factors when it evaluates major disaster declaration requests that include IA. This guidance will provide additional detail regarding analysis of the principal factors as well as other factors identified in the proposed rule. FEMA intends to publish the guidance for public comment to this rulemaking docket, and FEMA will develop the final rule and guidance as a pair taking into consideration all comments received on the NPRM and guidance. Over time, FEMA may update this guidance as necessary. The provision of more specific details regarding evaluation of the specific factors through guidance will allow FEMA to be more nimble in adapting to changing circumstances or changing priorities, while also creating an important transparency benefit for State and local governments.

   It is important to note that certain disasters may present unique circumstances which cannot be anticipated by regulation or policy guidance, as such States may submit, and FEMA may evaluate, all relevant information. In addition, FEMA only evaluates requests and makes recommendations to the President. The sole discretion to approve or deny any request for major disaster declaration request lies with the President.

   V. Regulatory Analysis

1. Executive Order 12866, Regulatory Planning and Review and Executive Order 13563, Improving Regulation and Regulatory Review

   1. Executive Summary & A-4 Accounting Statement

      Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a ``significant regulatory action'' although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

      This proposed rule would impose a cost burden of $3,752 in the first year of implementation and $1,609 annually for subsequent years. During the ten year period following the final rule's effective date, the total cost would be $18,233 undiscounted. The ten year present value total cost would be $15,806 and $13,302 if discounted at three and seven percent, respectively. The small annualized cost of the proposed rule would be $1,853 at three percent and $1,894 at seven percent.\23\

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      \23\ FEMA includes estimates of discounted present value costs and annualized costs according to guidance from OMB Circular A-4. Office of Management and Budget, Published September 17, 2003. Available at: http://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf.

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      Despite the newly identified factors, this proposed rule would not change the total amount of assistance available to individuals and households because much of the proposed rule codifies FEMA's evolving declarations practice since 1999. FEMA does not anticipate the two newly proposed factors would change the total amount of individual assistance as well, which is discussed in the following sections. Benefits of the proposed rule include clarifying FEMA's existing practices, reducing processing time for requests due to clarifications, and providing States with notice of the new factor information FEMA is proposing to consider as part of the IA declarations process.

      A-4 Accounting Table

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      Estimates Units

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      Category Primary Low High Discount Notes

      estimate estimate estimate Year dollar rate Period covered

      --------------------------------------------------------------------------------------------------------------------------------------------------------

      Benefits

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      Annualized Monetized ($millions/year) None None None NA NA NA..................... Not Quantified.

      Annualized Quantified................ None None None NA NA NA..................... Not Quantified.

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      Qualitative.......................... The proposed rule more clearly identifies declaration factors FEMA considers in making

      its recommendation to the President on a major disaster declaration authorizing IA. It

      codifies many factors FEMA currently considers but are not specifically identified in 44

      CFR 206.48(b). The proposed rule may also result in regulatory efficiencies due to

      reduced process time and effort (back and forth). In addition, the newly identified

      factors would provide FEMA additional information on a requesting State's fiscal

      capacity and resource availability.

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      Costs

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      Annualized Monetized................. $1,894.0 $0.0 $0.0 2013 7% 10 Years............... None.

      $1,853.0 $0.0 $0.0 2013 3% 10 Years...............

      Page 70130

      Annualized Quantified................ None None None 2013 N/A 10 Years...............

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      Qualitative.......................... None.

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      Transfers

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      Federal Annualized Monetized None None None NA 7% NA..................... None.

      ($millions/year).

      Other Annualized Monetized ($millions/ None None None NA 7% NA..................... None.

      year).

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      Effects

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      State, Local, and/or Tribal None None None N/A NA NA..................... None.

      Government.

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      Small Business....................... FEMA certifies under 5 U.S.C. 605(b) that this proposed rule would not, if promulgated, have a significant

      economic impact on a substantial number of small entities.

      Wages................................ None.

      Growth............................... Not Measured.

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   2. Need for Regulatory Action

      FEMA is proposing this rule to provide clarity on the IA declaration factors that FEMA currently considers in support of its recommendation to the President on whether a major disaster declaration authorizing IA is warranted. The additional clarity may reduce delays in the declaration process by decreasing back and forth between States and FEMA in the declarations process. FEMA is also proposing two new factors on Fiscal Capacity and Resource Availability to provide additional context on potential disaster situations. The proposed rule would also satisfy the requirements outlined in Section 1109 of SRIA.

   3. Affected Population

      Requests for a Federal major disaster declaration authorizing IA must come from a State's Governor. 44 CFR 206.36(a). As such, the proposed rule affects the 56 States that are eligible to request a Presidential major disaster declaration authorizing IA. States are defined in 44 CFR 206.2(a)(22), and include any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

      Although Section 1110 of SRIA amended the Stafford Act to allow Federally recognized Indian Tribal governments to submit requests for emergency or major disaster declarations, SRIA charged FEMA to implement that authority separately by rulemaking. Thus such declarations would be covered by a separate process and are not included in this proposed rule. Local governments are also not affected by the proposed rule because the disaster related information local governments provide to the State is part of their current disaster response process to provide situational awareness and ascertain need for further assistance.

   4. Current Baseline and Changes From Proposed Rule

      The proposed rule largely codifies many considerations that FEMA has applied for several years under the ``other relevant information'' prong of the regulation but were not specifically identified in FEMA regulations. FEMA reviewed State major disaster declaration letters that requested IA for numerous disasters and found that States typically included more information and data than what is specifically identified in the current regulations at 44 CFR 206.48(b).\24\ As such, costs for States would be minimally impacted by the proposed rule because States currently provide FEMA with the proposed information for major disaster declaration requests, as appropriate. A marginal analysis table evaluating each of the considerations is provided later in the preamble and a more detailed table is provided in the rulemaking docket.

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      \24\ FEMA reviewed a sample of State major disaster declaration request letters and found that each letter was unique and provided many of the data points and information that would be explicitly included under the proposed regulation. The information submitted will vary depending on the disaster, the scope of damages and the need for assistance. FEMA does not require every data point to be submitted to get a declaration. Some requests will have more data or information, while other requests will have less. For instance, in more severe events to less resilient areas, the States did not need to provide a large amount of information to get a declaration, because it was evident to FEMA and the White House that the individual assistance needs were outside the capacity of the requesting State.

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      In addition, as stated previously, Indian Tribal governments (requesting assistance through the State) and local governments currently provide the proposed factor information for their local area and affected residents to the State in support of a State's request and its determination on whether a request for a major disaster declaration authorizing IA is warranted. Therefore, FEMA anticipates Indian Tribal governments (requesting assistance through the State) and local governments will not incur additional costs by the proposed regulation.

      FEMA is also proposing to include two new factors: Fiscal Capacity and Resource Availability. Both new factors have small burden increases associated with obtaining the additional information. FEMA considers Fiscal Capacity data solely a Federal burden increase since it intends to collect the information. Resource Availability information is considered a State burden increase since States would provide such information. However, FEMA does not anticipate either new factor to impact the number of IA declaration requests received or the amount of IA assistance provided, and therefore no impact to transfer payments.

      Fiscal Capacity. FEMA recognizes that each State's capacity to respond

      Page 70131

      and recover varies based on the circumstances of the disaster and the State's resources. FEMA intends to include the consideration of fiscal capacity data to better evaluate a State's ability to adequately respond to a disaster with or without supplemental Federal assistance. The GAO has suggested in multiple reports that FEMA should incorporate States' fiscal capacity into its considerations for recommendations on disaster declarations to the President. Though the GAO reports have focused on including fiscal capacity in FEMA's PA declaration factor criteria, FEMA believes that there is a need to assess a State's capacity to respond and recover on its own when determining whether a major disaster declaration that authorizes IA is warranted as well. Furthermore, the GAO supported the use of TTR as a measure of a State's fiscal capacity because it is a comprehensive estimate of the resources that could potentially be subject to State taxation.\25\ Therefore, FEMA is proposing to include fiscal capacity as an additional factor in its determination.

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      \25\ United States Government Accountability Office, FEDERAL DISASTER ASSISTANCE: Improved Criteria Needed to Assess a Jurisdiction's Capability to Respond and Recover on Its Own, GAO-12-

      838, September 2012, Page 31. Available at: http://www.gao.gov/assets/650/648162.pdf.

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      To ascertain a State's fiscal capacity to respond to a major disaster, FEMA intends to review data on a State's Total Taxable Resources (TTR). The U.S. Department of Treasury calculates the TTR of the State, which is used as a measure of a State's fiscal capacity.\26\ TTR is based on the GDP per State but makes adjustments for additional, potentially-taxable income flows like capital gains and commuter income. FEMA acknowledges that TTR does not capture a State's actual tax revenue or expenditures and cannot be viewed as a financial accounting of a State's budget. TTR is instead intended to measure all income flows a State can potentially tax.

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      \26\ A 2012 GAO report stated that other Federal departments and agencies have used TTR data to determine a jurisdiction's fiscal capacity and the extent to which a jurisdiction should be eligible for Federal assistance; specifically the Department of Health and Human Services' Substance Abuse and Mental Health Services Administration's block grant program and Community Mental Health Service.

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      Resource Availability. Relative to State services and planning after prior disasters, FEMA encourages States to continuously improve their own disaster assistance programs for their citizens. States should identify any new individual assistance programs as well as any improvements to existing individual assistance programs made as a result of previous disasters. FEMA intends to include this factor to encourage States to continuously evaluate and improve their disaster planning and relief programs based on lessons learned from previous disasters. On the other hand, States that continually fail to address limitations or shortfalls identified after previous events would be a consideration in FEMA's deliberation. Nonetheless, FEMA does not expect that the inclusion of this factor would affect the overall number of major disaster declarations authorizing IA as this factor would be considered with a number of other factors and would not, in isolation, determine whether a declaration is recommended.

   5. Impacts to Costs, Benefits, and Transfer Payments

      In the following section, FEMA discusses the proposed rule's quantified costs for States and the Federal government, qualitative benefits, and why there are no expected impacts to transfer payments.

      1. State Costs

         As stated previously, many of the factors listed in the proposed rule have previously been submitted or requested subsequent to a State request and thus are estimated to have no new costs. The two proposed additional factors that have not been typically provided or considered would impose a new cost. FEMA intends to obtain data related to fiscal capacity from publicly accessible databases and Web sites at no cost to States. Providing information on State services and planning after prior disasters would impose a new cost on States. In addition, FEMA assumes the proposed rule may have an initial implementation cost for States to familiarize themselves and understand the new factor data requirements.

         If a State is unable to provide information for a particular factor or factors, FEMA would evaluate and provide a recommendation on the State's need for Federal assistance based on the information submitted and data available from other sources, as appropriate. The only required elements of a State's major disaster declaration request appear at 44 CFR 206.36. FEMA's intent, through this proposed rule, is to clearly identify the considered data points that are previously captured under the ``other relevant information'' prong of the regulation to inform the States' formulation of their request. In some scenarios, certain pieces of information identified in the proposed rule may be inapplicable or unavailable. In addition, FEMA recognizes that the circumstances of a disaster may not allow a State to collect all of the information identified within the proposed rule. States would need to provide information that supports their request for a major disaster declaration authorizing IA, but would not have to address every data point in the proposed rule to be granted the request. For example, for a catastrophe of unusual severity and magnitude such that preliminary damage assessments are not necessary to determine the requirement for Federal assistance, States may submit an abbreviated request pursuant to 44 CFR 206.36(d), which need only contain limited information required by that provision. The proposed rule is identifying factors, which FEMA would consider in its review of a major disaster declaration request that includes IA when making recommendations to the President, but ultimately the amount of data provided by the State is voluntary.

         FEMA anticipates information on State services and planning after prior disasters would be addressed in a short summary in the Governor's request. FEMA program employees who work with declarations estimate that a State would spend an additional 30 minutes collecting and incorporating information on State services and planning after prior disasters into the State's declaration request. FEMA assumes this time would be used to write a paragraph or two on why the State lacks the resources to provide sufficient services to its citizens and any new or existing State individual assistance programs or improvements made to State individual assistance programs as a result of previous disasters. FEMA assumes that a State would be aware of their own service and program capabilities prior to considering whether a request for a major disaster declaration that authorizes IA is warranted. In addition, a State may build upon past requests in subsequent requests depending on whether their program efforts have been ongoing or have changed.\27\ FEMA previously estimated that States spend 33 hours on average to compile, write, and submit a request for a declaration.\28\ FEMA assumed the equivalent of a State Government Chief Executive, a senior

         Page 70132

         level government official familiar with State emergency assistance programs, would prepare the Request for Presidential Disaster Declaration Major Disaster or Emergency, FEMA Form 010-0-13. Per the U.S. Department of Labor Bureau of Labor Statistics, the average hourly wage rate for a State Government Chief Executive is $54.66 which FEMA multiplied by 1.4 to account for benefits.\29\ This results in a fully loaded State Government Chief Executive hourly wage rate of $76.52. Between January 2004 and December 2013, FEMA received 413 requests for a major disaster declaration that authorized IA. FEMA divided 413 by ten years to estimate that States would submit an average of 41 requests for major disaster declarations authorizing IA per year. FEMA multiplied 30 minutes (0.5 hours) by the fully loaded hourly wage rate of $76.52 and 41 submissions to get an annual cost of $1,569 (0.5 x $76.52 x 41 = $1,568.66).

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         \27\ FEMA recognizes there may be a level of repetition in a State's request, but FEMA would prefer to ensure it has up to date information, including recent efforts from previous disasters, for the White House and FEMA to consider.

         \28\ FEMA has provided the supporting statement document for the information collection, OMB Control Number 1660-0009, in the public rulemaking docket. The supporting statement dated February 25, 2013 was the latest supporting statement prior to this proposed regulation.

         \29\ U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment Statistics, May 2013 National Industry-

         Specific Occupational Employment and Wage Estimates, NAICS code 999200, State Government excluding schools and hospitals, and Standard Occupational Classification (SOC) code 11-1011 for Chief Executive. http://www.bls.gov/oes/2013/may/naics4_999200.htm.

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         As noted above, most of the information included in the proposed factors is information that was previously captured under the ``other relevant information'' prong of the regulation and has been considered, as appropriate, when evaluating requests for a major disaster declaration that authorized IA. However, FEMA at times has had to reach back to the State for additional information.\30\ By clearly identifying information considered in the proposed rule, FEMA anticipates that such delays in the declaration process would be diminished. With the changes in the proposed rule, the regulations would improve clarity regarding potentially relevant information. States would be encouraged to include the fulsome information in the original request, which could potentially eliminate follow-up correspondence and speed up the determination of a major disaster declaration request. Although FEMA recognizes that large scale disasters may not need as much detail or data to support a major disaster declaration request due to the extent of IA damage costs; other disasters may be more difficult to determine if a need for Federal disaster assistance exists without the State providing additional information identified in the proposed rule. Thus the proposed rule provides the State with the types of requested data that informs FEMA's recommendation and ultimately, the President's determination of a State's need for a major disaster declaration that authorizes IA.

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         \30\ Historically, FEMA has attempted to cure some of the lack of clarity by providing States with major disaster declaration request template letters, which provided a suggested organizational structure for States to follow when making their request for a major disaster declaration.

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         To estimate the time for States to understand changes made to the regulations, State governments would spend time reading the proposed and existing regulations. Based on a sample of FEMA employees who formerly worked for State governments, FEMA estimates States would spend 30 minutes (0.5 hours) to familiarize themselves and understand the new factor data requirements.\31\ FEMA assumes the equivalent of a State Government Chief Executive, a senior level government official familiar with State emergency assistance programs, would read the existing and new regulations to understand the changes. FEMA multiples the fully loaded hourly wage rate of a State Government Chief Executive, calculated above as $76.52, by 0.5 hours and 56 States, to calculate an increased State cost of $2,143 ($76.52 x 0.5 x 56 = $2,142.56). FEMA assumes State governments would read the regulation once in the first year it goes into effect and would subsequently refer to supplemental guidance materials, such as the Governor's request template, to complete requests.

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         \31\ To estimate the time for States to familiarize themselves and understand the new factor data requirements, FEMA surveyed its own employees who formerly worked for State governments. Thirteen employees were identified who worked for various States, representing multiple regions, State sizes, and a range in years of service in State government and FEMA. These employees were asked to read the proposed and existing regulations and answer questions to test their understanding of the changes. The employees were also provided a copy of excerpts of this regulatory preamble if they needed further information to answer the test. About 40 percent of the employees referred back to the preamble to answer the questions. It took an average of 17 minutes to read the existing and proposed regulatory text and 11 minutes to answer the questions, including referring back to the preamble. FEMA rounded 28 minutes (11minutes +17minutes) to 30 minutes and uses 0.5 hours to calculate the costs.

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         FEMA estimates total State costs in the first year to be $3,712. FEMA estimates State costs in subsequent years to be $1,569.

      2. Federal Costs

         FEMA anticipates the Federal government would incur minor additional costs by the rule because, as noted above, FEMA already considers most of these factors under the ``other relevant information'' prong of the regulation when reviewing major disaster declaration requests. In addition, FEMA has already begun to change the way it collects information for major disaster declaration recommendations that did not require regulatory action.

         In the past, FEMA would review pre-disaster data about a disaster location. This pre-disaster data provided FEMA information about the disaster location that helped to illustrate the population and area that was impacted by a disaster. The pre-disaster data came from Federal sources, such as the United States Census Bureau and the Bureau of Labor Statistics. Independent of the regulation, FEMA had begun a process to streamline how pre-disaster data is collected and disseminated as well as improving the efficiency and speed of the PDA process by using new technologies and processes to collect and transmit information faster.

         One of the areas where FEMA would incur costs is for the retrieval of fiscal capacity data from Treasury and BEA. To estimate the additional activity time, FEMA performed a dry run retrieval and storage of the relative fiscal capacity data. To retrieve, store, and update Treasury's TTR data (including all State data in a single retrieval), FEMA estimates it would take 10 to 15 minutes, and uses the average of this range, 12.5 minutes, for the purposes of this analysis. FEMA estimates it would take the equivalent amount of time for the BEA's GDP per State data, and uses 12.5 minutes as well. FEMA estimates it would take 15 to 30 minutes to retrieve BEA per capita personal income data and uses the average of 22.5 minutes. FEMA sums these three time burdens to calculate a total burden of 47.5 minutes and divides by 60 minutes, for an estimated increase burden of 0.79 hours x ((12.5+12.5+22.5)/60=0.7917).

         FEMA anticipates this data retrieval to take place once annually, and to be completed by a Federal employee in the DC area at the General Schedule 12, Step 1 level, at an hourly wage rate of $36.23.\32\ FEMA multiplies this wage rate by 1.4 to account for benefits, resulting in a fully loaded wage rate of $50.72. FEMA multiplies the time per year, 0.79 hours by the fully loaded wage rate of $50.72, to get an annual Federal cost increase of $40 (0.79 x

         Page 70133

         $50.72 = $40.07), and ten-year total Federal increase of $400.

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         \32\ The General Schedule (GS) 12 (Step 1) hourly wage of $36.23 is taken from the Office of Personnel Management; 2014 General Schedule (GS) salaries & wages tables; locality pay tables (Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA). Retrieved 7/30/14 from http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2014/general-schedule/.

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         The following table displays the ten year total costs (undiscounted, discounted at three percent, and discounted at seven percent) for the proposed rule.

         Table 2--Total Costs of the Proposed Rule

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         State costs

         Year State initial (providing FEMA costs Undiscounted Annual costs Annual costs

         review cost information) (retrieving data) annual costs discounted at 3% discounted at 7%

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   1. $2,143 $1,569 $40 $3,752 $3,643 $3,507

   2. ................. 1,569 40 1,609 1,517 1,405

   3. ................. 1,569 40 1,609 1,472 1,313

   4. ................. 1,569 40 1,609 1,430 1,227

   5. ................. 1,569 40 1,609 1,388 1,147

   6. ................. 1,569 40 1,609 1,348 1,072

   7. ................. 1,569 40 1,609 1,308 1,002

   8. ................. 1,569 40 1,609 1,270 936

   9. ................. 1,569 40 1,609 1,233 875

   10. ................. 1,569 40 1,609 1,197 818

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       Total............................. 2,143 15,690 400 18,233 15,806 13,302

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       3. Benefits

          Benefits of the proposed rule include clarifying FEMA's existing practices, reducing processing time for requests, and providing States with notice of the new factor information FEMA is proposing to consider as part of the IA declarations process. States have the ability to assess and determine what information supports a major declaration request. The proposed rule would identify factors considered in the IA declarations process, including many factors that FEMA previously considered under the ``other relevant information'' prong of the regulation, but are not currently specified in 44 CFR 206.48(b).

          In the past, FEMA may have at times had to follow up for additional information on major disaster declaration requests to better support FEMA's recommendation on a major disaster declaration authorizing IA. This regulation would improve clarity on the factors that FEMA considers when evaluating the need for a major disaster declaration authorizing IA. FEMA expects this to lessen or possibly eliminate the need to go back to the States for additional information.\33\

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          \33\ In making past determinations, FEMA has not tracked the length of time or the number of written or oral correspondence with the State to retrieve additional data. Therefore FEMA cannot quantify the potential savings from the clarifications provided in the proposed regulation.

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          The two newly identified factors would also provide additional context to a State's circumstances to help inform FEMA's recommendation. FEMA believes the inclusion of fiscal capacity would further inform and strengthen FEMA's recommendations to the President with regard to major disaster declarations that authorize IA. In addition, information considered may be available more quickly and provide a fuller context. Such measures may also be more objective compared to other perceptions of a State's capacity to respond. This would also provide notice to States of the new factor information FEMA would consider.

       4. Transfer Payments

          First, it is important to note that the ultimate determination regarding whether or not to grant a State's request for a major disaster declaration resides with the President. FEMA does not anticipate or intend for this proposed rule to affect the number of major disaster declarations authorizing IA granted each year. As FEMA has previously considered the majority of the proposed factors in past declaration requests for individual assistance and data used in the proposed new factors are correlated to past declaration recommendations, FEMA anticipates this proposed rule would not have an impact on transfer payments, which are payments from the Federal government to States and individuals.

          FEMA intends the proposed rule to identify factors that it would use when making recommendations to the President. FEMA already considers the majority of factors described in the proposed rule during previous deliberations on whether to recommend a major disaster declaration authorizing IA to the President. The only data items that FEMA has not considered in the past are the data on (1) State services and planning after prior disasters and (2) the fiscal capacity factor.

          State Services and Planning after Prior Disasters. As stated previously, FEMA does not expect that the inclusion of these data items would affect the overall number of major disaster declarations authorizing IA as this factor would be considered with a number of other factors and would not, in isolation, determine whether a declaration is recommended.

          Fiscal Capacity. Although FEMA is introducing a factor for fiscal capacity, analysis conducted in preparation of this proposed rule reveals that FEMA's recommendations and major disaster declarations by the President in the past have a correlation to the fiscal capacity of the requesting State. Historically, FEMA captured an aspect of fiscal capacity when evaluating the damage caused by each disaster in relation to the population of the affected State. States with the highest TTR also tend to have the highest population. As such, major disaster declarations authorizing IA have had a correlation to the fiscal capacity of the requesting State.

          FEMA conducted a review of 153 \34\ major disaster declaration requests that included IA that were submitted between January 2008 to July 2013 to determine if there would be any impact from using TTR in assessing a State's need for a major disaster declaration authorizing IA. Each State request included an estimate of the costs from the damages attributed to the disaster event. FEMA retrieved the TTR per State at the time of each request. For each request, FEMA divided the estimated cost of IA by the State TTR in millions. For example, if a State estimated $2,000,000 in IA costs and the State's TTR was $30,000,000,000, FEMA

          Page 70134

          divided $30,000,000,000 by $1,000,000 to get the State's TTR in millions which is $30,000. FEMA then divided $2,000,000 by $30,000 to get the ratio of ICC (IA Cost to Capacity) of 66.7.

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          \34\ For the analysis on TTR, FEMA excluded disaster declaration requests that did not include a request for IA. FEMA also excluded duplicate requests, U.S. territories' requests (because there is no TTR data available), requests without summaries of the PDA data or with insufficient data, and requests that involved an expedited decision.

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          Based on the ICC calculation for all 153 State requests, there is a general trend that shows the greater the ICC ratio for a major disaster declaration request that included IA, especially above 25, the more likely the request would be granted. Additionally, the lower the ICC ratio for a major disaster declaration request that included IA, especially below 10, the more likely the request was denied. The following table displays the total number of requests and the total granted major disaster declarations based on ICC ratio size as well as the percentage of granted major disaster declaration requests within the respective ICC group.

          Table 3--Number of IA Requests and Granted IA Requests by ICC Ratio

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          Number of Percentage of Percentage of

          Number of approved approved approved

          ICC Ratio requests (2008- requests (2008- requests (2008- requests in

          2013) 2013) 2013) range (2008-2013)

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          >25................................. 43 41 57.7% 95%

          10-25............................... 53 26 36.6% 49%