[Federal Register Volume 78, Number 46 (Friday, March 8, 2013)]
[Notices]
[Pages 15026-15030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05391]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
[Docket ID FEMA-2013-0006]
Solicitation for Comments Regarding Current Procedures To Request
Emergency and Major Disaster Declarations
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Notice.
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SUMMARY: On Tuesday, January 29, 2013, President Obama signed the Sandy
Recovery Improvement Act of 2013, which includes a provision amending
the Robert T. Stafford Disaster Relief and Emergency Assistance Act to
provide federally recognized Indian tribal governments the option to
make a request directly to the President for a Federal emergency or
major disaster declaration, or to seek assistance, as they do
presently, under a declaration for a State. In support of preliminary
implementation of this provision, the Federal Emergency Management
Agency (FEMA) is engaging in a comprehensive consultation effort with
federally recognized Indian tribal governments. To initiate that
consultation, FEMA is soliciting comments regarding FEMA procedures for
declaration requests from Indian tribal governments.
DATES: Comments must be received by April 22, 2013.
ADDRESSES: Comments must be identified by docket ID FEMA-2013-0006 and
may be submitted by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Regulatory Affairs Division, Office of Chief Counsel, Federal
Emergency Management Agency, Room 835, 500 C Street SW., Washington, DC
20472-3100.
FOR FURTHER INFORMATION CONTACT: Jessica Stewart, Federal Emergency
Management Agency, 500 C Street SW., Washington, DC 20472, 202-646-
3888.
SUPPLEMENTARY INFORMATION
I. Public Participation
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 eRulemaking 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, which can be viewed by clicking on the ``Privacy Notice'' link
in the footer of http://www.regulations.gov.
You may submit your comments and material by the methods specified
in the ADDRESSES section of this notice. Please submit your comments
and any supporting material by only one means to avoid the receipt and
review of duplicate submissions.
Docket: A copy of this notice is available in docket ID FEMA-2013-
0006. 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-
2013-0006'' in the ``By Docket ID'' box, then select ``FEMA'' under
``By Agency,'' and then click ``Search.'' Submitted comments may also
be inspected at FEMA, Office of Chief Counsel, Regulatory Affairs
Division, 500 C Street SW., Washington, DC 20472-3100.
II. Background
The Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act) authorizes the President to make certain Federal
assistance available to support State, tribal, and local efforts to
respond to and recover from a disaster. The President makes disaster
assistance available after he declares that an emergency or major
disaster has occurred and that Federal assistance is needed to
supplement State and local government resources. In the past, the
Stafford Act allowed only the Governor of a State to make a request for
a declaration by the President for an emergency or major disaster.
On Tuesday, January 29, 2013, President Obama signed the Sandy
Recovery Improvement Act of 2013, that included a provision amending
the Stafford Act to provide Federally recognized Indian tribal
governments the option to choose whether to make a request directly to
the President for a Federal emergency or major disaster declaration, or
to seek assistance, as they do presently, under a declaration for a
State.
Specifically, the amendment permits the ``Chief Executive'' of an
``affected Indian tribal government'' to submit a request for a
declaration to the President that a major disaster or emergency exists
consistent with the requirements listed in Stafford Act section 401
(major disasters) and 501 (emergencies). The amendment also stipulates
that an Indian tribal government may be eligible to receive assistance
through a declaration made by the President at the request of a State,
so long as the Indian tribal government does not receive a separate
declaration from the President for the same incident.
FEMA plans to establish a pilot program for managing requests from
Indian tribal governments; during development of this pilot program,
FEMA will engage in a comprehensive consultation effort with Indian
tribal governments.
III. Current Requirements and Processes for State Declaration Requests
Below you will find an explanation of the current regulatory
requirements (located in Title 44 of the Code of Federal Regulations)
for a Governor's request for an emergency or major disaster declaration
and the factors FEMA uses to make a recommendation to the President
about whether supplemental Federal assistance is needed. These
regulations are currently framed with respect to States.
As an initial step in consultation with Indian tribal governments
and outreach to other stakeholders, FEMA asks Indian tribal governments
for their thoughts and comments on how these requirements and factors
may or may not be appropriate as applied to requests from Indian tribal
governments during the pilot program. The input provided will inform
the development of the pilot program to process declaration requests
from Indian tribal governments. FEMA welcomes comments on any or all of
the topics addressed in this Notice. Comments are also welcomed on any
other issues that may not be covered in the below topics.
Types of Declarations and Assistance
Stafford Act assistance is intended to supplement State and local
resources. States must establish in their requests that the event is of
such severity and magnitude that effective response is beyond the
capabilities of the State and the affected local governments. (42
U.S.C. 5121(2))
Emergency Declarations: Emergency Declarations are to supplement
efforts in providing short-term emergency services, such as the
protection of lives,
[[Page 15027]]
property, public health, and safety, or to lessen or avert the threat
of a catastrophe. (42 U.S.C. 5191)
Major Disaster Declaration: A major disaster declaration may
provide a wide range of Federal assistance programs for individuals and
public infrastructure, including funds for both emergency and permanent
work. (42 U.S.C. 5170)
Types of FEMA disaster assistance that may be made available by
major disaster declarations:
Individual Assistance--Assistance to individuals and
households. (More information can be found at: https://www.fema.gov/individual-assistance-program-tools) (42 U.S.C. 5174);
Public Assistance--Assistance to State, Indian tribal and
local governments and certain private nonprofit organizations for
emergency work and the repair or replacement of disaster-damaged
facilities. (More information can be found at: https://www.fema.gov/public-assistance-local-state-tribal-and-non-profit) (42 U.S.C. 5170b
and 5172); and
Hazard Mitigation Assistance--Assistance to State and
local governments and certain private nonprofit organizations for
actions taken to prevent or reduce long term risk to life and property
from natural hazards. (More information can be found at https://www.fema.gov/hazard-mitigation-assistance) (42 U.S.C. 5170c).
Preliminary Damage Assessments
In support of requests for a major disaster declaration,
Preliminary Damage Assessments (PDAs) are conducted to estimate the
extent of the disaster and its impact on individuals and public
facilities. A PDA is not required for an emergency declaration request.
The PDA team may be comprised of personnel from FEMA, the State's
emergency management agency, Territorial, Indian tribal and affected
local government officials and other Federal agencies (e.g., the U.S.
Small Business Administration). The team's work begins with assessing
the emergency costs incurred by the units of government, the uninsured
damage to public facilities, and the impacts on individuals' lives,
homes and businesses. This information is included in the Governor's
request to the President.
Requirements for Submitting Declaration Requests
Governors submit declaration requests to the President through the
appropriate FEMA Regional Administrator. The Stafford Act requires a
Governor of an affected State to base his/her declaration request on
the finding that the disaster is of such severity and magnitude that
effective response is beyond the capabilities of the State and the
affected local governments and that Federal assistance is necessary.
The Governor must also take appropriate response action under State
law, direct execution of the State's emergency plan, have or will
commit resources to alleviate the results for the disaster, and certify
that the State will comply with all cost sharing requirements.
In order for FEMA to make Public Assistance, Individual Assistance,
and Hazard Mitigation available to eligible areas, Governors must have
the following agreements and/or plans:
--In order to receive Public Assistance, Governors must have an
approved Administrative Plan. (44 CFR 206.207).
--In order to receive Public Assistance Categories C-G and Hazard
Mitigation Grant Program assistance, States must have an approved or
approvable State mitigation plan. (44 CFR 201.4(a)).
--In order to receive Other Needs Assistance under the Individual and
Household Program, Governors must choose an administrator to provide
the assistance and, depending on the choice, have an approved Other
Needs Assistance Administrative Plan. (44 CFR 206.120).
[cir] Within 72 hours of a disaster declaration, a State may
submit modifications of the Administrative Plan. (44 CFR 206.120(e)).
--States and local governments must comply with the ``Uniform
Requirements for Grants and Cooperative Agreements to State and Local
Governments.'' (44 CFR Part 13).
FEMA is soliciting comments on whether there are circumstances that
may prevent a Chief Executive of an Indian tribal government from
complying with these current requirements and processes for declaration
requests during the pilot program.
IV. Other Needs Assistance Administrative Plan Requirement for
Individuals and Households Program
The Federal Assistance to Individuals and Households Program (IHP)
(44 CFR 206.110-206.120) provides financial assistance, such as funding
to repair damaged homes or replacement of household items, and if
necessary, direct assistance to eligible individuals and households.
IHP is intended to help disaster-impacted individuals and households
who have uninsured or under-insured housing and other needs and are
unable to meet such expenses or needs through other means.
Housing Assistance under IHP is administered directly by FEMA.
However, the delivery of Other Needs Assistance (ONA) under IHP is
contingent upon the State choosing an ONA Administrative Option. The
State may either request FEMA to administer ONA or they may request a
grant so they can administer ONA. Currently, most States opt to have
FEMA administer ONA instead of choosing to administer it themselves. In
order for eligible disaster survivors to receive assistance for
clothing, personal property, transportation and other non-housing
related needs, States must select an option for administering ONA.
FEMA is soliciting comments on whether there are circumstances that
may prevent a Chief Executive of an Indian tribal government from
selecting an ONA Administrative Option during the pilot program. In
addition, FEMA welcomes comments on the ability of an Indian tribal
government to administer ONA on its own.
V. Mitigation Plan Requirement
The Stafford Act requires Indian tribal governments to have a FEMA-
approved mitigation plan as a condition of receipt of hazard mitigation
assistance (42 U.S.C. 5165). Assistance programs impacted include
Public Assistance Categories C-G and the Hazard Mitigation Grant
Program. The State or Tribal Mitigation Plan outlines processes for
identifying the natural hazards, risks, and vulnerabilities of the
area, as well as actions to reduce losses from future disasters (44 CFR
201.7).
For States that do not have a FEMA-approved State Mitigation Plan,
FEMA allows 30 days from the date of the declaration for the State to
submit to FEMA an approved or approvable State Mitigation Plan.
FEMA welcomes comments on whether 30 days is an appropriate amount
of time for Indian tribal governments to submit an approved or
approvable Tribal Mitigation Plan during the pilot program. FEMA also
welcomes comments on whether there are circumstances that may prevent
an Indian tribal government from submitting a Tribal Mitigation Plan,
or a request for an extension within this time.
VI. Timelines To Submit Declaration Requests
FEMA's regulations require a Governor to submit a request for an
emergency or major disaster declaration within 30 days of the date of
the incident. FEMA's regulations allow
[[Page 15028]]
Governors to request additional time to submit emergency and major
disaster declaration requests. The extension request must be submitted
within 30 days after the incident and must include a reason for the
additional time needed.
FEMA is soliciting comments to determine whether 30 days is an
appropriate amount of time for the Chief Executive of an Indian tribal
government to submit a request or ask for an extension during the pilot
program. FEMA welcomes comments on whether there are circumstances that
may prevent the Chief Executive of an Indian tribal government from
submitting such a request, or a request for an extension within this
time.
VII. Public Assistance
The Stafford Act recognizes that primary responsibility for
emergency management is at the local level; thus, Stafford Act
assistance is intended to be available only as a supplement to other
governmental and non-governmental resources. The Act instructs
Governors to base their declaration requests on the finding that the
disaster is of such severity and magnitude that effective response is
beyond the capabilities of the State and the affected local governments
and that Federal assistance is necessary. The Stafford Act is not
intended to provide assistance for every event that impacts a State or
county, so FEMA established evaluation factors based on this principle.
When Governors request that the President declare a major disaster
which authorizes Public Assistance, FEMA uses the following criteria to
make a recommendation to the President whether assistance is warranted.
Estimated cost of the assistance.
Localized impacts.
Insurance coverage in force.
Hazard Mitigation.
Recent multiple disasters.
Programs of other Federal assistance.
Estimated Cost of the Assistance
For State requests, FEMA evaluates the estimated cost of Federal
and non-Federal public assistance against the statewide population, to
give some measure of the per capita impact within the State. This
provides a sense of proportional impact of on the population of the
State. We use a figure of $1.37 per capita (FY13) as an indicator that
the disaster is of such size that might warrant Federal assistance
(adjusted annually based on the Consumer Price Index).
FEMA is soliciting comments on whether the estimated cost of
assistance is an appropriate factor to evaluate Indian tribal
government requests for Public Assistance during the pilot program.
FEMA welcomes comments on whether requests should be evaluated based on
per capita, and if not, how Indian tribal government population size
should be considered. FEMA also welcomes comments on what
considerations FEMA should evaluate in determining the appropriate
damage indicators for Indian tribal government requests.
FEMA has also established a minimum of $1 million in public
assistance estimated damages per disaster, based on the belief that we
can reasonably expect even the least populated States to cover this
level of public assistance damage.
FEMA is soliciting comments on whether an Indian tribal government
can reasonably be expected to cover that level of public assistance
damage during the pilot program. FEMA welcomes comments on whether
there should be a similar, if lower, minimum threshold applied to
Indian tribal government requests. FEMA also welcomes comments on
whether such a minimum damage amount should depend on the population of
the requesting Indian tribal government, and/or on other information.
Localized Impacts
For State requests, FEMA evaluates the impact of the disaster at
the county and local government level, as well as the impact on
American Indian/Alaska Native (AI/AN) Indian tribal government levels.
This is because, at times, there are extraordinary concentrations of
damages that might warrant Federal assistance, even if the statewide
per capita is not met. This is particularly true in situations where
critical facilities are involved, or where localized per capita impacts
might be extremely high.
Insurance Coverage in Force
For State requests, FEMA considers the amount of insurance coverage
that is in force, or should have been in force, as required by law and
regulation at the time of the disaster.
Hazard Mitigation
For State requests, FEMA also considers the extent to which State
and local government measures contributed to the reduction of disaster
damages for the disaster under consideration.
Recent Multiple Disasters
For State requests, FEMA evaluates the 12-month disaster history to
better understand the overall impact on the State or locality. FEMA
considers declarations under the Stafford Act, as well as declarations
made by the Governor, and the extent to which the State has spent its
own funds on those disasters.
Programs of Other Federal Assistance
For State requests, FEMA also considers the programs of other
Federal agencies because at times, their programs of assistance might
more appropriately meet the needs created by the disaster.
FEMA is soliciting comments on whether these factors (localized
impacts, insurance coverage in force, hazard mitigation, recent
multiple disasters, and programs of other Federal assistance) are
appropriate for the evaluation of Indian tribal government requests for
Public Assistance during the pilot program. FEMA also welcomes comments
on whether there are additional factors that may be appropriate for
FEMA to consider when evaluating the level of impact and tribal
capability to respond to and recover from an event for Public
Assistance requests from Indian tribal governments.
VIII. Individual Assistance
When the Governor of a State requests that the President declare a
major disaster that authorizes Individual Assistance, FEMA uses the
following criteria to determine whether Federal assistance is needed.
Concentration of damages.
Trauma.
Special populations.
Voluntary agency assistance.
Insurance.
Concentration of Damages
For State requests, FEMA evaluates the concentrations of damages to
individuals. High concentrations of damages generally indicate a
greater need for Federal assistance than widespread and scattered
damages throughout a State.
Trauma
FEMA considers the degree of trauma to a State and to communities.
Some of the conditions that might cause trauma are:
Large numbers of injuries or deaths;
Large scale disruption of normal community functions and
services; and
Emergency needs such as extended or widespread loss of
power or water.
Special Populations
FEMA considers whether special populations, such as low-income, the
elderly, or the unemployed are affected, and whether they may have a
greater need for assistance. FEMA also
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considers the effect on American Indian and Alaskan Native tribal
populations in the event that there are any unique needs for people in
these governmental entities.
Voluntary Agency Assistance
FEMA considers the extent to which voluntary agencies and State or
local programs meet the needs of the disaster survivors.
Insurance
FEMA considers the amount of insurance coverage because, by law,
Federal disaster assistance cannot duplicate insurance coverage.
FEMA is soliciting comments on whether these Individual Assistance
factors are appropriate for FEMA to consider when evaluating an Indian
tribal government request for Individual Assistance during the pilot
program. FEMA also welcomes comments on whether there are additional
factors that may be appropriate for FEMA to consider when evaluating
Indian tribal government requests for Individual Assistance.
IX. Designating Areas Eligible for Assistance, Definition of Tribal
Lands
After the President declares that an emergency or major disaster
exists in a State, areas within the State are designated as eligible
for assistance. FEMA's regulatory definition of ``designated area''
eligible for assistance under each program (Public Assistance,
Individual Assistance, and the Hazard Mitigation Grant Program) is
``any emergency or major disaster-affected portion of a State which has
been determined eligible for Federal assistance.'' (44 CFR 206.2(a)(4))
In practice, FEMA typically identifies counties, parishes, independent
cities, and Indian tribal governments as ``designated areas'' eligible
for assistance.
FEMA is soliciting comments on how FEMA should designate Tribal
areas eligible for assistance for any or each of the FEMA assistance
programs (Public Assistance, Individual Assistance, and the Hazard
Mitigation Grant Program) and what FEMA should use as the definition of
Tribal lands during the pilot program.
X. Appeals
When a request for an emergency or major disaster declaration is
denied, the Governor may appeal the decision. The appeal must be
submitted within 30 days of the date of the letter denying the request.
The Governor can make only one appeal. The Governor should include in
the appeal additional information which supports his/her request for
supplemental Federal assistance.
When certain areas that were requested by the Governor are not
designated, the Governor or Governor's Authorized Representative may
appeal the decision. The appeal must be submitted within 30 days of the
date of the letter denying the request. The Governor has only one
appeal. The Governor or the Governor's Authorized Representative should
include in the appeal additional information which supports his/her
request.
When types of assistance that are requested by the Governor are not
authorized, the Governor may appeal the decision. The appeal must be
submitted within 30 days of the date of the letter denying the request.
The Governor has only one appeal. The Governor should include in the
appeal additional information which supports his/her request.
FEMA is soliciting comments on whether this same appeal process
would be appropriate for Tribal requests during the pilot program.
XI. Cost Share Adjustments
The Stafford Act directs FEMA to pay ``not less than'' 75-percent
of the eligible costs for essential assistance (Stafford Act Section
403, 42 U.S.C. 5170b), repair, restoration, and replacement of damaged
facilities (Stafford Act Section 406, 42 U.S.C. 5172), and debris
removal (Stafford Act Section 407, 42 U.S.C. 5173). FEMA's regulations
outline the criteria FEMA uses to recommend to the President an
adjustment to the Federal cost share.
FEMA will recommend the President adjust the Federal cost share
from 75-percent to not more than 90 percent when actual Federal
obligations under the Stafford Act meet or exceed $133 (2013) per
capita of State population. When recommending a cost share adjustment
to the President, FEMA also considers the impact of major disaster
declarations in the State during the previous 12-months.
If warranted by the needs of the disaster, FEMA may recommend up to
100 percent Federal funding for emergency work under section 403 of the
Stafford Act (essential assistance) and section 407 of the Stafford Act
(debris removal), including direct Federal assistance, for a limited
time in the initial days of the disaster irrespective of the per capita
impact.
FEMA is soliciting comments on whether the per capita threshold
used for States would be appropriate for evaluating whether to
recommend a cost share adjustment for Tribal declarations during the
pilot program. FEMA also welcomes comments on what other factors may be
appropriate for FEMA to consider when evaluating potential cost share
adjustments for Tribal declarations.
XII. Notification of State and Tribes
Once the President has made a declaration determination (e.g.,
emergency, major disaster, denial), the Regional Administrator will
notify the Governor as well as other Federal agencies and other
interested parties.
FEMA is soliciting comments on how FEMA can ensure that all
interested parties, including the Governors of affected States, the
Chief Executive of affected Indian tribal governments, and other
Federal agencies are properly notified and informed regarding
declaration requests and determinations during the pilot program.
XIII. Disaster Unemployment Assistance
Disaster Unemployment Assistance (DUA) (44 CFR 206.141 and 20 CFR
625) 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 (UI).
FEMA has delegated to the Secretary of Labor the responsibility of
administering the DUA program and payment of DUA benefit assistance.
Under the current program regulations, applicants are required to
first apply and exhaust UI through the State workforce agency. Levels
of UI are based on State formulas, which may be different for each
State.
FEMA is soliciting comments on an Indian tribal government's
ability to administer DUA and the use of State workforce agency to
apply for regular UI in the absence of a tribal equivalent of a
workforce agency during the pilot program.
XIV. Disaster Legal Services
Disaster Legal Services (DLS) (44 CFR 206.164) 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. These services are typically provided to
survivors through an agreement with the Young Lawyers Division of the
American Bar Association.
FEMA is soliciting comments on the current access to legal services
during disasters, if Indian tribal governments have a relationship with
the Young Lawyers Division of the American Bar Association, and/or
restrictions on who
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can provide legal advice to tribal members during the pilot program.
Authority: Pub. L. 113-2.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2013-05391 Filed 3-7-13; 8:45 am]
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