Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Proposed Rules 80719 

1Under section 401 of the Robert T. Stafford 

Disaster Relief and Emergency Assistance Act 

(Stafford Act) (42 U.S.C. 5170), the President may 

declare that a major disaster exists after finding, 

upon request by a State governor, that such disaster 

is beyond the capabilities of the State and affected 

local governments, and that Federal assistance is 

needed. FEMA receives the governor’s request and 

makes a recommendation to the President whether 

such a declaration is warranted. See 44 CFR 206.37. 

2See 44 CFR 206.48(a). Other factors include: 

Insurance coverage in force, hazard mitigation, and 

other Federal assistance programs. Id. 

3At the time of drafting this proposed rule, the 

indicator was $1.50 in fiscal year 2019. See FEMA, 

Notice of Adjustment of Statewide per Capita 

Impact Indicator, 83 FR 53279 (Oct. 22, 2018). 

4Sec. 1232 of Public Law 115–254, 132 Stat. 3460 

(Oct. 5, 2018). However, as discussed below, FEMA 

does not propose to substantively amend 44 CFR 

206.48(a)(2) because that factor is already 

sufficiently flexible to address the requirements of 

section 1232 of the DRRA. 

5Sec. 1239 of Public Law 115–254, 132 Stat. 3466 

(Oct. 5, 2018). 

6April 1986 CPI–U was 108.6 and January 1999 

CPI–U was 164.3. (164.3¥108.6)/108.6 = 51.29%. 

See Bureau of Labor Statistics, U.S. Department of 

Labor, ‘‘Consumer Price Index, Archived Consumer 

Price Index Supplemental Files’’: Historical CPI–U, 

November 2019, (available for download at https:// 

Continued 

raised. The comment period is extended 

until February 12, 2021. 

Carolyn Hoskinson, 

Director, Office of Resource Conservation and 

Recovery. 

[FR Doc. 2020–27360 Filed 12–11–20; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 206 

[Docket ID FEMA–2020–0038] 

RIN 1660–AA99 

Cost of Assistance Estimates in the 

Disaster Declaration Process for the 

Public Assistance Program 

AGENCY: Federal Emergency 

Management Agency, Department of 

Homeland Security (DHS). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Emergency 

Management Agency (FEMA) is 

proposing a rule to substantively revise 

the ‘‘Estimated cost of the assistance’’ 

disaster declaration factor that FEMA 

uses to review a Governor’s request for 

a major disaster under the Public 

Assistance Program. FEMA proposes 

revisions to this factor to more 

accurately assess the disaster response 

capabilities of the 50 States, the District 

of Columbia, and the U.S. territories 

(States), and to respond to the direction 

of Congress in the Disaster Recovery 

Reform Act of 2018, which requires 

FEMA to review its disaster declaration 

factors and update them via rulemaking, 

as appropriate. 

DATES: All comments must be submitted 

by February 12, 2021. 

ADDRESSES: You may submit comments 

on this proposed rule, identified by 

Docket ID FEMA–2020–0038, by the 

following method: 

Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments on the proposed 

information collections included in this 

proposed rule should be submitted both 

to FEMA, as indicated above, and to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget. Comments should be identified 

by the appropriate OMB Control 

Number(s), addressed to the Desk 

Officer for the Department of Homeland 

Security, Federal Emergency 

Management Agency, and sent via 

electronic mail to dhsdeskofficer@

omb.eop.gov. 

FOR FURTHER INFORMATION CONTACT: Tod 

Wells, Deputy Director of Public 

Assistance, Federal Emergency 

Management Agency, 500 C Street SW, 

Washington, DC 20472, 202–646–3936, 

fema-recovery-pa-policy@fema.dhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials. We 

will consider all comments and material 

received during the comment period. 

If you submit a comment, identify the 

agency name and the docket ID for this 

rulemaking, indicate the specific section 

of this document to which each 

comment applies, and give the reason 

for each comment. You may submit 

your comments and material by 

electronic means, mail, or delivery to 

the address under the ADDRESSES

section. Please submit your comments 

and material by only one means. 

Regardless of the method used for 

submitting comments or material, all 

submissions will be posted, without 

change, to the Federal e-Rulemaking 

Portal at 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 and Security Notice that is 

available via a link on the homepage of 

http://www.regulations.gov. 

Viewing comments and documents: 

For access to the docket to read 

supporting documents and comments 

received, go to the Federal eRulemaking Portal at http://

www.regulations.gov. Background 

documents and submitted comments 

may also be inspected at FEMA, Office 

of Chief Counsel, 500 C Street SW, 

Washington, DC 20472–3100. 

II. Executive Summary 

Pursuant to 44 CFR 206.48(a), FEMA 

considers several factors when 

determining whether to recommend that 

the President declare a major disaster 

authorizing the Public Assistance (PA) 

program.1 FEMA proposes to amend the 

factor in 44 CFR 206.48(a)(1) for 

‘‘estimated cost of the assistance,’’ to 

raise the per capita indicator and the 

minimum threshold.2

Since 1986, FEMA has evaluated the 

estimated cost of Federal and nonFederal public assistance against the 

statewide population and used a per 

capita dollar amount (set at $1 in 1986) 

as an indicator that a disaster may 

warrant Federal assistance. The per 

capita indicator remained at $1 until 

1999, when the Agency began adjusting 

the indicator for inflation in 1999 and 

annually thereafter.3 Also in 1999, 

FEMA established a $1 million 

minimum threshold, meaning it would 

not recommend that the President 

authorize the PA program unless there 

was at least $1 million in damages 

resulting from the disaster and within 

the proposed area for Public Assistance. 

At the time, FEMA believed $1 million 

was a level of damage from which even 

the least populous States could recover 

with their own resources. FEMA has 

never increased the $1 million 

threshold. Additionally, FEMA also 

considers impacts at the local level and 

recent disasters in the 12 months prior 

to a declaration request to evaluate the 

impact to the State or locality. 

In the Disaster Recovery Reform Act 

of 2018 (DRRA), Congress directed 

FEMA to give greater consideration to 

the recent multiple disasters and 

localized impacts factors when 

evaluating a request for a major 

disaster.4 Congress also directed FEMA 

to generally review the factors it 

considers when considering a request 

for a major disaster, specifically the 

estimated cost of assistance factor, and 

to update the factors through 

rulemaking, as appropriate.5

The lack of increases to the per capita 

indicator from 1986 to 1999 has 

undercut the value of this factor as an 

indicator of State capacity given the 51 

percent reduction in purchasing power 

during that time.6 In addition, a State 


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www.bls.gov/cpi/tables/supplemental-files/ 

home.htm). 

7See Government Accountability Office (GAO), 

Federal Disaster Assistance: Improved Criteria 

Needed to Assess Eligibility and a Jurisdiction’s 

Capability to Respond and Recover On Its Own, 

GAO–12–838 (2012); Department of Homeland 

Security (DHS), Office of Inspector General (OIG), 

Opportunities to Improve FEMA’s Public 

Assistance Preliminary Damage Assessment 

Process, OIG–12–79 (2012). 

8See section 401 of the Stafford Act (42 U.S.C. 

5170). 

9See FEMA, Tribal Declarations Pilot Guidance, 

available at: https://www.fema.gov/tribaldeclarations-pilot-guidance. Notice of availability 

published at 82 FR 3016 (Jan. 10, 2017). 

10 Disaster Relief Act of 1974, Public Law 93–288 

(1974). 

11Robert T. Stafford Disaster Relief and 

Emergency Assistance Act, Public Law 100–707 

(1988); Public Law 93–288 (1974), as amended; 42 

U.S.C. 5121 et seq. 

12See 42 U.S.C. 5172. 

13See 44 CFR 206.224. 

14See 44 CFR 206.225. 

15See 44 CFR 206.226. 

16See 42 U.S.C. 5170b, 5192; see also 44 CFR 

206.38 and 206.40. 

17 42 U.S.C. 5170 & 5191. The Chief Executive of 

an Indian Tribal government may also request a 

major disaster declaration from the President under 

the Tribal Declarations Pilot Guidance. FEMA, 

Tribal Declarations Pilot Guidance, available at: 

https://www.fema.gov/tribal-declarations-pilotguidance. Notice of availability published at 82 FR 

3016 (Jan. 10, 2017). The factors FEMA considers 

when reviewing a request submitted under the 

Tribal Declarations Pilot Guidance are not a part of 

the factors FEMA considers under 44 CFR 206.48(a) 

and are outside the scope of this proposed 

rulemaking. 

18See 44 CFR 206.37(c). 

19See 44 CFR 206.48(a). 

20 Id. at § 206.48(a)(1). 

21 Id. at § 206.48(a)(2). 

fiscal capacity factor pegged to $1 per 

person in 1986 does not capture more 

sophisticated measurements of fiscal 

capacity available through consideration 

of a State’s total taxable resources. 

Accordingly, the current per capita 

indicator and minimum threshold do 

not provide an accurate measure of 

States’ capabilities to respond to 

disasters. 

With respect to the minimum 

threshold, while FEMA determined in 

1999 that every State could handle at 

least $1 million in damages with their 

own resources, that figure has also not 

increased with inflation or rising State 

budgets and expenditures.7 As a result, 

FEMA may recommend that the 

President declare major disaster 

declarations for incidents that, with 

more accurate assessment, would be 

found to be well within a State’s 

financial capabilities to respond to on 

its own. FEMA proposes to adjust these 

factors so that it may more closely 

adhere to the law which authorizes 

Federal disaster assistance only when 

an event ‘‘is beyond the capabilities’’ of 

the State and affected local 

governments.8

FEMA proposes to increase the per 

capita indicator to account for increases 

in inflation from 1986 to 1999, and to 

adjust the individual States’ indicators 

by their total taxable resources (TTR). 

These changes will allow FEMA to more 

accurately gauge a State’s fiscal capacity 

by accounting for taxable resources 

other than the State’s population, such 

as business income, undistributed 

corporate profits, and out-of-state 

residents. FEMA also proposes to 

increase the minimum threshold by 

accounting for inflation from 1999 to 

2019, and annually thereafter. 

FEMA also proposes to use the U.S. 

Census Bureau’s annual population 

estimates produced under the 

Population Estimates Program (PEP) 

instead of the decennial census 

population data produced every 10 

years, which FEMA currently uses to 

calculate each State’s Cost of Assistance 

(COA) Indicator. By increasing the per 

capita indicator and the minimum 

threshold, and using more current 

population data, FEMA’s 

recommendation to the President will 

be a better informed and more accurate 

assessment of whether an incident 

exceeds State capabilities. The resulting 

reduction in disaster declarations for 

smaller incidents will allow FEMA to 

better focus its efforts and resources on 

larger disasters without the 

complications of reallocating resources 

from multiple smaller-scale 

commitments. Collectively, these 

changes would provide a better 

distribution of responsibilities between 

the States and the Federal Government, 

and will incentivize States to invest 

more in response, recovery, and 

mitigation capabilities, and lead to a 

more resilient and prepared Nation. 

With respect to the recent multiple 

disasters and localized impacts factors, 

FEMA proposes not to substantively 

amend 44 CFR 206.48(a)(2) and (5). As 

is discussed below, these factors are 

already sufficiently flexible to address 

the requirements of section 1232 of the 

DRRA. FEMA also does not propose at 

this time to substantively amend the 

other declaration factors at 44 CFR 

206.48(a)(3) (‘‘Insurance coverage in 

force’’), (4) (‘‘Hazard mitigation’’), and 

(6) (‘‘Programs of other Federal 

assistance’’) because they already 

provide adequate consideration of 

important information for FEMA’s 

assessment of a State’s capabilities to 

respond to an event, while also 

providing sufficient flexibility for FEMA 

to account for a variety of circumstances 

across the States. 

Importantly, this proposed rule will 

not affect FEMA’s recommendations on 

direct requests for a major disaster 

declaration received from Tribal 

governments. For direct requests from 

Tribal governments, FEMA relies on the 

Tribal Declarations Pilot Guidance and 

criteria in that guidance instead of 44 

CFR 206.48.9

FEMA also proposes minor technical 

and corresponding grammatical changes 

to 44 CFR 206.48 to ensure consistent 

language between the Public Assistance 

declaration factors in 44 CFR 206.48(a) 

and the Individual Assistance factors in 

44 CFR 206.48(b). 

III. Background 

The Disaster Relief Act of 1974,10

which was amended and renamed the 

Robert T. Stafford Disaster Relief and 

Emergency Assistance Act (Stafford Act) 

in 1988,11 formally established the 

foundation of the current disaster 

assistance system. Generally, FEMA 

coordinates the Federal Government’s 

response to major disasters and provides 

various forms of financial and direct 

assistance. One of the primary types of 

financial assistance FEMA provides is 

through the PA program.12 FEMA 

provides financial assistance to States, 

Tribes, Territories, and local 

governments and certain private nonprofit entities for debris removal,13

emergency protective measures,14 and 

the repair, restoration, and replacement 

of infrastructure damaged or destroyed 

by a disaster event.15 Repair and 

replacement assistance, known as 

‘‘permanent work,’’ helps jurisdictions 

to repair or replace a wide variety of 

infrastructure including buildings, 

roads, bridges, and sewer and water 

systems. 

Before an affected jurisdiction can 

receive funding through the PA 

program, the President of the United 

States must authorize it through a 

declaration of a major disaster or 

emergency.16 To obtain a declaration, 

the Governor must make a request 

through FEMA.17 Upon receipt, FEMA 

is responsible for evaluating the 

Governor’s request and providing a 

recommendation to the President 

regarding its disposition.18

When considering a jurisdiction’s 

request for a major disaster declaration 

authorizing the PA program, FEMA 

considers all relevant information 

including, but not limited to, six 

specific factors.19 These specific factors 

are: 

1. Estimated cost of the assistance; 20

2. localized impacts; 21


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22 Id. at § 206.48(a)(3). 

23 Id. at § 206.48(a)(4). 

24See 44 CFR 206.48(a)(5). 

25 Id. at § 206.48(a)(6). 

26Public Law 115–254, 132 Stat. 3438 (Oct. 5, 

2018). 

27Memorandum for Regional Administrators 

from Jeff Byard, Associate Administrator, Office of 

Response and Recovery, Declaration Factors for 

Local Impact and Recent Multiple Disasters (May 1, 

2019). 

28Since the drafting of this proposed rule, FEMA 

has published the FY 2020 per capita indicator of 

$1.53. However, for the purposes of this proposed 

rule and analysis, FEMA will continue to discuss 

the FY 2019 per capita of $1.50. See FEMA, Notice 

of Adjustment of Statewide per Capita Impact 

Indicator, 83 FR 53279 (Oct. 22, 2018). 

29See, e.g., 84 FR 55324 (Oct. 16, 2019). 

30Per Capita Impact Indicator and Project 

Thresholds are published on FEMA’s website, 

available at https://www.fema.gov/publicassistance-indicator-and-project-thresholds. 

31 82 FR 4064, 4067 (Jan. 12, 2017). 

32 Disaster Assistance; Subpart C, the Declaration 

Process and State Commitments, 51 FR 13333, Apr. 

18, 1986, found at http://cdn.loc.gov/service/ll/ 

fedreg/fr051/fr051075/fr051075.pdf. Revisions were 

made to the BEA 1983 PCPI after publication of the 

proposed 1986 rule. FEMA used the PCPI of 

$11,687 to maintain consistency with the data used 

at the time of establishing the per capita indicator. 

33Per Capita Personal Income (PCPI) is calculated 

annually by the United States Department of 

Commerce’s Bureau of Economic Analysis. PCPI 

data is available for download at https://

apps.bea.gov/regional/downloadzip.cfm: Download 

‘‘Annual Personal Income by State’’ under ‘‘State 

Personal Income Accounts.’’ Historical PCPI data 

pulled from Excel sheet titled ‘‘SAINC1_ALL_

AREAS_1929_2018.’’ 

34Compare National Association of State Budget 

Officers (NASBO), 1988 State Expenditure Report, 

with NASBO, 2000 State Expenditure Report 

(available for download at: https://www.nasbo.org/ 

reports-data/state-expenditure-report/stateexpenditure-archives). Actual fiscal total US 

expenditures were $880,252 million in 1999 (found 

page 6 of the 2000 report) and $358,277 million in 

1986 (found page 5 of the 1988 report). Calculation: 

(($880,252¥$358,277)/$358,277) * 100 = 145.69 

percent (146 percent rounded). 

35 64 FR 47697 (Sept. 1, 1999). 

3. insurance coverage in force; 22

4. hazard mitigation; 23

5. recent multiple disasters; 24 and 

6. programs of other Federal 

assistance.25

FEMA evaluates every request with 

regard to each of these delineated 

factors, to the extent applicable. 

However, there is a strong correlation 

between the first factor, the estimated 

cost of the assistance, and the likelihood 

that FEMA will recommend that the 

President issue a major disaster 

declaration. 

On October 5, 2018, the President 

signed the Disaster Recovery Reform Act 

(DRRA).26 Section 1239 of the DRRA 

directs FEMA to review the factors it 

considers when evaluating a request for 

a major disaster declaration, specifically 

the estimated cost of assistance factor, 

and to initiate rulemaking to update the 

declaration factors. Further, Section 

1232 of the DRRA directs the FEMA 

Administrator to give ‘‘greater 

consideration’’ to the localized impacts 

and recent multiple disasters factors and 

to make corresponding adjustments to 

FEMA policies and regulations. FEMA 

now proposes to amend 44 CFR 

206.48(a) to make changes to the 

estimated cost of assistance factor. With 

respect to the recent multiple disasters 

and localized impacts factors, FEMA 

evaluated the provision of the DRRA as 

well as the current factors in regulation 

and determined that the regulation is 

sufficiently flexible to address the 

DRRA requirements. On May 1, 2019, 

FEMA issued guidance to Regional 

Administrators directing them to 

include in their recommendations 

appropriate and fulsome information 

regarding severe local impacts and the 

history of recent multiple disasters.27 As 

is discussed below, FEMA requests 

comment on whether revisions to the 

recent multiple disasters factor are 

necessary. 

A. Cost of Assistance Estimates 

1. Creation of the Per Capita Indicator 

Pursuant to 44 CFR 206.48(a)(1), 

FEMA evaluates the estimated cost of 

Federal and non-Federal public 

assistance resulting from an incident to 

inform its recommendation to the 

President of whether an incident is of 

such severity and magnitude that it is 

beyond the capabilities of the State and 

warrants Federal assistance under a 

major disaster declaration. To make this 

estimation, FEMA calculates the 

estimated cost of assistance, generally 

determined from joint FEMA-State 

Preliminary Damage Assessments, 

against the statewide population and if 

the estimated per capita dollar amount 

exceeds $1.50 (fiscal year (FY) 2019 per 

capita indicator),28 FEMA considers this 

an indicator that the incident is of such 

a size and magnitude that it may 

warrant Federal assistance for the State 

under a major disaster declaration. In 

other words, FEMA relies on the per 

capita indicator to assess the financial 

impact of an incident on a State and as 

an indicator of whether the State is 

overwhelmed and unable to effectively 

respond to an event on its own. 

FEMA publishes the updated per 

capita indicator in the Federal Register 

each year.29 FEMA multiplies the 

indicator by the impacted State’s most 

recent decennial population to 

determine the amount of damage that a 

State is expected to be able to 

independently manage without the need 

for supplemental Federal assistance (the 

State Cost of Assistance (COA) 

Indicator). For example, if an event 

occurred in FY2019 in a State with a 

2010 decennial census population of 

1,500,000, FEMA would multiply that 

population by the $1.50 indicator and 

arrive at a State COA indicator of 

$2,250,000.30 If the estimated cost of 

assistance exceeds $2,250,000, FEMA 

would consider this a strong indicator 

that the State is overwhelmed and in 

need of supplemental Federal 

assistance. 

Although FEMA considers every 

request for a Presidential major disaster 

declaration in light of each applicable 

regulatory factor, the probability of an 

incident being declared a major disaster 

and that incident having exceeded the 

State COA indicator in disaster damage 

between 2005 and 2014 was over 80 

percent (494 of 589 declared major 

disasters).31 In other words, whether 

damage assessments find an amount of 

damage that meets or exceeds the State 

COA indicator is highly correlated to 

whether that State will ultimately 

receive supplemental Federal assistance 

for that incident. 

FEMA began informally using the per 

capita indicator in 1986 and set it at $1, 

based on the 1983 nationwide per capita 

personal income (PCPI), as $1 was 

determined to be a reasonable portion of 

PCPI for a State to contribute towards 

the cost of a disaster. This amount also 

correlated closely to about 0.1 percent of 

established General Fund expenditures 

by States. With the passage of time, 

however, the indicator lost its relation 

to both metrics upon which FEMA first 

calculated it. When FEMA began using 

a per capita indicator of $1 in 1986, the 

most recent PCPI data available was 

1983 PCPI, which was $11,687.32 By 

1999, PCPI had risen 145 percent to 

$28,675.33 Similarly, the per capita 

indicator also fell short of keeping pace 

with State general fund expenditures. 

Between 1986 and 1999, the national 

average increase in State general fund 

expenditures was 146 percent.34 Despite 

these increases in PCPI and State 

general fund expenditures, FEMA did 

not increase the per capita indicator 

until 1999. 

2. Changes to the Per Capita Indicator 

and Establishment of the Minimum 

Threshold 

In 1999, FEMA issued a rule to codify 

the per capita indicator at $1 and 

establish, beginning in 1999, that FEMA 

would annually adjust the per capita 

indicator for inflation based on the 

Consumer Price Index for All Urban 

Consumers (CPI–U).35 This rule, along 

with the failure to increase the indicator 

over the years, removed any remaining 

association the indicator had in the past 


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36 In 1998, FEMA considered adjusting the per 

capita indicator to $1.51 to account for inflation 

since 1986, but because of input from state 

emergency management officials, FEMA decided 

not to do so. See GAO, GAO 12–838. 37See Historical CPI–U, April 2019 (available for 

download at https://www.bls.gov/cpi/tables/ 

supplemental-files/home.htm). CPI–U in April 1986 

was 108.6, CPI–U in January 1999 was 164.3. 

(164.3¥108.6)/108.6 = 51.23%. 38FEMA, Notice of Adjustment of Statewide per 

Capita Impact Indicator, gave notice that the 

statewide per capita impact indicator increased to 

$1.50 for all disasters declared on or after October 

1, 2018. 83 FR 53279 (Oct. 22, 2018). FEMA 

calculated inflation from between 1986 and 1999 by 

using the CPI–U from April 1986 to August 2018. 

Calculation: ((August 2018 CPI–U (252.146)—April 

1986 CPI–U (108.6))/April 1986 CPI–U (108.6)) + $1 

= $2.32 (rounded). FEMA uses the latest available 

month of CPI–U data to adjust the minimum 

threshold and per capita indicator each fiscal year, 

which is generally August CPI–U data. August 2018 

CPI–U data was the latest available data when 

FEMA established the FY2019 per capita indicator 

and is used in this analysis to maintain consistency 

with FEMA practice. 

39 44 CFR 206.48(a)(1). 40FEMA, Disaster Assistance; Factors Considered 

When Evaluating a Governor’s Request for a Major 

Disaster Declaration, 64 FR 47697 (Sept. 1, 1999). 41See, e.g., GAO, Disaster Assistance: 

Improvements Needed in Disaster Declaration 

Criteria and Eligibility Assurance Procedures, GAO 

01–837 (2001); See also, GAO, GAO–12–838 at 29. 

42See DHS OIG, OIG–12–79 at 3. 

43See, e.g., S.1960, Fairness in Federal Disaster 

Declarations Act of 2014, 113th Cong.; H.R. 3925, 

Fairness in Federal Disaster Declarations Act of 

2014, 113th Cong. (establishing criteria for FEMA 

to incorporate in rulemaking with specific weighted 

factors); H.R. 1859, Disaster Declaration 

Improvement Act of 2013, 113th Cong. (requiring 

new regulations concerning major disaster 

declarations). 

44 GAO, GAO–12–838 at 48. 

45 DHS OIG, OIG–12–79 at 7. 

46 GAO, GAO 12–838 at 48–49; See also DHS OIG, 

OIG–12–79 at 7–8. 

47 GAO, GAO 12–838 at 48–49; See also DHS OIG, 

OIG–12–79 at 7–9. 

48See Public Law 115–254, 132 Stat. 3466 (Oct. 

5, 2018). 

49 Delaware General Assembly, Section 1, House 

Substitute No. 1 for House Bill No. 275 of 2017. p. 

60. Retrieved 11 June 2018 (available for download 

at: http://delcode.delaware.gov/sessionlaws/ga149/ 

chp058.pdf). 

50NASBO, The State Expenditure Report, at 59 

(July 1987) (available for download at: https://

www.nasbo.org/reports-data/state-expenditurereport/state-expenditure-archives). 

51U.S. Dept. of Treasury, 2018 Total Taxable 

Resources Estimates (Sept. 2018), (available for 

download at: https://home.treasury.gov/system/ 

files/226/TTR-tables-2018.pdf) (last accessed Feb. 

19, 2019). 2016 is the most recently reported year 

for TTR because there is a two-year lag in reporting. 

with PCPI or State general fund 

expenditures. 

In setting the per capita indicator in 

1999, FEMA chose not to retroactively 

account for inflation from 1986–1999.36

Accordingly, FEMA did not, and to this 

date has not, accounted for the 51 

percent increase in the CPI–U between 

April of 1986 (when the per capita 

indicator was first set at $1) and January 

of 1999 (when FEMA proposed to adjust 

the per capita indicator for inflation).37

Consequently, since 1999, the per capita 

indicator has risen to its FY 2019 value 

of $1.50, rather than $2.32, which 

would be the value of the per capita 

indicator had FEMA accounted for 

inflation between 1986 and 1999.38

Also, in 1999, FEMA established, 

through regulation, a $1 million 

minimum threshold for any PA major 

disaster, regardless of the calculated 

State COA indicator.39 FEMA set the 

threshold at $1 million because it 

believed that even the lowest 

population States could reasonably be 

expected to cover this level of public 

assistance damage.40 Importantly, 

FEMA did not subject the $1 million 

floor to adjustments for inflation. FEMA 

has never raised the $1 million 

threshold. 

3. Criticism of the Current Cost of 

Assistance Estimates Factor 

In recent years, the Government 

Accountability Office (GAO),41 the 

Department of Homeland Security 

Office of Inspector General (DHS OIG),42

and Congress,43 have criticized and 

called for changes to the way FEMA 

considers the estimated cost of 

assistance for a disaster. For example, 

the GAO found that the PA per capita 

indicator is artificially low because it 

does not reflect the rise in PCPI since 

1986, or 13 years of inflation from 1986 

to 1999, resulting in recommendations 

to the President that do not 

comprehensively assess a jurisdiction’s 

capability to respond to and recover 

from a disaster on its own.44 Similarly, 

the DHS OIG found that roughly onethird of FEMA-State Preliminary 

Damage Assessments used to estimate 

the damage of a given event would not 

have exceeded the States’ COA 

indicators if the per capita indicator had 

been indexed to the Consumer Price 

Index since 1983.45 Both GAO and the 

DHS OIG recommended that FEMA 

develop and implement a methodology 

that provides a better reflection of 

current economic conditions and a more 

comprehensive assessment of a 

jurisdiction’s capability to respond and 

recover from a disaster without Federal 

assistance in order to decrease the 

frequency of disaster declarations and 

transfer some costs back to State and 

local jurisdictions.46 Additionally, GAO 

and the DHS OIG recommended that 

FEMA supplement the per capita 

indicator with more complete data on a 

jurisdiction’s financial resources (i.e., its 

tax base), such as TTR, in order to 

obtain a more comprehensive 

assessment of the jurisdiction’s ability 

to respond to a disaster on its own.47

More recently, in section 1239 of the 

DRRA, Congress directed FEMA to 

review the factors it considers when 

evaluating a request for a major disaster 

declaration, specifically the estimated 

cost of assistance factor, and to initiate 

rulemaking to update the declaration 

factors.48

4. Problems With the Current Cost of 

Assistance Estimates Factor 

a. The Current Cost of Assistance 

Estimates Factor No Longer Provides an 

Accurate Measure of States’ Capabilities 

To Respond to Disasters and Is No 

Longer Reflective of Current Economic 

Conditions 

The lack of increases to the per capita 

indicator from 1986 to 1999 undercut 

the value of this factor as an indicator 

of State capacity given the reduction in 

purchasing power during that time. 

Similarly, on the minimum threshold, 

the lack of an increase since 1999 has 

prevented this factor from keeping pace 

with inflation, and rising State budgets 

and resources. For context, the lowest 

State budget for FY 2018 (Delaware) was 

just over $4 billion,49 while its State 

COA indicator for FY 2018 was just over 

$1.31 million, or 0.032 percent of the 

State’s budget. For comparison, in FY 

1987, Delaware’s budget was just under 

$1 billion,50 while its State COA 

indicator was just under $595,000, or 

0.063 percent of Delaware’s FY 1987 

State budget. Similarly, the lowest TTR 

amongst the States for FY 2016 

(Vermont) was $36.1 billion,51 while 

that State in FY 2016 was subject to the 

$1 million minimum threshold, or 

0.0028 percent of the State’s TTR. 

Because its State COA indicator was less 

than $1 million, Vermont would have 

been subject to the $1 million threshold 

in FY 2016. For comparison, Vermont’s 

TTR in 1997 was $17.3 billion, while it 

was subject to the $1 million minimum 

threshold, or 0.0058 percent of its 1997 

TTR. As shown from these figures, the 

ratio of the per capita indicator and the 

minimum threshold as a percentage of 

State budgets and TTR has decreased 

since FEMA began using the per capita 

indicator and minimum threshold. 

Moreover, as discussed in the 

Regulatory Impact Analysis (RIA) found 

in the docket of this rulemaking, since 

1999, State gross domestic product 

(GDP), total State expenditures, and 

State TTR have increased, on a 

nationwide average, by approximately 

113 percent, 131 percent, and 130 


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52See Regulatory Impact Analysis (RIA) at 47. 

The RIA is available in the public docket for this 

proposed rule on regulations.gov. 

53FEMA, 2018–2022 Strategic Plan at 8 (2018). 54 GAO, Budgeting for Disasters: Approaches to 

Budgeting for Disasters in Selected States, GAO– 

15–424, at 17 (March 2015). 

55 Id. at 21. 

56See FEMA, Disaster Assistance; Factors 

Considered When Evaluating a Governor’s Request 

for a Major Disaster Declaration, 64 FR 47697 (Sept. 

1, 1999). See also, FEMA, Disaster Assistance; 

Factors Considered When Evaluating a Governor’s 

Request for a Major Disaster Declaration, 64 FR 

3910, 3911 (Apr. 26, 1999). 

57FEMA, 2017 Hurricane Season FEMA AfterAction Report, at 23 (July 12, 2018). 

58 Id. 

59This total includes emergency, major, and fire 

management assistance declarations. 

60FEMA, 2017 Hurricane Season FEMA AfterAction Report, at 14. 

61 Id. at 18. 

percent, respectively.52 In comparison, 

since 1999, the per capita indicator and 

the minimum threshold have risen 50 

percent and 0 percent, respectively. 

Consequently, FEMA is relying upon 

per capita indicator and minimum 

threshold factors that are no longer 

adequate measures of a State’s 

capability to respond to and recover 

from a disaster. The result is a greater 

likelihood that FEMA recommends 

major disaster declarations for relatively 

small incidents that a more accurate 

assessment would find is within a 

State’s financial capabilities to respond 

to on its own. This result is counter to 

the intent of the Stafford Act that 

Federal assistance be supplemental, and 

only necessary for disasters that exceed 

a State’s capabilities. In light of the rise 

in the costs to respond to and recover 

from a disaster (construction costs in 

particular), the lack of increases to the 

per capita indicator has led to outcomes, 

especially in less populous States, 

where minor, concentrated 

infrastructural damage (e.g., a dirt road 

washout or damage to a single building) 

would result in costs sufficient to meet 

the per capita indicator and potentially 

result in a disaster declaration. While 

such incidents can certainly be 

disruptive and expensive, it is 

questionable whether such minor, 

concentrated damage really overwhelms 

a State and warrants a Presidential 

major disaster declaration. 

In sum, the per capita indicator and 

minimum threshold are not reflective of 

the change in economic conditions 

since 1986 and 1999, respectively, and 

are no longer adequate measures of the 

States’ capabilities to respond to, and 

recover from, incidents on their own. 

The increases in State resources and 

expenditures, and costs, generally, 

without corresponding increases to the 

per capita indicator and minimum 

threshold, has created a situation where 

Federal assistance is being provided for 

incidents which are more appropriately 

addressed by the States. This is counter 

to the intent of the Stafford Act that 

Federal assistance be provided only 

where State and local capabilities are 

overwhelmed. 

b. The Current Cost of Assistance 

Estimates Factor Undermines FEMA’s 

Mission to Better Prepare the Nation for 

Disasters by Disincentivizing States 

From Investing in Disaster Mitigation 

and Preparedness 

The current per capita indicator and 

minimum threshold act as disincentives 

for States to invest in disaster response 

and recovery capabilities for incidents 

that should be within their capability to 

respond. Emergency management is a 

shared responsibility that is most 

effective when disaster operations are 

federally supported, State managed, and 

locally executed, where Federal support 

supplements, rather than supplants, 

State and local efforts.53 In order to 

build a more prepared and resilient 

nation, it is essential that State, local, 

Tribal, and Territorial governments 

continually mitigate risk to hazards 

posed by natural disasters, and build 

their response and recovery capabilities 

for future incidents, including the 

creation of dedicated financial reserves 

to respond to incidents. 

While State and local governments 

respond on their own to countless small 

incidents that do not reach the level of 

their current State COA indicator, there 

is little incentive for States to build their 

response and recovery capabilities 

beyond their current State COA 

indicator, since Federal assistance will 

be provided at that point, even though 

FEMA believes all States have financial 

capabilities beyond their current State 

COA indicator. For example, in a 2015 

study of 10 States, the GAO found that 

some States reported that they could 

cover disaster costs without dedicated 

disaster reserves because they generally 

relied on the Federal Government to 

fund most of the costs associated with 

disaster response and recovery.54 GAO 

ultimately concluded, in part, that given 

the fiscal challenges facing all levels of 

government, there may be increased 

pressure to consider whether the current 

State and Federal approach for 

providing disaster assistance balances 

responsibilities appropriately.55

The current situation is contrary to 

two of FEMA’s primary objectives when 

FEMA first formally established the 

declaration factors in regulation in 1999: 

To encourage States to establish their 

own funded disaster assistance 

programs and to incentivize States to 

mitigate hazards and obtain insurance 

coverage, where possible.56 Moreover, 

the status quo undermines FEMA’s 

mission to build a more prepared and 

resilient nation by encouraging States to 

rely on Federal assistance when they are 

capable of being better prepared and 

more resilient on their own. 

c. The Current Cost of Assistance 

Estimates Factor Undermines FEMA’s 

Mission To Prepare for and Respond to 

the Worst Disasters Without Delay 

FEMA’s response and recovery 

operations for numerous and 

cumulative small disasters weaken its 

ability to quickly respond to and aid 

recovery efforts for larger, or concurrent 

catastrophic disasters. FEMA’s incident 

workforce is historically overcommitted to smaller disasters, leaving 

a fraction of the Agency’s capacity to 

prepare for, respond to, and recover 

from complex catastrophes and national 

security emergencies.57

The constraints imposed by numerous 

and cumulative smaller disasters affect 

the Agency’s readiness to support 

disaster recovery operations without 

unacceptable delays by consuming 

FEMA staff time and resources that 

would be better used for larger disasters. 

For example, FEMA began the 2017 

disaster season with nearly 30 percent 

of its workforce deployed on numerous 

smaller disasters across the country, 

which then required extraordinary and 

disruptive measures to reallocate and 

redistribute employees to meet the 

evolving requirements for hurricanes 

Harvey, Irma, Maria, and the California 

Wildfires.58 When Hurricane Harvey 

made landfall in Texas, FEMA already 

had 692 open disaster and emergency 

declarations.59 Of that total, it had staff 

deployed to 32 disasters across 19 field 

offices.60 Additionally, in anticipation 

of concurrent impacts from Hurricane 

Irma, FEMA transitioned 9 active field 

offices supporting 13 disasters to 

regional offices prior to their anticipated 

closure date. The respective FEMA 

regional offices assumed responsibility 

for supporting these operations once the 

field offices transitioned, requiring 

FEMA regional staff to aid recovery 

efforts for these disasters in addition to 

those disasters already overseen by the 

Regional offices, as well as the daily 

operations of the Regional offices.61 Of 

the 298 staff that were demobilized from 

the 9 field offices, FEMA redeployed 

182 personnel to Hurricanes Harvey, 

Irma, and Maria within 15 days, 223 


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62 Id. 

63 Id. at 23. 

64The Census Bureau’s Population Estimates 

Program (PEP) produces annual estimates for years 

after the last published decennial census 2010, as 

well as for past decades. Existing data series such 

as births, deaths, Federal tax returns, Medicare 

enrollment, and immigration, are used to update the 

decennial census base counts. PEP estimates are 

used in Federal funding allocations, in setting the 

levels of national surveys, and in monitoring recent 

demographic changes. U.S. Census Bureau, 

Population and Housing Units Estimates: 

Frequently Asked Questions (available at: https://

www.census.gov/programs-surveys/popest/about/ 

faq.html) (last accessed April 26, 2019). 

65Also known as the Population and Housing 

Census, the Decennial U.S. Census counts every 

resident in the United States. It is mandated by 

Article I, Section 2 of the Constitution and takes 

place every 10 years. The data collected by the 

decennial census determine the number of seats 

each state has in the U.S. House of Representatives 

and is also used to distribute billions in Federal 

funds to local communities. U.S. Census Bureau, 

Our Surveys & Programs: Our Censuses (available 

at https://www.census.gov/programs-surveys/ 

censuses.html) (last accessed June 26, 2019). 

66U.S. Census Bureau, Report No. DP–1, Profiles 

of General Demographic Characteristics 2000: 

Census of Population and Housing: Nevada (May 

2001) (available for download at: https://

www2.census.gov/library/publications/2001/dec/ 

2kh32.pdf?#) (last accessed April 26, 2019). 

67See U.S. Census Bureau, Intercensal Estimates 

of the Resident Population by Sex, Race and 

Hispanic Origin for States and the United States: 

April 1, 2000 to July 1, 2010 (available for 

download at: https://www.census.gov/data/tables/ 

time-series/demo/popest/intercensal-2000-2010- 

state.html) (last accessed April 26, 2019). 

68 Id. 

69U.S. Census Bureau, Puerto Rico 

Commonwealth Population Totals and Components 

of change: 2010–2018: Annual Estimates of the 

Resident Population for the United States, Regions, 

States, and Puerto Rico: April 2010 to July 2018 

(available for download at: https//www.census.gov/ 

data/tables/time-series/demo/popest/2010s-totalpuerto-rico.html) (last accessed May 2, 2019). 

70 73 FR 60303 (Oct. 10, 2008). 

71Calculation: 1,998,257 × $1.31 = $2,617,717. 

72Calculation: 2,684,665 × $1.31 = $3,516,911. 

73Calculation: 3,725,789 × $1.50 = $5,588,684. 

personnel within 30 days, and 242 

personnel within 90 days.62

FEMA’s responsibilities require it to 

have the capacity to respond in the 

shortest possible time, under all 

conditions, and to provide adequate 

staffing and resources for long-term 

recovery efforts for FEMA to 

successfully accomplish its mission. 

FEMA needs immediate operational 

availability because complex, no-notice 

or concurrent catastrophes do not 

provide time to maximize readiness by 

amassing a workforce and extracting 

response resources from multiple 

smaller-scale commitments. Moreover, 

FEMA needs proper staffing, resources, 

and focus for the long-term recovery 

operations for large disasters so that 

affected communities can be repaired 

and rebuilt and return to normal day-today life as soon as possible. FEMA is 

unable to properly meet these demands 

when such a large portion of FEMA’s 

staffing and focus are committed to 

numerous and cumulative smaller 

disasters that are actually, or should be, 

within the States’ capabilities to handle 

on their own. 

As noted in FEMA’s After-Action 

Report for the 2017 Hurricane Season, 

for FEMA to be better positioned for 

future challenges, State and territorial 

governments should be able to respond 

to and recover from smaller incidents 

within their capabilities either 

organically or through collaboration 

with neighboring states and territories. 

Strengthened States and territories, in 

turn, allow FEMA to preserve sufficient 

capacity to promptly respond to and 

recover from large, complex, or 

concurrent catastrophes and national 

security emergencies.63 However, as 

noted above, the current per capita 

indicator and minimum threshold 

disincentivize States from building their 

capabilities to respond to smaller 

incidents on their own, which 

undermines FEMA’s ability to respond 

to and recover from large, complex, or 

concurrent large disasters, and weakens 

the preparedness and resilience of the 

Nation. FEMA could be faster and more 

effective in planning for, responding to, 

and recovering from large catastrophic 

disasters if more of its workforce was 

able to focus on such large disasters, 

rather than being dispersed to numerous 

smaller incidents more appropriately 

handled by the States. 

d. FEMA’s Use of the Decennial Census

as a Data Source for Population

FEMA has exclusively relied upon the 

U.S. Census Bureau’s decennial census 

reports on population to calculate State 

COA indicators since the inception of 

the per capita indicator.64 The decennial 

census is a major governmental 

undertaking that involves canvasing the 

nation and is considered the mostaccurate account of the United States 

population at the time it is conducted.65

However, the decennial survey is only 

conducted every 10 years. Meanwhile, 

populations constantly fluctuate due to 

changing circumstances, such as 

economic growth and downturn, 

relocations driven by disaster, and other 

factors. In many cases these fluctuations 

are rather de minimis, but occasionally 

they are not. In such instances, as more 

time elapses after the most recently 

completed decennial census survey, the 

data from that decennial survey census 

becomes a less and less accurate 

measure of the current populations. 

Therefore, the Census Bureau uses the 

Population Estimates Program (PEP) to 

update the populations since the 

decennial Census was collected. 

Illustrative of how drastically the 

decennial census data can diverge from 

the PEP estimates are the cases of 

Nevada in 2000 and Puerto Rico in 

2010, showing the greatest increase and 

greatest decrease in population in those 

periods, respectively. The 2000 

decennial census reported the 

population of Nevada to be 1,998,257.66

The 2001 PEP estimate for Nevada was 

2,098,399. By 2009, the PEP estimate 

had risen to 2,684,665.67 The 2010 

decennial census reported Nevada’s 

population at 2,700,551. Nevada’s 

population grew by 35 percent between 

2000 and 2010. Consequently, by 2010, 

the 2000 decennial census data showed 

a population for Nevada that was 35 

percent lower than its 2010 population. 

Comparatively, the 2009 Nevada PEP 

estimate was off by only 0.6 percent 

from the actual population reported in 

the 2010 decennial survey. Similarly, 

the 2010 decennial census reported the 

population of Puerto Rico to be 

3,725,789.68 However, by July of 2018, 

the PEP estimate for Puerto Rico fell to 

3,195,153, a 14 percent decrease.69

Despite the increasing divergence of 

past decennial data from current 

populations in out years, FEMA 

continues to utilize solely decennial 

data for purposes of calculating the 

State COA indicators. Under this 

approach, FEMA essentially locks-in the 

population of each State until the new 

decennial census data is collected, 

analyzed, and reported. In monetary 

terms, FEMA’s choice to rely solely on 

decennial population values can impact 

the State COA indicator for a State 

whose population is quickly changing. 

Nevada and Puerto Rico again provide 

illustrative examples of this effect. In 

2009, the PA per capita indicator was 

$1.31.70 Based on the 2000 decennial 

population that FEMA was still utilizing 

in 2009, Nevada’s State COA indicator 

in 2009 was $2,617,717.71 Even if FEMA 

made no changes to the underlying State 

COA indicator formula other than 

substituting the 2009 PEP population 

estimate for the 2000 decennial census 

population estimate, Nevada’s State 

COA indicator would have risen to 

$3,516,911.72 That results in a 

difference of $899,194. Thus, continuing 

to utilize the static 2000 decennial 

census figures in 2009 undervalues 

Nevada’s State COA indicator by 34 

percent. With respect to Puerto Rico, 

based on the 2010 decennial census data 

that FEMA currently utilizes, Puerto 

Rico’s FY 2019 State COA indicator is 

$5,588,684.73 Assuming no changes to 

the underlying per capita indicator 


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74Calculation: 3,195,153 × $1.50 = $4,792,730. 

75 64 FR 47697. See also 64 FR 3911. 

76 64 FR 47697. See also 64 FR 3911. 

77 44 CFR 206.48(a)(2) & (5). 

78Memorandum for Regional Administrators 

from Jeff Byard, Associate Administrator, Office of 

Response and Recovery, Declaration Factors for 

Local Impact and Recent Multiple Disasters (May 1, 

2019). 

79As discussed more below, FEMA will not 

adjust the District of Columbia’s per capita 

indicator for TTR because of the unique tax and 

Federal funding circumstances in the District, as 

well as Congress’ control over the ability of the 

District to manipulate its own revenues. 

Additionally, FEMA will not adjust the territories’ 

per capita indicators for TTR because Treasury does 

not report TTR for the territories. 

formula other than substituting 2018 

PEP population estimate for the 2010 

decennial census population estimate, 

Puerto Rico’s State COA indicator 

would be $4,792,730,74 or a difference 

of $795,954. Thus, continuing to utilize 

the 2010 decennial census figures in 

2019 overvalues Puerto Rico’s State 

COA indicator by 14 percent. 

As shown above, FEMA’s reliance on 

population data from the most recent 

decennial survey can lead to an 

imprecise assessment of a State’s 

population. Using PEP estimates will 

provide more up-to-date population 

information and allow for more accurate 

analysis. 

B. Localized Impacts and Multiple 

Disasters 

In addition to estimating the cost of 

assistance for a disaster, pursuant to 44 

CFR 206.48(a)(1), FEMA also considers 

a variety of other factors when 

reviewing a request for a major disaster 

declaration authorizing PA. While the 

cost of assistance estimates factor is 

often the greatest indicator of whether 

FEMA will recommend that the 

President issue a major disaster 

declaration, that factor alone does not 

automatically mean a denial if the State 

does not meet it, nor does it guarantee 

a declaration if the State does meet it.75

Rather, FEMA considers each factor to 

better evaluate the unique 

circumstances or needs created by each 

incident.76

Two of the factors that FEMA 

considers in reviewing a Governor’s 

request are the recent disasters in an 

area, and the localized impacts of a 

disaster.77 With respect to recent 

disasters, FEMA considers the disaster 

history within the last 12-month period 

to better evaluate the overall impact on 

the State or locality. FEMA considers 

declarations under the Stafford Act as 

well as declarations by the Governor 

and the extent to which the State has 

spent its own funds. With respect to 

localized impacts, FEMA considers the 

impact of the incident at the county and 

local government level, as well as 

impacts at the American Indian and 

Alaskan Native Tribal Government 

levels, because at times there are 

extraordinary concentrations of damages 

that might overwhelm State capabilities 

even if the State COA indicator is not 

met, especially where critical facilities 

are involved or where localized per 

capita impacts might be extremely high. 

For example, at times localized damage 

may be in the tens or even hundreds of 

dollars per capita, though the statewide 

per capita impact was low. 

In recent years, some members of 

Congress have expressed concern that 

the President has denied declarations 

that were warranted because of other 

recent disasters in the area and localized 

impacts, particularly where the impact 

is limited to the rural or sparsely 

populated areas of a high population 

State and the estimated costs of the 

incident do not exceed the State COA 

indicator. Section 1232 of the DRRA 

requires the Administrator of FEMA to 

give greater consideration to recent 

multiple disasters or severe localized 

impacts when making disaster 

declaration recommendations to the 

President, and to make corresponding 

adjustments to FEMA’s policies and 

regulations regarding such 

consideration. 

The existing recent multiple disasters 

provision in FEMA’s regulations is 

broad with respect to how much 

consideration the Administrator gives to 

disasters in the previous 12 months. 

Consistent with that provision and with 

FEMA’s May 1 guidance to Regional 

Administrators, directing them to 

include in their recommendations 

appropriate and fulsome information 

regarding severe local impacts and the 

history of recent multiple disasters,78

FEMA is giving greater consideration to 

these factors when making disaster 

declaration recommendations. 

Accordingly, FEMA does not propose to 

substantively amend 44 CFR 

206.48(a)(5), but requests comment on 

whether the 12-month time limit 

currently in place is sufficient to 

address this factor as required by the 

DRRA. Similarly, FEMA proposes not to 

substantively amend the current 

regulatory text for the localized impacts 

factor in § 206.48(a)(2). FEMA believes 

that the current regulatory text enables 

FEMA to provide adequate 

consideration of local impacts while 

ensuring that FEMA does not over step 

the statutory requirement that an event 

be beyond State capability. FEMA also 

does not propose at this time to 

substantively amend the other 

declaration factors at 44 CFR 

206.48(a)(3) (‘‘Insurance coverage in 

force’’), (4) (‘‘Hazard mitigation’’), and 

(6) (‘‘Programs of other Federal 

assistance’’). The current regulatory text 

for these factors already provides for 

adequate consideration of important 

information for FEMA assessment of a 

State’s capabilities to respond to an 

event, while also providing sufficient 

flexibility for FEMA to account for a 

variety of circumstances across the 

States. However, FEMA is proposing 

minor technical and grammatical 

changes to all of § 206.48(a). 

IV. Discussion of the Proposed Rule 

FEMA proposes to revise the 

‘‘Estimated cost of the assistance’’ factor 

in 44 CFR 206.48(a)(1) by increasing the 

per capita indicator to account for 

inflation from 1986 to 1999 and 

adjusting the individual States’ 

indicators by their total taxable 

resources (TTR),79 and by increasing the 

minimum threshold by accounting for 

inflation from 1999 to 2019, and 

annually thereafter. These changes 

would provide FEMA with a better 

informed and more accurate assessment 

of whether an incident has exceeded 

State capabilities when it makes its 

recommendations to the President; 

incentivize States to invest more in 

response, recovery, and mitigation 

capabilities, which would provide a 

better distribution of responsibilities 

between the States and the Federal 

Government and better overall national 

preparedness for disasters; and the 

associated reductions in declarations of 

small incidents would allow FEMA to 

better focus its efforts and resources on 

large disasters without the 

complications of reallocating resources 

from multiple smaller-scale 

commitments. 

Additionally, FEMA also proposes to 

use the U.S. Census Bureau’s annual 

population estimates produced under 

the Population Estimates Program (PEP) 

instead of the decennial census 

population data. Using the U.S. Census 

Bureau’s annual PEP data instead of the 

decennial census data would ensure a 

more accurate assessment of an 

individual State’s population, which 

would better enable FEMA to achieve its 

readiness and preparedness missions by 

allowing FEMA to expend more 

attention and resources on incidents 

that actually exceed the States’ 

capabilities. 

Importantly, this proposed rule does 

not affect disaster declaration requests 

received directly from Tribal 

governments under the Tribal 


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80FEMA, Tribal Declarations Pilot Guidance, 

available at: https://www.fema.gov/tribaldeclarations-pilot-guidance. Notice of availability 

published at 82 FR 3016 (Jan. 10, 2017). 

81The FY2019 per capita indicator was the most 

current per capita indicator at the time that this 

proposed rule was written. 

82Using August 1986 and 1999 CPI–U historical 

data. 

83BLS Archived Consumer Price Index 

Supplemental Files (available for download at: 

https://www.bls.gov/CPI-U/tables/supplementalfiles/home.htm). Data was taken from the Historical 

CPI–U, February 2019 publication. 

84Calculation: $1 + (252.146–108.60)/108.60 = 

$2.322 (rounded). 

85See 64 FR 47697 (Sept. 1, 1999). 

86Treasury updates TTR data annually with a 2- 

year lag in the data, available at https://

home.treasury.gov/policy-issues/economic-policy/ 

total-taxable-resources. 

87 Dep’t of Treasury, Office of Economic Policy, 

Treasury Methodology for Estimating Total Taxable 

Resources, at 2 (Revised Nov. 2002) (available for 

download at: https://www.treasury.gov/resourcecenter/economic-policy/Documents/ 

nmpubsum.pdf). 

88See Id. at 1–4. 

89See Id. at 2. 

90 Id. 

91 Id. at 2–3. 

92See Id. at 1–4. 

93FEMA, Factors Considered When Evaluating a 

Governor’s Request for Individual Assistance for a 

Major Disaster, 84 FR 10632 (March 21, 2019). The 

revised IA regulations also allow States to submit 

information regarding State GDP and local per 

capita personal income, as well as other limiting 

factors, which FEMA may use as an alternative or 

supplemental evaluation method to TTR from 

which to measure a State’s fiscal capacity to 

provide IA in response to a disaster. See 44 CFR 

206.48(b)(1)(i)(A)–(C). 

Declarations Pilot Guidance, or any of 

the criteria contained in that guidance.80

FEMA also proposes minor technical 

and corresponding grammatical changes 

to the introductory paragraph of 

§ 206.48 and all of paragraph (a) to 

ensure consistent language throughout 

this section. 

A. 44 CFR 206.48(a)(1)—Adjusting the 

Per Capita Indicator 

1. Increasing the Per Capita Indicator To 

Account for Inflation Between 1986 and 

1999 

FEMA proposes to increase the per 

capita indicator from a FY 2019 value of 

$1.50,81 to $2.32 (rounded), to account 

for increases to the Consumer Price 

Index for All Urban Consumers (CPI–U) 

between 1986 and 1999.82 FEMA would 

continue to adjust the per capita 

indicator annually to reflect changes in 

the CPI–U, as is current practice. This 

would establish the baseline per capita 

indicator which FEMA would further 

adjust for each State, as described 

below. 

The CPI–U is calculated and 

published by the U.S. Department of 

Labor, Bureau of Labor Statistics,83 and 

uses the period of 1982 to 1984 as the 

base level where the CPI–U = 100. 

Current FEMA practice is to update the 

per capita indicator each fiscal year 

using the latest available month of CPI– 

U data. Since the per capita indicator is 

reported for the fiscal year and is 

published each October, the latest 

available CPI–U data is August data 

published in September each year. To 

maintain consistency with how FEMA 

updates the per capita indicator, FEMA 

calculated the inflation adjustment by 

comparing the April CPI–U for the base 

year 1986 (108.60) with the August CPI– 

U for 2018 (252.146). At the time of this 

analysis, August 2018 CPI–U data was 

the most recently available August CPI– 

U data available. This resulted in an 

inflation adjustment factor of 2.322.84

FEMA then multiplied the inflation 

adjustment factor of 2.322 by the 

original per capita indicator of $1.00 to 

find a base per capita indicator of $2.32 

(rounded). 

Moving forward, once FEMA 

increases the indicator for the 1986– 

1999 inflationary adjustments, the 

continued practice of adjusting the 

indicator to account for changes in the 

CPI–U would continue to ensure that 

the indicator keeps pace with inflation. 

This would lead to reductions in the 

number and frequency of future major 

disaster declarations, and decreases in 

Federal costs of disaster assistance, by 

having States take responsibility for 

costs that are within their capability to 

manage. 

Much like FEMA’s decision in 1999 to 

set the per capita indicator at $1 and 

begin adjusting for inflation, rather than 

PCPI,85 the current proposed change (to 

increase the per capita indicator for 

inflation between 1986 and 1999) 

provides a simple, clear, consistent, and 

long standing means of evaluating the 

size of a disaster relative to the size of 

the State, while also decreasing the 

number and frequency of disaster 

declarations, and decreasing Federal 

disaster costs. Moreover, increasing the 

per capita indicator to account for 

inflation from 1986 to 1999 would be 

more reflective of current dollar values, 

and would better enable FEMA to 

achieve its readiness and preparedness 

missions because FEMA would be able 

to apply more attention and resources to 

large catastrophic incidents as less 

FEMA focus and resources would be 

needed for smaller incidents actually 

within the States’ capabilities. 

2. Adjusting the Increased Per Capita 

Indicator for Total Taxable Resources 

In addition to increasing the per 

capita indicator to account for inflation 

from 1986 to 1999, FEMA proposes to 

adjust the increased, baseline per capita 

indicator for a State’s TTR to set an 

indicator that better recognizes a State’s 

actual fiscal capability. 

The TTR of the State is a publicly 

available annual estimate of the relative 

fiscal capacity of a State, calculated by 

the U.S. Department of Treasury 

(Treasury).86 Treasury defines TTR as 

the unduplicated sum of the income 

flows produced within a State and the 

income flows, received by its residents, 

which a State could potentially tax.87

TTR includes much of the business 

income that does not become part of the 

income flow to jurisdiction residents, as 

well as undistributed corporate profits, 

and rents and interest payments made 

by businesses to out-of-jurisdiction real 

estate owners and lenders.88 TTR does 

not consider the actual fiscal choices 

made by the States, but rather, it reflects 

their potential resources and is an 

indicator of a State’s broader 

economy.89 In summary, TTR is a flow 

concept, meaning it is a comprehensive 

measure of all the income flows a State 

can potentially tax.90 Treasury bases its 

calculation of the TTR on the Gross 

State Product (GSP) and State personal 

income,91 accounting for the earnings of 

State residents who work outside the 

State borders, dividend and monetary 

interest income earned from sources 

outside of the State, select transfers from 

the Federal Government, and net 

realized capital gains. The following 

components of GSP were not available 

to States to tax and hence subtracted 

from GSP: Federal indirect business 

taxes, employer and employee 

contributions to social insurance, and 

Federal civilian enterprises surplus/ 

deficit.92

Consideration of TTR as an indicator 

of State fiscal capacity is also consistent 

with FEMA’s recent rulemaking revising 

the factors considered when evaluating 

requests for Individual Assistance (IA). 

The revised regulations for evaluating 

requests for IA (44 CFR 206.48(b)) use 

TTR as the main indicator of a State’s 

fiscal capacity to provide IA.93

FEMA considered other potential 

alternatives for adjusting the per capita 

indicator to better measure a State’s 

financial capabilities, including State 

GDP (i.e., the total value of the goods 

and services produced within the State 

in a particular year); State Total Actual 

Revenues (TAR) (i.e., the amount of 

revenue a particular State actually raises 

in a typical year); and a composite index 

of per capita TTR, per capita surplus/ 

deficit, per capita reserve funding, and 

the State’s bond rating. State GDP and 

TAR are strongly correlated with TTR; 


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94 82 FR 4064, 4072 (Jan. 12, 2017). 

95U.S Dept. of Treasury, 2018 Total Taxable 

Resources Estimates (2018), https://

home.treasury.gov/system/files/226/TTR-tables2018.pdf. 

96The GAO recommended the same approach to 

use a fiscal index to adjust the per capita indicator. 

GAO, GAO 12–838 at 71–72. 

97Notably, the revisions to the regulations 

governing requests for IA included the ability for 

States to submit information on their GDP and local 

per capita personal income (PCPI) which FEMA 

may use as a supplemental or alternative factor to 

TTR when measuring a State’s fiscal capacity to 

provide IA. See 44 CFR 206.48(b)(1). While such 

data may be useful in the IA context, it is less so 

in the PA context. First, FEMA notes that the use 

of State GDP and local PCPI are only as potential 

supplemental or alternative data points for fiscal 

capacity; TTR is still the preeminent factor for 

determining fiscal capacity for IA requests. Second, 

the IA program does not use a per capita indicator 

like the PA program, nor does it use any adjustment 

factors such as the proposed rule. Accordingly, if 

FEMA were to incorporate State GDP and local 

PCPI, along with TTR, into its consideration of PA 

requests, it would need to create a formula to adjust 

the per capita indicator, which would add 

complexity to the per capita indicator with little 

benefit given that TTR already incorporates a 

measure of a State’s GDP and personal income. 

Moreover, States may submit data on their GDP or 

local PCPI to supplement their request for a PA 

declaration, since FEMA may consider information 

in addition to the factors in 44 CFR 206.48(a) to the 

extent that it further informs FEMA’s 

recommendation to the President. 

98As noted above, FEMA is not proposing to use 

TTR data for the territories and DC. South Dakota 

had a TTR of 100 in 2018. 

however, TTR, as a measure of 

potential, does not suffer from 

complications of political choice in TAR 

or GDP that result from differences 

between States in State tax obligations 

and the services for which tax dollars 

are allocated. Accordingly, given the 

correlation between the three, and the 

policy-neutrality of TTR, FEMA believes 

that TTR is the best measure of a State’s 

financial capabilities by which to adjust 

the baseline per capita indicator. 

Under the composite index approach, 

FEMA would average the four fiscal 

capacity indices and use the final figure 

to adjust each State’s per capita 

indicator. This type of analysis was 

previously considered for use in 

FEMA’s Establishing a Deductible for 

FEMA’s Public Assistance Program 

Supplemental Advance Notice of 

Proposed Rulemaking (Deductible 

ANPRM).94 The Deductible ANPRM 

was an earlier attempt to address the 

issue of underestimating States’ fiscal 

capacity when recommending disaster 

declarations, and the four-part 

composite index analysis was part of the 

reason the deductible was eventually 

rejected. Public comments received on 

the Deductible ANPRM made clear that 

State and local stakeholders were 

uncomfortable with the complexity of 

the four-factor analysis; although it is 

more in-depth and could potentially 

produce more accurate assessments of 

States’ fiscal capacities, the analysis is 

also a substantially more complicated 

framework for States and PA subrecipients to adapt to and plan around. 

FEMA decided against using it here for 

these same reasons. FEMA believes 

adjusting the per capita indicator only 

by TTR strikes an appropriate balance 

between improving the fiscal capacity 

analysis by considering more than 

simply a State’s population, and not 

burdening States with an overly 

complicated formula that slows 

implementation of the new framework. 

Based on the above, FEMA believes 

that adjusting the baseline per capita 

indicator for TTR would result in a 

more realistic estimate of a State’s 

financial capability. As previously 

discussed, adjusting the per capita 

indicator to adjust for inflation using the 

CPI–U between 1986 and 1999 would 

provide a more accurate measurement of 

the current costs of response and 

recovery, as well as changing present 

value of the dollar. Adjusting the 

indicator based on a State’s TTR would 

provide additional accuracy in gauging 

a State’s fiscal capacity by accounting 

for taxable resources other than the 

State’s population, such as business 

income, undistributed corporate profits, 

and resident earnings from out-of-state 

employment. This approach also aligns 

with the recommendations of DHS OIG 

and GAO, Congress’ direction in section 

1239 of the DRRA, as well as the 

Stafford Act and FEMA’s Strategic Plan, 

by ensuring that Federal assistance 

supplements State and local efforts 

when State and local capabilities have 

been exceeded, rather than supplanting 

resources that a State is financially 

capable of providing on its own. 

Treasury reports TTR in three formats: 

billions of dollars, dollars per capita, 

and the per capita index. To adjust for 

TTR, FEMA would use 1/100th of the 

TTR per capita index, which is 

calculated relative to the national 

average TTR for a given year, where a 

TTR per capita index of 100 represents 

the national average. For example, if a 

State had a TTR per capita index of 101, 

FEMA would multiply the baseline 

indicator by 1.01 to adjust (e.g., $2.32 × 

1.01 = $2.34). FEMA would use the 

most recent TTR data available. Using 

2018 published data, the minimum per 

capita indicator adjusted for TTR would 

be $1.52 (Mississippi, $2.32 × .655 = 

$1.52) and the maximum per capita 

indicator adjusted for TTR would be 

$3.17 (Connecticut, $2.32 × 1.368 = 

$3.17).95

FEMA believes that this method is the 

clearest and simplest method of 

utilizing the reported formats of TTR.96

If FEMA were to use one of the other 

reported formats of TTR, FEMA would 

need to set a percentage of State total 

TTR in billions of dollars or State TTR 

per capita that would be appropriate for 

measuring a State’s fiscal capability for 

responding to an incident, or FEMA 

would need to devise a formula by 

which to obtain a number that would 

adjust the baseline per capita indicator. 

FEMA believes that such changes could 

be difficult to implement on an annual 

basis, would be overly complex, and 

could result in confusion for 

stakeholders.97 In contrast, much like 

the adjustment to the baseline per capita 

indicator, FEMA believes that the 

proposed method of adjusting for TTR 

provides the simplest, clearest, and 

most workable method by which to 

adjust the per capita indicator in order 

to ensure that FEMA accurately 

measures a State’s financial capabilities. 

As shown in Table 1, the individual 

States’ per capita indicators would 

range from $1.51 to $3.15. Every State’s 

per capita indicator would increase due 

to the adjustment for increases to the 

CPI–U from 1986 and 1999. However, 

adjusting for TTR would decrease 29 

States’ per capita threshold from the 

base amount, 20 States would see an 

increase in their per capita indicator 

threshold, and 7 States would still have 

a $2.32 adjusted per capita indicator.98

FEMA proposes not to adjust the 

District of Columbia’s per capita 

indicator for TTR. The complex tax and 

Federal appropriation circumstances in 

the District of Columbia, as well as 

Congress’ control over the ability of the 

District to manipulate its own revenues, 

would require impractical and 

potentially inaccurate adjustments in 

the TTR method. For example, Federal 

law prohibits the District from taxing 

non-resident commuters. Additionally, 

evaluating the District of Columbia’s 

TTR is further complicated by the direct 

Federal oversight and appropriation of 

the District’s budget. Accordingly, TTR 

does not provide the additional 

accuracy in determining the District’s 

financial capability as it does for the 

States. Therefore, FEMA would use the 

increased per capita indicator to 

determine the District’s per capita 

threshold, without adjusting for TTR. 

FEMA specifically requests comment on 

possible alternatives to this approach 

that would improve the accuracy of 

FEMA’s fiscal capacity analysis for the 

District. 

Additionally, FEMA is not proposing 

to adjust the per capita indicator for 

TTR for the territories because Treasury 


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99The territories for which Treasury does not 

report TTR include: American Samoa, Guam, the 

Commonwealth of the Northern Mariana Islands, 

Puerto Rico and the U.S. Virgin Islands. 

100U.S. Census Bureau, Population and Housing 

Units Estimates: Frequently Asked Questions 

(available at: https://www.census.gov/programssurveys/popest/about/faq.html) (accessed April 26, 

2019). 

101The Treasury Department publishes updated 

TTR per capita indices two years after the year in 

question. The most recent data available at the time 

of this analysis was 2016 data. 

102PEP estimates are released in July each year 

covering the previous year and all other years back 

to the last decennial census. At the time of this 

analysis, the data for 2018 was the most recent data 

available. 

103FEMA publishes updated per capita indicators 

in the Federal Register each year, with FY 2019 

being the most recent data available at the time of 

this analysis. If this proposed change were adopted, 

FEMA’s annual publication in the Federal Register 

would include a list of TTR-adjusted per capita 

indicators and COA indicators for each State. 

does not report TTR for the territories.99

This would result in the territories 

having the same per capita threshold as 

the average State, which may in practice 

be an over-estimation of the territories’ 

fiscal capacity. However, without a 

published TTR to use, adopting the 

same approach proposed here for the 

States simply is not an option. FEMA 

requests comment on alternative 

approaches that would improve FEMA’s 

fiscal capacity analysis for the 

territories. One such alternative, on 

which FEMA requests comment, would 

be to adjust the per capita indicator for 

the territories by the lowest TTR 

reported for any of the States. 

3. Using Annual Population Data To 

Calculate the States’ COA Indicator 

FEMA proposes to use the U.S. 

Census Bureau’s annual population 

estimates produced under PEP instead 

of the decennial census population data 

when calculating the State COA 

indicator. PEP produces annual 

estimates for years after the last 

published decennial census, as well as 

for past decades. The Census Bureau 

uses existing data series such as births, 

deaths, Federal tax returns, Medicare 

enrollment, and immigration to update 

the decennial census base counts. PEP 

estimates are used in Federal funding 

allocations, in setting the levels of 

national surveys, and in monitoring 

recent demographic changes.100 As 

years pass since the most-recent 

decennial survey, the PEP estimates 

bear less relation to the previous 

numbers and adopt a stronger 

correlation to the results of the next 

decennial survey. In other words, as 

more time elapses between the most 

recently completed decennial survey 

and the next decennial survey, the PEP 

estimates become more current 

measures of the States’ populations than 

the most recently conducted decennial 

survey. 

Using the annual PEP data instead of 

data from the most recent decennial 

census would provide a more 

contemporaneous measure of a State’s 

population to use in FEMA’s calculation 

of State COA indicators. As shown in 

the examples of Nevada and Puerto 

Rico, use of decennial census data can 

lead to inaccurate assessments of a 

State’s current population. Using the 

U.S. Census Bureau’s annual PEP data 

instead of the decennial census data 

would ensure a more current 

assessment. Using the PEP data would 

better enable FEMA to achieve its 

readiness and preparedness missions 

because FEMA would be able to expend 

more attention and resources to large 

catastrophic incidents since less FEMA 

focus and resources would be needed 

for smaller incidents within the States’ 

capabilities. 

4. State COA Indicators After 

Accounting for Proposed Changes 

The following table shows for each 

State: (1) The most recent TTR per 

capita index (2016),101 (2) the proposed 

State per capita indicator after adjusting 

for inflation and TTR, (3) State 

population from the most recent PEP 

estimates (2018),102 (4) the resultant 

proposed State COA indicators, (5) the 

FY2019 State COA indicators based on 

the FY2019 per capita indicator 

($1.50) 103 and 2010 decennial census 

data, and (6) the difference between the 

proposed and baseline State COA 

indicators. 

TABLE 1—PROPOSED STATE COA INDICATORS

State 2016 TTR 

(percentage) 

Proposed 

state per 

capita 

indicator 

(2016 TTR * 

$2.32) 

PEP 

population 

estimate 

(2018) 

Proposed 

state COA 

indicators 

(A) 

FY 2019 

state COA 

indicators— 

baseline 

(B) 

Difference 

(A¥B) 

Percent 

change 

Alabama ........................................................ 73.7 $1.71 4,887,871 $8,358,259 $7,169,604 $1,188,655 16.6 

Alaska ............................................................ 110.5 2.56 737,438 1,887,841 1,065,347 822,494 77.2 

Arizona .......................................................... 76.6 1.78 7,171,646 12,765,530 9,588,026 3,177,504 33.1 

Arkansas ....................................................... 74.2 1.72 3,013,825 5,183,779 4,373,877 809,902 18.5 

California ....................................................... 114.2 2.65 39,557,045 104,826,169 55,880,934 48,945,235 87.6 

Colorado ........................................................ 102 2.37 5,695,564 13,498,487 7,543,794 5,954,693 78.9 

Connecticut ................................................... 136.8 3.17 3,572,665 11,325,348 5,361,146 5,964,202 111.2 

District of Columbia ....................................... 100 2.32 967,171 2,243,837 902,585 1,341,252 148.6 

Delaware ....................................................... 131.7 3.06 702,455 2,149,512 1,346,901 802,611 59.6 

Florida ........................................................... 85.4 1.98 21,299,325 42,172,664 28,201,965 13,970,699 49.5 

Georgia .......................................................... 87.3 2.03 10,519,475 21,354,534 14,531,480 6,823,054 47.0 

Hawaii ............................................................ 99 2.30 1,420,491 3,267,129 2,040,452 1,226,677 60.1 

Idaho ............................................................. 74.5 1.73 1,754,208 3,034,780 2,351,373 683,407 29.1 

Illinois ............................................................ 108.4 2.51 12,741,080 31,980,111 19,245,948 12,734,163 66.2

Indiana ........................................................... 90.7 2.10 6,691,878 14,052,944 9,725,703 4,327,241 44.5 

Iowa ............................................................... 102.5 2.38 3,156,145 7,511,625 4,569,533 2,942,092 64.4 

Kansas .......................................................... 96.3 2.23 2,911,505 6,492,656 4,279,677 2,212,979 51.7 

Kentucky ........................................................ 76.6 1.78 4,468,402 7,953,756 6,509,051 1,444,705 22.2 

Louisiana ....................................................... 85.8 1.99 4,659,978 9,273,356 6,800,058 2,473,298 36.4 

Maine ............................................................. 79.6 1.85 1,338,404 2,476,047 1,992,542 483,505 24.3 

Maryland ........................................................ 117.2 2.72 6,042,718 16,436,193 8,660,328 7,775,865 89.8 

Massachusetts .............................................. 130.4 3.03 6,902,149 20,913,511 9,821,444 11,092,067 112.9 

Michigan ........................................................ 85.6 1.99 9,995,915 19,891,871 14,825,460 5,066,411 34.2 

Minnesota ...................................................... 105 2.44 5,611,179 13,691,277 7,955,888 5,735,389 72.1 

Mississippi ..................................................... 65.5 1.52 2,986,530 4,539,526 4,450,946 88,580 2.0 

Missouri ......................................................... 86.1 2.00 6,126,452 12,252,904 8,983,391 3,269,513 36.4 

Montana ........................................................ 80.2 1.86 1,062,305 1,975,887 1,484,123 491,764 33.1 

Nebraska ....................................................... 107.1 2.48 1,929,268 4,784,585 2,739,512 2,045,073 74.7 


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104FEMA calculated the inflation adjustment by 

comparing the January CPI–U for the base year 1999 

(164.3) with the August CPI–U for 2018 (252.146). 

This resulted in an inflation adjustment factor of 

1.535. FEMA then multiplied the inflation 

adjustment factor of 1.535 by the original minimum 

threshold of $1 million to find a minimum 

threshold of $1,535,000 (rounded). 

105As shown in Table 1 above, with the proposed 

changes to the per capita indicator, Vermont’s State 

COA indicator would be just over $1.30 million. 

Each of the noted territorial jurisdictions COA 

indicators fall well below the proposed $1.535 

million minimum threshold. Therefore, under this 

proposed rule, in cases where the estimated cost of 

assistance meets or exceeds the COA indicators for 

Vermont or the territorial jurisdictions, but is less 

than the $1.535 million minimum threshold, the 

minimum threshold would apply, and the 

estimated cost of assistance for the State or 

Territory would have to meet this higher amount. 

FEMA anticipates that these territorial jurisdictions 

will generally be subject to the annual minimum 

threshold year to year due to their small 

populations. 

TABLE 1—PROPOSED STATE COA INDICATORS—Continued 

State 2016 TTR 

(percentage) 

Proposed 

state per 

capita 

indicator 

(2016 TTR * 

$2.32) 

PEP 

population 

estimate 

(2018) 

Proposed 

state COA 

indicators 

(A) 

FY 2019 

state COA 

indicators— 

baseline 

(B) 

Difference 

(A¥B) 

Percent 

change 

Nevada .......................................................... 91.9 2.13 3,034,392 6,463,255 4,050,827 2,412,428 59.6 

New Hampshire ............................................. 112.9 2.62 1,356,458 3,553,920 1,974,705 1,579,215 80.0 

New Jersey ................................................... 122.8 2.85 8,908,520 25,389,282 13,187,841 12,201,441 92.5 

New Mexico ................................................... 76 1.76 2,095,428 3,687,953 3,088,769 599,184 19.4 

New York ....................................................... 132 3.06 19,542,209 59,799,160 29,067,153 30,732,007 105.7 

North Carolina ............................................... 86.4 2.00 10,383,620 20,767,240 14,303,225 6,464,015 45.2 

North Dakota ................................................. 119.8 2.78 760,077 2,113,014 1,008,887 1,104,127 109.4 

Ohio ............................................................... 91.6 2.13 11,689,442 24,898,511 17,304,756 7,593,755 43.9 

Oklahoma ...................................................... 80.7 1.87 3,943,079 7,373,558 5,627,027 1,746,531 31.0 

Oregon .......................................................... 95.7 2.22 4,190,713 9,303,383 5,746,611 3,556,772 61.9 

Pennsylvania ................................................. 100.4 2.33 12,807,060 29,840,450 19,053,569 10,786,881 56.6 

Rhode Island ................................................. 101.9 2.36 1,057,315 2,495,263 1,578,851 916,412 58.0 

South Carolina .............................................. 75.5 1.75 5,084,127 8,897,222 6,938,046 1,959,176 28.2 

South Dakota ................................................ 100 2.32 882,235 2,046,785 1,221,270 825,515 67.6 

Tennessee ..................................................... 84.9 1.97 6,770,010 13,336,920 9,519,158 3,817,762 40.1 

Texas ............................................................. 96.6 2.24 28,701,845 64,292,133 37,718,342 26,573,791 70.5 

Utah ............................................................... 87.4 2.03 3,161,105 6,417,043 4,145,828 2,271,215 54.8 

Vermont * ....................................................... 91.7 2.13 626,299 1,334,017 938,612 395,405 42.1 

Virginia .......................................................... 105.1 2.44 8,517,685 20,783,151 12,001,536 8,781,615 73.2 

Washington ................................................... 116 2.69 7,535,591 20,270,740 10,086,810 10,183,930 101.0 

West Virginia ................................................. 72 1.67 1,805,832 3,015,739 2,779,491 236,248 8.5 

Wisconsin ...................................................... 95.4 2.21 5,813,568 12,847,985 8,530,479 4,317,506 50.6 

Wyoming ....................................................... 117.9 2.74 577,737 1,582,999 845,439 737,560 87.2 

Puerto Rico ................................................... 100 2.32 3,195,153 7,412,755 5,588,684 1,824,071 32.6 

American Samoa * ......................................... 100 2.32 55,519 128,804 83,279 45,525 54.7 

Guam * ........................................................... 100 2.32 159,358 369,711 239,037 130,674 54.7 

Northern Mariana Islands * ............................ 100 2.32 44,943 104,268 67,415 36,853 54.7 

Virgin Islands * ............................................... 100 2.32 106,405 246,860 159,608 87,252 54.7 

* These jurisdictions are subject to the current $1 million minimum threshold because the State COA indicator falls beneath the minimum threshold. 

B. 44 CFR 206.48(a)(1)—Adjusting the 

$1 Million Minimum Threshold for 

Inflation 

FEMA proposes to increase the 

minimum threshold in the cost of 

assistance estimates factor to account for 

inflation from 1999, and to adjust the 

threshold using CPI–U annually 

hereafter. The proposed rule would 

increase the current minimum threshold 

from $1 million to $1.535 million for FY 

2019.104 As noted above, FEMA has 

never increased the minimum threshold 

since it established the threshold in 

1999, despite a 51 percent increase in 

the CPI–U and corresponding rises in 

the costs to respond to incidents, as well 

as rises in State GDP, expenditures, and 

TTR. Accordingly, while FEMA 

believed in 1999 that $1 million was a 

reasonable amount for even the least 

populous States and Territories to 

handle on their own, FEMA believes 

that the $1 million minimum threshold 

may no longer be an accurate 

benchmark of the least populous States’ 

and Territories’ capabilities to respond 

to incidents. Based on the rises in State 

and Territories’ GDP, expenditures, and 

TTR, FEMA believes that States and 

Territories should be able to handle the 

increased minimum threshold. 

With the proposed changes to the per 

capita indicator and the minimum 

threshold, Vermont, and the territories 

of the U.S. Virgin Islands, Guam, 

American Samoa, and the 

Commonwealth of the Northern Mariana 

Islands would have State COA 

indicators that would fall below the 

proposed minimum threshold.105

Accordingly, these jurisdictions would 

be subject to the $1.535 million 

minimum threshold. 

Importantly, by accounting for 

increases to the CPI–U since 1999 and 

annually moving forward, the minimum 

threshold would be more representative 

of current dollar values and be a more 

accurate indicator of the least populous 

States’ capabilities to respond to 

incidents. The reduction in disaster 

declarations would keep FEMA from 

expending resources and attention on 

incidents within the States’ capabilities, 

allowing FEMA to better prepare for 

large, catastrophic incidents. A higher 

minimum threshold would incentivize 

less populous States and Territories to 

build their response and recovery 

capabilities and mitigate the hazards of 

future incidents. 

In addition to analyzing the effects of 

increasing the minimum threshold to 

account for CPI–U from 1999, FEMA 

analyzed several alternatives to 

increasing the minimum threshold. The 

full results of the analysis are presented 

in the RIA. FEMA analyzed increases 

since 1999 in State general fund 

expenditures (which were used as a 

partial basis for the $1 per capita 

indicator set in 1986), State TTR, and 

State GDP, as potential alternatives to 

the proposed action. 

FEMA also analyzed whether its 

administrative costs for past smaller 

disasters demonstrated a threshold for 

which FEMA’s administrative burden 

exceeded the amount of Federal 

assistance provided. In other words, 

instances in which FEMA’s cost to 

deliver the assistance may have 

exceeded the cost of the assistance 

provided. Administrative costs include 


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106Administrative costs do not include program 

costs associated with mission assignments for 

Direct Federal Assistance, Urban Search and Rescue 

costs, and all other program deliverables and 

assistance such as grants to survivors. 

107See Regulatory Impact Analysis at 47–51. 

108Memorandum for Regional Administrators 

from Jeff Byard, Associate Administrator, Office of 

Response and Recovery, Declaration Factors for 

Local Impact and Recent Multiple Disasters (May 1, 

2019). 

109Memorandum for Regional Administrators 

from Jeff Byard, Associate Administrator, Office of 

Response and Recovery, Declaration Factors for 

Local Impact and Recent Multiple Disasters (May 1, 

2019). 

110 Importantly, the DRRA did not amend section 

401 of the Stafford Act which requires that the 

President determine that an event, to qualify as a 

major disaster warranting Federal assistance, be 

beyond the capabilities of the State and the affected 

local governments. See 42 U.S.C. 5170(a). So, while 

the President must give consideration to the impact 

of an event on local governments, he must also 

determine that the event exceeds the capabilities of 

the State. 

disaster-related personnel costs such as 

salaries, benefits, and travel; the cost of 

tasking another Federal agency to 

support operations (mission 

assignments); technical assistance 

contracts associated with the execution 

of the PA program; and, general 

administrative costs such as leases, 

communications, supplies, and 

equipment that are incurred from 

declaration to disaster closure.106 Given 

the broad scope of items included in 

administrative costs, particularly related 

to personnel, administrative costs are a 

good representation of the overall 

Federal resources and attention that are 

expended on a given disaster. 

Based on the analysis of alternatives, 

FEMA believes that increasing the 

minimum threshold to account for post1999 increases to CPI–U is the best 

alternative for raising the minimum 

threshold because the other alternatives 

would increase the complexity of setting 

the minimum threshold, with few, if 

any, additional benefits. As explained in 

the stand-alone RIA found in the docket 

of this rulemaking,107 while the other 

alternatives may result in modest gains 

in reducing disaster declarations and 

Federal expenditures, those gains would 

be outweighed by the complexity that 

FEMA and stakeholders would 

encounter in implementing these other 

alternatives. Importantly, however, in 

addition to increases in the CPI–U, the 

increases in State expenditures, GDP, 

and TTR, and FEMA’s average 

administrative costs for small disasters 

collectively demonstrate that the current 

$1 million threshold is no longer an 

accurate benchmark for the States’ 

capabilities to respond to disasters on 

their own. Therefore, based on the 

totality of this information, FEMA 

believes an increase to the minimum 

threshold is necessary. 

Accordingly, FEMA proposes to 

amend the minimum threshold to 

account for increases to the CPI–U from 

1999 to present, and annually thereafter. 

The proposed changes would provide 

the simplest and most certain means of 

increasing the minimum threshold, and 

for annual changes to the threshold. The 

proposed use of the CPI–U to increase 

the minimum threshold is also 

consistent with the adjustments to the 

per capita indicator. Additionally, 

adjusting the minimum threshold for 

changes to the CPI–U would better 

reflect current dollar values and the 

States’ incident response capabilities, 

allow FEMA to be better prepared for 

larger, catastrophic incidents, and 

incentivize States to build their 

response capabilities and mitigate 

hazards posed by future incidents, 

thereby helping FEMA achieve its 

mission to make the nation better 

prepared and more resilient. 

C. 44 CFR 206.48(a)(2)–(6)—Other 

Factors 

Section 1232 of the DRRA requires the 

Administrator of FEMA to give greater 

consideration to recent multiple 

disasters or severe localized impacts 

when making disaster declaration 

recommendations to the President, and 

to make corresponding adjustments to 

FEMA’s policies and regulations 

regarding such consideration. The 

current text of 44 CFR 206.48(a)(5) 

provides broad discretion for the 

consideration of multiple disasters 

occurring in the 12-month period prior 

to the event. Consistent with that 

provision and with FEMA’s May 1 

guidance to Regional Administrators, 

directing them to include in their 

recommendations appropriate and 

fulsome information regarding severe 

local impacts and the history of recent 

multiple disasters,108 FEMA is giving 

greater consideration to these factors 

when making disaster declaration 

recommendations. Accordingly, FEMA 

is not proposing to substantively amend 

§ 206.48(a)(5), but requests comment on 

whether a revision of the 12-month time 

limit currently in place is necessary to 

give greater consideration to this factor 

as required by the DRRA. 

Similarly, FEMA proposes not to 

substantively amend the current 

regulatory text for the localized impacts 

factor in § 206.48(a)(2). As noted above, 

FEMA has instructed Regional staff to 

give greater consideration to local 

impacts moving forward 109 and FEMA 

believes that the current regulatory text 

provides FEMA sufficient flexibility to 

provide adequate consideration of local 

impacts while ensuring that FEMA does 

not over step the statutory requirement 

that an event be beyond State 

capability.110

Additionally, with regard to the 

requirements of section 1239 of the 

DRRA that FEMA review all of the 

declaration factors and update them as 

necessary, FEMA does not propose to 

substantively amend the other 

declaration factors at 44 CFR 

206.48(a)(3) (‘‘Insurance coverage in 

force’’), (4) (‘‘Hazard mitigation’’), and 

(6) (‘‘Programs of other Federal 

assistance’’) at this time. FEMA believes 

that the regulatory text for these factors 

already provides adequate consideration 

of important information for FEMA’s 

assessment of a State’s capabilities to 

respond to an event, while also 

providing sufficient flexibility for FEMA 

to account for a variety of circumstances 

across the States. Notably, although 

FEMA is not proposing to substantively 

amend these factors, FEMA may 

consider relevant information submitted 

by a requesting State that is outside the 

scope of the declaration factors listed in 

44 CFR 206.48(a). 

D. 44 CFR 206.48—Minor Technical and 

Grammatical Edits 

FEMA also proposes minor technical 

and corresponding grammatical changes 

to the undesignated introductory 

paragraph and to § 206.48(a) to ensure 

consistent language between the PA 

declaration factors in 44 CFR 206.48(a) 

and the IA factors in 44 CFR 206.48(b). 

FEMA proposes to replace all uses of 

the term ‘‘we’’ in 44 CFR 206.48 with 

‘‘FEMA’’. This would be consistent with 

the IA declaration factors in 44 CFR 

206.48(b). FEMA also proposes minor 

corresponding edits to account for the 

change to the use of ‘‘FEMA’’ to ensure 

proper grammar. 

VI. Regulatory Analysis 

A. Executive Order 12866, As Amended, 

Regulatory Planning and Review; 

Executive Order 13563, Improving 

Regulation and Regulatory Review; and 

Executive Order 13771, Reducing 

Regulation and Controlling Regulatory 

Costs 

Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) direct agencies to assess the 

costs and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 


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111 January 1999 CPI–U was 164.3 and August 

2018 CPI–U was 252.146. Calculation: (252.14 ¥ 

164.3)/164.3 + 1 = 1.535 conversation factor 

(rounded). 1.535 × $1,000,000 = $1,535,000. 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. Executive 

Order 13771 (Reducing Regulation and 

Controlling Regulatory Costs) directs 

agencies to reduce regulation and 

control regulatory costs and provides 

that ‘‘for every one new regulation 

issued, at least two prior regulations be 

identified for elimination, and that the 

cost of planned regulations be prudently 

managed and controlled through a 

budgeting process.’’ 

The Office of Management and Budget 

(OMB) has designated this rule an 

‘‘economically significant regulatory 

action,’’ under section 3(f)(1) of 

Executive Order 12866. Accordingly, 

this rule has been reviewed by OMB. 

This rule is exempt from the 

requirements of Executive Order 13771 

because it has de minimis costs spread 

across all States and territories. See 

OMB’s Memorandum ‘‘Guidance 

Implementing Executive Order 13771, 

Titled ‘Reducing Regulation and 

Controlling Regulatory Costs’’’ (April 5, 

2017). 

FEMA conducted a Regulatory Impact 

Analysis (RIA) to assess the potential 

costs, benefits, and transfers from this 

proposed rule, and it has been found to 

be economically significant under E.O. 

12866. FEMA provides an executive 

summary of the RIA below. For the full 

analysis, please see the RIA posted in 

the docket of this proposed rule on 

regulations.gov. 

FEMA proposes to amend one of the 

factors it considers when recommending 

a major disaster declaration that 

authorizes PA. Specifically, the 

proposed rule would update 44 CFR 

206.48(a)(1), ‘‘Estimated cost of the 

assistance.’’ FEMA proposes four 

associated changes in 44 CFR 206.48(a) 

to conform regulations to Section 1239 

of the Disaster Recovery Reform Act of 

2018 (DRRA). Table 2 provides a 

summary of the impacts of the proposed 

rule. The four proposed changes are: 

(1) Increase the per capita indicator 

from $1.50 to $2.32 to account for 

inflation using Consumer Price Index 

for All Urban Consumers (CPI–U) data 

from 1986 to 1999 because no inflation 

factor was applied during that time 

frame. Adjust the per capita indicator by 

each individual State’s total taxable 

resources (TTR). 

(2) Increase the minimum threshold 

for major disaster declarations that 

authorize PA from $1 million to $1.535 

million to account for inflation since 

1999 and to adjust the threshold by CPI– 

U annually thereafter.111

(3) Use the US Census Bureau’s 

annual population estimates produced 

under the Population Estimates Program 

(PEP) when calculating the individual 

State’s threshold. FEMA’s current 

practice is to use the decennial census 

population data when calculating the 

State COA indicator. 

(4) Make minor technical and 

corresponding grammatical changes to 

the undesignated introductory 

paragraph and to paragraph (a) of 

§ 206.48. 

TABLE 2—SUMMARY OF THE IMPACTS OF THE PROPOSED RULE (2018$) 

Category Summary 

Proposed Changes .............. Replace the per capita indicator of $1.50 with $2.32 to account for inflation from 1986–1999 and then adjust by 

State TTR annually. 

Replace the minimum threshold of $1,000,000 with $1,535,000 and adjust by CPI–U annually. 

Use PEP annual population estimates instead of decennial census data to calculate the State COA indicators. 

Technical and grammatical changes to 44 CFR 206.48(a). 

Affected Population .............. Applicants eligible to submit an application for a PA project, include 56 State and Territorial governments, 573 

Federally recognized Indian Tribal governments, local governments, and certain private nonprofit organizations 

(PNPs). From 2008–2017, 7,456 Applicants would have been impacted by the proposed rule. 

Transfers .............................. $208.76 million annualized and $1.47 billion and $1.78 billion 10-year monetized reduction in transfers to the Applicants from FEMA at 7 and 3 percent discount rates, respectively. 

Cost Savings (due to reduced disaster declaration 

requests and applications).

$62.71 million annualized and $440.45 million and $534.93 million 10-year monetized FEMA costs savings at 7 

and 3 percent discount rates, respectively. 

$8.04 million annualized; and $56.44 million and $68.55 million 10-year monetized; Applicant cost savings at 7 

and 3 percent discount rates, respectively. 

Costs (quantitative) .............. $5,274 and $4,513 annualized; and $37,042 and $38,496 10-year monetized costs to Applicants and FEMA at 7 

and 3 percent discount rates, respectively. 

Costs (qualitative) ................ Applicants would need to invest more in response recovery, and mitigation capabilities. Damaged facilities may 

not be repaired or replaced and could be susceptible to future disasters. 

Benefits (quantitative) .......... No quantitative benefits. 

Benefits (qualitative) ............. Provide FEMA with a more accurate assessment of whether an incident has exceeded an Applicant’s capabilities 

to respond to and recover from an incident. 

Incentivize Applicants to invest more in response, recovery, and mitigation capabilities, and increase overall national preparedness for incidents. 

Allow FEMA to refine its focus and resources on large-scale disasters. 


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112As noted above, Tribal governments may 

directly submit a request for a major disaster 

declaration to FEMA under the Tribal Declarations 

Pilot Guidance, instead of requesting assistance 

through the State. The potential impacts of this 

proposed rule are discussed in more detail below 

and in the RIA. See Section 13 of the RIA. 

Affected Population 

The proposed rule would reduce the 

number of major disaster declarations 

authorizing PA and therefore affect all 

non-Federal entities that are eligible to 

request PA following a Federal major 

disaster declaration. Eligible applicants 

for PA include 50 State and 6 Territorial 

governments, and the District of 

Columbia as well as 573 Federally 

recognized Indian Tribal 

governments,112 local governments, and 

certain PNPs. A disaster declaration is 

done at the State level, but the 

Applicants fill out the forms for PA 

eligibility and to receive funding once 

PA funding is made available through a 

declaration. For simplicity, FEMA refers 

to the affected population as Applicants 

throughout the RIA. If this proposed 

rule had been in effect from 2008–2017, 

7,456 Applicants for 159 PA disasters 

would have been impacted by the 

proposed rule. These Applicants would 

have had a reduction in grant funding, 

including funding and management 

costs for PA, funding and management 

costs for HMGP, and funding and 

management costs for BRIC. These 

Applicants would have also had 

paperwork cost savings for not filling 

out the forms to determine eligibility 

and receive funding. 

Reduction in Disaster Declarations 

As discussed later in this analysis, 

FEMA used data for the PA disasters 

from fiscal years (FY) 2008–2017 to 

estimate how the proposed rule would 

impact the number of PA disasters and 

the funding and costs associated with 

those PA disasters. FEMA used 

historical data on the estimated impacts 

on PA disasters from 2008–2017 as a 

proxy to estimate the impacts over the 

next ten years after this rule becomes 

final and effective. FEMA found there 

were a total of 585 PA disasters over the 

10-year period of analysis, an average of 

59 disasters per year. FEMA estimates 

that there likely would be 159 PA 

disasters that would no longer be 

declared disasters under the proposed 

rule, an average of 16 fewer PA disasters 

declared per year as discussed further in 

the RIA. This represents a 27 percent 

reduction in PA disasters declared from 

2008–2017 under this proposed rule. 

Transfers 

Transfer payments are monetary 

payments from one group to another 

that do not affect the total resources 

available to society. Transfers can have 

significant efficiency effects in addition 

to distributional effects and are not 

included in the estimates of the benefits 

and costs of a regulation. Transfers are 

analyzed in this RIA because grants, i.e. 

those grants made by FEMA for PA, are 

considered transfers. 

The reduction in PA disasters would 

result in a reduction in grant funding to 

the PA Applicants. The reduction in 

funding from these programs equates to 

a reduction in transfers from FEMA to 

the Applicants. FEMA estimates the 

total 10-year undiscounted transfers of 

the proposed rulemaking would be 

$2.09 billion. The total 10-year 

discounted transfers would be $1.47 

billion at a 7 percent discount rate and 

1.78 billion at a 3 percent discount rate, 

with annualized transfers of $208.76 

million at both 7 and 3 percent discount 

rates (Table 3). 

TABLE 3—TOTAL ESTIMATED TRANSFERS OF THE PROPOSED RULE

[2018$] 

Year 

Total 

undiscounted 

reduction 

in transfers 

from FEMA to 

applicants 

Discounted 

7% 3% 

1 ................................................................................................................................................... $208,758,700 $195,101,589 $202,678,350 

2 ................................................................................................................................................... 208,758,700 182,337,933 196,775,097 

3 ................................................................................................................................................... 208,758,700 170,409,284 191,043,783 

4 ................................................................................................................................................... 208,758,700 159,261,013 185,479,401 

5 ................................................................................................................................................... 208,758,700 148,842,068 180,077,088 

6 ................................................................................................................................................... 208,758,700 139,104,736 174,832,125 

7 ................................................................................................................................................... 208,758,700 130,004,427 169,739,927 

8 ................................................................................................................................................... 208,758,700 121,499,464 164,796,046 

9 ................................................................................................................................................... 208,758,700 113,550,901 159,996,161 

10 ................................................................................................................................................. 208,758,700 106,122,337 155,336,078 

Total ...................................................................................................................................... 2,087,587,000 1,466,233,752 1,780,754,055 

Annualized ................................................................................................................................... 208,758,700 208,758,700 

Cost Savings 

The proposed rulemaking would 

result in administrative cost savings for 

FEMA, and paperwork cost savings for 

the Applicants and FEMA due to a 

decrease in the number of PA, BRIC, 

and HMGP applications resulting from 

fewer disaster declarations. A reduction 

in declarations would allow FEMA to 

focus its efforts and resources on larger 

disasters without the complications of 

reallocating response resources from 

multiple smaller scale commitments. 

The 10-year undiscounted FEMA cost 

savings resulting from the proposed rule 

would be $627.10 million ($440.45 

million discounted at 7 percent 

discount rate and $534.92 million at a 

3 percent discount rate; $62.71 million 

annualized at both 7 and 3 percent 

discount rates). FEMA estimates the 10- 

year undiscounted Applicant cost 

savings would be $73.30 million ($51.48 

million at 7 percent and $62.53 million 

at 3 percent; $7.33 million annualized at 

both 7 and 3 percent). The total 10-year 

undiscounted cost savings for both 

FEMA and the Applicants would be 

$700.40 million, because there would be 

fewer requests for disasters to be 

declared and there would be fewer 

Applicants able to apply for relief. The 


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10-year total discounted cost savings 

would be $491.93 million at 7 percent 

and $597.46 million at 3 percent, with 

an annualized cost savings of $70.75 

million (Table 4). 

TABLE 4—TOTAL ESTIMATED COST SAVINGS OF THE PROPOSED RULE

[2018$] 

Year Applicant 

cost savings 

FEMA cost 

savings 

Total 

undiscounted 

cost savings 

Discounted 

7% 3% 

1 ........................................................................................... $8,035,714 $62,710,053 $70,745,767 $66,117,539 $68,685,211 

2 ........................................................................................... 8,035,714 62,710,053 70,745,767 61,792,093 66,684,671 

3 ........................................................................................... 8,035,714 62,710,053 70,745,767 57,749,619 64,742,399 

4 ........................................................................................... 8,035,714 62,710,053 70,745,767 53,971,607 62,856,698 

5 ........................................................................................... 8,035,714 62,710,053 70,745,767 50,440,754 61,025,920 

6 ........................................................................................... 8,035,714 62,710,053 70,745,767 47,140,892 59,248,466 

7 ........................................................................................... 8,035,714 62,710,053 70,745,767 44,056,908 57,522,783 

8 ........................................................................................... 8,035,714 62,710,053 70,745,767 41,174,681 55,847,362 

9 ........................................................................................... 8,035,714 62,710,053 70,745,767 38,481,010 54,220,740 

10 ......................................................................................... 8,035,714 62,710,053 70,745,767 35,963,561 52,641,495 

Total .............................................................................. 80,357,140 627,100,530 707,457,670 496,888,663 603,475,742 

Annualized ........................................................................... ........................ ........................ ........................ 70,745,767 70,745,767 

Costs 

The proposed rule would 

substantively revise the estimated cost 

of the assistance disaster declaration 

factor. The proposed rule would not 

create new factors for FEMA to consider 

when reviewing a request for a PA 

disaster. FEMA would not change its 

current process for updating the per 

capita indicator or PA damage 

thresholds. FEMA’s current practice is 

to update the per capita indicator each 

fiscal year to adjust for inflation using 

the for CPI–U and post the updated 

indicator on the Federal Register and 

FEMA website. The proposed rule 

would also require FEMA to update the 

minimum threshold every year to adjust 

for inflation. This is a new practice that 

FEMA is implementing to more 

accurately gauge a State’s fiscal capacity 

to respond to disasters, as the threshold 

has not been updated since it was 

introduced in 1999. However, FEMA 

already calculates the change in CPI–U 

to apply to the per capita indicator each 

year. FEMA would apply the same 

change in CPI–U used to update the per 

capita indicator to the minimum 

threshold. The proposed rule would 

require FEMA to adjust the per capita 

indicator for each State’s TTR, which is 

a new practice. FEMA estimates it 

would cost $12 per year for a FEMA 

employee to adjust the per capita 

indicator by TTR annually. FEMA would continue to post the 

updated per capita indicator each fiscal 

year and would not require any 

additional annual calculations or data 

requirements from the Applicants. The 

proposed rule would impose a one-time 

cost of $39,545 to the Applicants to 

familiarize themselves with the 

proposed changes the first year (Table 

5). The minimum threshold would now 

be published yearly along with the per 

capita indicator. Because Applicants 

already look up the per capita indicator, 

FEMA does not expect additional costs 

associated with also looking up the 

minimum threshold. The proposed 

changes could impose qualitative costs 

that FEMA was unable to quantify. 

Qualitative costs are discussed in the 

RIA. Transferring the costs of PA 

disasters to Applicants would require 

the Applicants to invest more in 

response, recovery, and mitigation 

capabilities. It is possible that without 

Federal assistance, Applicants may opt 

to not repair damaged facilities or pay 

for other recovery efforts. Damaged 

facilities that are not repaired or 

replaced could be more susceptible to 

subsequent incidents in the future. 

Additionally, damaged facilities that are 

not repaired or replaced may no longer 

be used, which could be a significant 

loss of infrastructure to small 

governments who might opt to not 

repair damaged facilities due to fiscal 

limitations. 

TABLE 5—TOTAL ESTIMATED COSTS OF THE PROPOSED RULE

[2018$] 

Year Applicant 

costs FEMA costs 

Total 

undiscounted 

costs 

Discounted 

7% 3% 

1 ........................................................................................... $39,545 $12 $39,557 $36,969 $38,405

2 ........................................................................................... 0 12 12 10 11 

3 ........................................................................................... 0 12 12 10 11 

4 ........................................................................................... 0 12 12 9 11 

5 ........................................................................................... 0 12 12 9 10 

6 ........................................................................................... 0 12 12 8 10 

7 ........................................................................................... 0 12 12 7 10 

8 ........................................................................................... 0 12 12 7 9 

9 ........................................................................................... 0 12 12 7 9 

10 ......................................................................................... 0 12 12 6 9 

Total .............................................................................. 39,545 120 39,665 37,042 38,496 


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TABLE 5—TOTAL ESTIMATED COSTS OF THE PROPOSED RULE—Continued 

[2018$] 

Year Applicant 

costs FEMA costs 

Total 

undiscounted 

costs 

Discounted 

7% 3% 

Annualized ........................................................................... ........................ ........................ ........................ 5,274 4,513 

Benefits 

FEMA was unable to quantify benefits 

of the proposed regulatory changes due 

to a lack of data on future impacts of 

adjusting declaration factors. FEMA 

instead focused on proposed regulatory 

changes that would provide FEMA with 

a more accurate assessment of whether 

an incident has exceeded an Applicant’s 

capabilities to respond to and recover 

from an incident. This is because the 

minimum threshold and per capita 

indicator have not consistently been 

updated to account for inflation, and not 

based on a State’s fiscal capacity to 

respond. The proposed changes would 

ensure that these factors are taken into 

account. FEMA believes that the 

proposed changes also would 

incentivize Applicants to invest more in 

response, recovery, and mitigation 

capabilities, since Federal assistance 

would be focused on larger-scale 

disasters, and Applicants will have 

more responsibility to ensure they are 

adequately equipped to handle smaller 

disasters. This would provide a better 

distribution of responsibilities between 

the Applicants and the Federal 

Government. These incentives would 

increase overall national preparedness 

for incidents. In addition, FEMA 

believes these changes to the PA 

declaration factors would result in a 

reduction in the number of declarations 

for smaller incidents, allowing FEMA to 

refine its focus and resources on larger 

incidents without the complications of 

reallocating response resources from 

multiple smaller-scale commitments, 

that States and local governments would 

have the capacity to manage without 

Federal assistance. FEMA requests 

public comment on the ability of 

Applicants to invest more in response, 

recovery, and mitigation capabilities. 

Summary 

Table 6 provides a summary of the 

annual and total quantified costs, cost 

savings, and reduction in transfers by 

category after implementation of the 

proposed rule, and Table 7 provides the 

A–4 accounting summary. 

TABLE 6—SUMMARY OF TRANSFERS AND COST SAVINGS OF THE PROPOSED RULE

Transfer, cost, or cost savings item Annual 

undiscounted 

Reduction in Transfers 

PA Funding ................................................................................................................................................................................... $144,534,939 

HMGP Funding ............................................................................................................................................................................. 33,330,171 

BRIC Funding ............................................................................................................................................................................... 7,267,390 

PA Management Cost Funding .................................................................................................................................................... 17,344,193 

HMGP Management Cost ............................................................................................................................................................ 4,999,526 

Funding 

BRIC Management Cost Funding ................................................................................................................................................ 1,282,481 

Total Reduction in Transfers ................................................................................................................................................. 208,758,700 

Cost Savings 

Applicant Paperwork Cost Savings .............................................................................................................................................. 8,035,714 

FEMA Administrative Cost ........................................................................................................................................................... 62,409,381 

Savings 

FEMA Paperwork Cost Savings ................................................................................................................................................... 300,672 

Total FEMA Cost Savings ............................................................................................................................................................ 62,710,053 

Total Cost Savings (Applicants and FEMA) ......................................................................................................................... 70,745,767 

Costs 

Applicant Costs.

Year 1 .................................................................................................................................................................................... 39,545 

Years 2–10 ............................................................................................................................................................................ 0 

FEMA Costs ................................................................................................................................................................................. 12 

Total Costs, Year 1 ............................................................................................................................................................... 39,557 

Total Costs, Years 2–10 ....................................................................................................................................................... 12 


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TABLE 7 A–4 ACCOUNTING STATEMENT

[$2018] 

Period of Analysis: 2008 to 2017 

Category 7 percent discount 

rate 

3 percent discount 

rate 

Source citation 

(RIA, preamble, etc.) 

BENEFITS: 

Annualized Quantified ......................................................................... N/A N/A 

Qualitative ............................................................................................ • Provide FEMA with a more accurate 

assessment of whether an incident 

exceeds Applicant capabilities. 

RIA Section 12. 

• Allow FEMA to focus efforts and 

resources on larger incidents. 

• Provide better distribution of 

responsibilities between Applicants and 

the Federal Government. 

COSTS: 

Annualized Monetized $millions/year .................................................. 0.005274 0.004513 RIA Section 8. 

Annualized quantified ................................................................................. N/A N/A 

Qualitative ............................................................................................ • Applicants would need to invest more 

in response, recovery, and mitigation 

capabilities. 

• Damaged facilities may not be 

repaired or replaced, and could be 

susceptible to future disasters. 

COST SAVINGS: 

Annualized Monetized $millions/year .................................................. 70.75 70.75 RIA Section 8. 

TRANSFERS: 

Annualized Monetized $millions/year .................................................. 208.76 208.76 RIA Section 9. 

From/To ............................................................................................... Reduction in transfers from FEMA to 

PA Applicants 

RIA Section 9. 

Category Effects Source citation 

(RIA, preamble, etc.) 

State, Local, and/or Tribal Government ..................................................... Included in the Cost Savings is $5.88 

million annual paperwork cost savings 

to Applicants. Included in the Transfers 

is $8.48 million in PA funding that 

Tribal Applicants would not have 

received from 2008–20187. However, 

$7.11 of that funding would have 

potentially been available for Tribal 

governments had that requested a 

disaster declaration under the Tribal 

Declarations Pilot Guidance. 

RIA. 

Small business ............................................................................................ There were 7,456 unique Applicants for 

the 159 removed PA disasters from 

2008–2017. Using a sample size of 

380, FEMA found that 79% were likely 

to be small entities (5,890 Applicants). 

The average PA funding received per 

small entity in the sample was 

$168,046, with a range from a low of 

$0 to a high of $20.65 million. If the 

changes in the proposed rule were in 

effect, these entities would not have 

received this PA funding. 

RFA (IRFA). 

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

Growth ........................................................................................................ None. 


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113 January 1999 CPI–U of 164.3 and August 2018 

CPI–U of 252.146. Calculation: (252.146¥164.3)/ 

164.3 = 53.5% (rounded). 

114To be an eligible private nonprofit applicant, 

the private nonprofit must show that it has: A 

current ruling letter from the U.S. Internal Revenue 

Service granting tax exemption under sections 

501(c), (d), or (e) of the Internal Revenue Code of 

1954, or documentation from the State 

substantiating it is a non-revenue producing, 

nonprofit entity organized or doing business under 

State law. Additionally, prior to determining 

whether the private nonprofit is eligible, FEMA 

must first determine whether the private nonprofit 

owns or operates an eligible facility. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires agency 

review of proposed and final rules to 

assess their impact on small entities. 

When an agency promulgates a notice of 

proposed rulemaking under 5 U.S.C. 

553, the agency must prepare an initial 

regulatory flexibility analysis (IRFA) 

unless it determines and certifies 

pursuant to 5 U.S.C. 605(b) that a rule, 

if promulgated, would not have a 

significant impact on a substantial 

number of small entities. However, 

FEMA is publishing this IRFA to aid the 

public in commenting on the potential 

small entity impacts of the proposed 

requirements in this NPRM. FEMA 

invites all interested parties to submit 

data and information regarding the 

potential direct economic impacts on 

small entities that would result from the 

adoption of this NPRM. FEMA will 

consider all comments received in the 

public comment process. 

In accordance with the Regulatory 

Flexibility Act (RFA), 5 U.S.C. 601 et 

seq., as amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (Pub. L. 104–121, 110 Stat. 857), 

FEMA prepared this IRFA to examine 

the impacts of the proposed rule on 

small entities. A small entity may be: A 

small independent business, defined as 

independently owned and operated, is 

organized for profit, and is not 

dominant in its field per the Small 

Business Act (5 U.S.C. 632); a small notfor-profit organization (any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field); or a small 

governmental jurisdiction (locality with 

fewer than 50,000 people) per 5 U.S.C. 

601–612. 

FEMA has discussed most of these 

issues in other sections of the NPRM 

and in the stand-alone RIA found in the 

docket of this rulemaking. In this 

section, FEMA will address the issues 

specific to the analysis of small entities 

that have not been addressed elsewhere. 

1. A description of the reasons why 

action by the agency is being 

considered. 

FEMA is proposing to amend the 

estimated cost of the assistance factor, 

including the minimum threshold, in 44 

CFR 206.48. Pursuant to 44 CFR 206.48, 

FEMA considers several factors when 

determining whether to recommend that 

the President declare a major disaster 

authorizing the PA program. Since 1986, 

FEMA has evaluated the estimated cost 

of Federal and non-Federal public 

assistance against the statewide 

population and used a per capita dollar 

amount (set at $1 in 1986) as an 

indicator that a disaster may warrant 

Federal assistance. FEMA did not 

increase the indicator until 1999, when 

it began adjusting for inflation in 1999 

and annually thereafter. Also, in 1999, 

FEMA established a $1 million 

minimum threshold, meaning it would 

not recommend that the President 

authorize the PA program unless there 

was at least $1 million in PA damage, 

which FEMA believed was a level of 

damage even the least populous States 

could handle with their own resources. 

FEMA has never increased this 

threshold. The current per capita 

indicator and minimum threshold do 

not provide an accurate measure of 

States’ capabilities to respond to 

disasters. The lack of increases to the 

per capita indicator from 1986 to 1999 

undercut the value of this factor as an 

indicator of State capacity given the 

inflation increases during that time. 

With respect to the minimum threshold, 

a 1999 determination by FEMA that all 

States could handle at least $1.0 million 

in damages with their own resources is 

outdated given the 53.5 percent increase 

from 1999 in the inflation rate over the 

last 20 years and rising State budgets 

and expenditures.113

Additionally, FEMA proposes to use 

the U.S. Census Bureau’s annual 

population estimates produced under 

the PEP instead of the decennial census 

population data when calculating the 

State COA indicators. These changes 

would ensure a more accurate 

assessment of an individual State’s 

financial capability to respond to and 

recover from a disaster, which would 

better enable FEMA to achieve its 

readiness and preparedness missions by 

allowing FEMA to expend more 

attention and resources on disasters that 

exceed the States’ capabilities. 

2. A succinct statement of the 

objectives of, and legal basis for, the 

proposed rule. 

Section 1239 of DRRA directs FEMA 

to review the factors it considers when 

evaluating a request for a major disaster 

declaration, specifically the estimated 

cost of assistance factor, and to initiate 

rulemaking to update the declaration 

factors. FEMA proposes to amend 44 

CFR 206.48(a) to make changes to the 

estimated cost of assistance factor. 

FEMA is proposing to revise the cost 

of assistance estimates factor in 44 CFR 

206.48(a)(1) by increasing the per capita 

indicator to account for inflation from 

1986 to 1999 and adjusting the 

individual States’ indicators by their 

TTR, and by increasing the minimum 

threshold by accounting for inflation 

from 1999 to 2019, and annually 

thereafter. FEMA also proposes to use 

the U.S. Census Bureau’s annual 

population estimates produced under 

PEP instead of the decennial census 

population data. These changes would 

provide FEMA with a better informed 

and more accurate assessment of 

whether an incident has exceeded State 

capabilities when it makes its 

recommendations to the President; 

incentivize States to invest more in 

response, recovery, and mitigation 

capabilities, which would provide a 

better distribution of responsibilities 

between the States and the Federal 

Government and better overall national 

preparedness for disasters; and the 

associated reductions in declarations of 

smaller incidents would allow FEMA to 

better focus its efforts and resources on 

large disasters without the 

complications of reallocating resources 

from multiple smaller-scale 

commitments. 

3. A description of and, where 

feasible, an estimate of the number of 

small entities to which the rule will 

apply. 

The proposed rule directly affects all 

Applicants that are eligible to request 

PA under a Federal major disaster 

declaration authorizing PA. Eligible 

Applicants for PA include: State and 

Territorial governments, including the 

District of Columbia, American Samoa, 

the Commonwealth of the Northern 

Mariana Islands, Guam, Puerto Rico, 

and the U.S. Virgin Islands; federally 

recognized Indian Tribal Governments, 

including Alaska Native villages and 

organizations; local governments; and 

certain private nonprofits.114

FEMA reviewed the PA disasters that 

it identified that likely would not have 

been declared from 2008–2017 due to 

the proposed rule, as presented in Table 

8–1 in Section 8 of the stand-alone RIA 

found in the docket of this rulemaking, 

to estimate the number of small entities 

to which the proposed rule would 

apply. For each of the 159 PA disasters 

removed, FEMA used PA data in 

FEMA’s Enterprise Data Warehouse 

(EDW) database to identify the 

Applicants for each of the PA disasters. 


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115FEMA used Slovin’s formula to determine the 

sample size. Using a 95 percent confidence interval, 

a sample size of 380 recipients and subrecipients is 

sufficient. Slovin’s formula = N/(1+Ne∧2) = 7,456/ 

(1 + 7,456 * (0.05∧2)) = 379.633, rounded up to 380. 116 ‘‘Public Assistance Program’’, 1660–0017 can 

be found at https://www.reginfo.gov/public/do/ 

PRAViewICR?ref_nbr=201902-1660-001. The most 

recently approved ICR at the time of this analysis 

was ICR Reference Number 201902–1660–001. ‘‘The 

Declaration Process: Requests for Preliminary 

Damage Assessment (PDA), Requests for 

Supplemental Federal Disaster Assistance, Appeals, 

and Requests for Cost Share Adjustments’’, 1660– 

0009 can be found at https://www.reginfo.gov/ 

public/do/PRAViewICR?ref_nbr=201905-1660-003. 

The most recently approved ICR at the time of this 

analysis was ICR Reference Number 201905–1660– 

003. 

FEMA found there were 7,456 unique 

Applicants for the 158 PA disasters. 

FEMA selected a random sample of 

383 Applicants from the 7,456 unique 

Applicants to estimate the percentage 

that are small entities.115 The term 

‘‘small entities’’ includes small 

businesses that meet the Small Business 

Administration (SBA) size standard for 

small business concerns at 13 CFR 

121.201, not-for-profit organizations that 

are independently owned and operated 

and are not dominant in their fields, and 

governmental jurisdictions with 

population of less than 50,000. FEMA 

researched and found data and 

information on 383 randomly sampled 

Applicants. FEMA found that of the 383 

Applicants, 25 were classified as State 

governments, 312 were local 

governments, 3 were Tribal 

governments, and 43 were nonprofits. 

FEMA removed the 3 Tribal 

governments from the sample as they 

are sovereign entities and are not 

covered by the RFA. State governments 

are not considered small entities 

because they have populations greater 

than 50,000. For the Applicants 

classified as local governments, FEMA 

used 2010 decennial Census Bureau 

population data to determine the 

Applicant population size. Of the 312 

local governments, 259 (or 83 percent) 

had populations below 50,000 and 

would be considered as small entities. 

For nonprofit Applicants, FEMA 

reviewed the nonprofit’s website 

utilizing an open source database 

(Manta.com) and any other publicly 

available information to determine the 

size of the nonprofit and ownership. 

FEMA researched the 43 private 

nonprofits and found that all of them 

were independently owned and 

operated and are not dominant in their 

field. Therefore, FEMA assumed all 43 

private nonprofits were likely to be 

small entities. Table 8 summarizes the 

findings of the small entity threshold 

analysis. 

TABLE 8—SUMMARY OF APPLICANTS IN SAMPLE

Type of recipient or subrecipient 

Exceed 

small entity 

threshold 

Below 

small entity 

threshold 

Total 

State Government ........................................................................................................................ 25 0 25 

Local Government ....................................................................................................................... 53 259 312 

Private Nonprofits ........................................................................................................................ 0 43 43 

Total ............................................................................................................................................. 78 302 380 

Percentage ................................................................................................................................... 21% 79% 100% 

Of the 380 Applicants, FEMA found 

that 302 entities were small as defined 

by the SBA thresholds. Therefore, 

FEMA estimates that 79% of the total 

7,456 Applicants of PA were small 

entities (5,890 Applicants were small 

entities). The 302 sampled small entities 

received a total of $50.75 million in PA 

funding for the disasters removed from 

2008–2017 according to FEMA’s EDW 

database. If the changes in the proposed 

rule were in effect, these entities would 

not have received this PA funding. The 

average PA funding received per small 

entity in the sample was $168,046 over 

the 10-year period. The PA funding a 

small entity received ranged from a low 

of $0 to a high of $20.65 million. Of the 

302 small entities, 4 received $0 in PA 

funding. FEMA welcomes any data or 

comments from the public on the 

number of small entities that may be 

impacted by this proposed rule an any 

impacts to those small entities. 

4. A description of the projected 

reporting, recordkeeping and other 

compliance requirements of the 

proposed rule, including an estimate of 

the classes of small entities which will 

be subject to the requirement and the 

type of professional skills necessary for 

preparation of the report or record. 

The proposed rule would call for a 

revision of a collection of information 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501–3520). This 

proposed rule would call for 

amendments to the existing collection 

requirements previously approved 

under the collections of information 

(COI) with OMB Control Numbers 

1660–0009 and 1660–0017.116 The costs 

associated with COI 1660–0009 include 

the time and cost burden for an 

Applicant to request a disaster 

declaration. A request for a disaster 

declaration comes from the State level. 

There is no burden for small entities 

included in COI 1660–0009, as the 

burden to complete FEMA form 010–0– 

13 is completed by the equivalent of a 

State Government Chief Executive and a 

State Administrative Support Worker. 

Therefore, there is no paperwork burden 

impact to small entities for COI 1660– 

0009. 

The costs associated with COI 1660– 

0017 include the time and cost burden 

for Applicants to provide FEMA 

information that is required for PA 

program eligibility determinations, 

grants management, and compliance 

with other Federal laws and regulations. 

For the 159 PA disasters removed from 

2008–2017 from this proposed rule, 

there would be a reduction in 

paperwork burden for Applicants that 

applied for the PA program, as covered 

by COI 1660–0017. There would be a 

reduction in respondents for FEMA 

Forms 009–0–49, 009–0–91, 009–0–91A, 

009–0–91B, 009–0–91C, 009–0–91D, 

009–0–120, 009–0–121, 009–0–123, 

009–0–124, 009–0–125, 009–0–126, 

009–0–127, 009–0–128, and 009–0–141. 

The number of respondents would not 

change for FEMA Form 009–0–111, 

State Administrative Plan and State 

Plan Amendments (no form), Request 

for Appeals and Recommendation (no 

form), and Requests for Arbitration and 

Recommendation resulting from 

Hurricanes Katrina or Rita (no form), as 

these forms are not impacted by the 

proposed rule. 

The burden per response varies by 

form (see Table 9 in Section E, 

Paperwork Reduction Act of 1995). The 

number of forms each Applicant fills 

out varies by Applicant and by disaster. 

If an Applicant fills out every form 

impacted by this proposed rule, the 

maximum burden per Applicant is 11.4 


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117State Annual Personal Income, 2018 

(Preliminary) and State Quarterly Personal Income, 

4th Quarter 2018, Table 1: Personal Income, 

Population, and Per Capita Personal Income, by 

State and Region, 2017–2018, https://www.bea.gov/ 

system/files/2019-03/spi0319.pdf. 

118 Disaster Assistance; Subpart C, the Declaration 

Process and State Commitments, 51 FR 13333, Apr. 

18, 1986, found at http://cdn.loc.gov/service/ll/ 

fedreg/fr051/fr051075/fr051075.pdf. FEMA began 

using $1 per capita informally in 1986. Revisions 

were made to the BEA 1983 PCPI after publication 

of the proposed 1986 rule. FEMA used the PCPI of 

$11,687 to maintain consistency with the data used 

at the time of establishing the per capita indicator. 

hours (found using the ‘‘Average Hourly 

Burden’’ column in Table 9, excluding 

those forms or items not impacted by 

the proposed rule). Therefore, small 

entities would have a maximum 

reduction of 11.4 hours of paperwork 

burden for each PA disaster removed 

due to the proposed rule. FEMA 

previously estimated that 79% of the 

total 7,456 Applicants of PA for the 159 

removed PA disasters were small 

entities (5,890 Applicants were small 

entities). If all 5,890 small entity 

Applicants had filled out every form 

impacted by the proposed rule, there 

would have been a reduction in 

paperwork burden of 67,146 hours 

(5,890 small entities × 11.4 hours) from 

2008–2017. There are no additional 

reporting, recordkeeping, or other 

compliance requirements resulting from 

this proposed rule. 

5. An identification, to the extent 

practicable, of all relevant Federal rules 

which may duplicate, overlap or conflict 

with the proposed rule. 

There are no relevant Federal rules 

that may duplicate, overlap, or conflict 

with this proposed rule. 

6. A description of any significant 

alternatives to the proposed rule which 

accomplish the stated objectives of 

applicable statutes and which minimize 

any significant economic impact of the 

proposed rule on small entities. 

FEMA considered several alternatives 

to the proposed changes to the per 

capita indicator and the minimum 

threshold. The alternatives are 

described in more detail in Section 15 

of the stand-alone RIA found in the 

docket of this rulemaking. Because PA 

is approved at the State level, this 

proposed rule would only directly affect 

States. Small entities would be 

indirectly affected by a reduction in 

declared disasters at the State level, but 

FEMA is unable to address the impacts 

to small entities directly. A summary of 

those alternatives follows. 

FEMA considered two alternatives to 

adjusting the per capita indicator: 

adjusting the per capita indicator by 

PCPI and adjusting the per capita 

indicator by PCPI and then adjusting by 

TTR. The preliminary estimate for 2018 

US PCPI is $53,712.117 FEMA 

established the per capita indicator at $1 

in 1986 based on the 1983 US PCPI, 

which was the latest available published 

information at the time. The PCPI used 

to set the original per capita indicator 

was $11,687.118 PCPI increased by 360 

percent from 1983 to 2018 (($53,712– 

$11,687)/$11,687). FEMA used the PCPI 

estimate of $11,687 from the 1986 

proposed rulemaking as this was the 

data FEMA used to set the original per 

capita indicator. Applying the increase 

in PCPI to the original per capita 

indicator of $1 would result in a per 

capita indicator of $4.60. The per capita 

indicator alternatives resulted in per 

capita indicators that were higher than 

the proposed changes, which would 

result in more PA disasters that would 

not have exceeded the proposed 

thresholds from 2008–2017. Fewer PA 

disasters would result in more small 

entities impacted by the proposed rule, 

since fewer declared disasters would 

lead to a reduction in Public Assistance 

provided to local governments and 

Private Non-Profits within each State. 

FEMA rejected the PCPI-based per 

capita indicator thresholds because 

FEMA believed the resulting per capita 

indicators may be too high for some 

States to meet. Moreover, the potentially 

large changes to PCPI from year to year, 

in comparison to changes to the CPI–U, 

could result in instability and 

uncertainty in what the per capita 

indicator may be each year for 

individual States and make it more 

difficult for States to plan. 

FEMA considered four alternatives to 

adjusting the minimum threshold using 

CPI–U: Using the change in GDP, State 

expenditures, or TTR to adjust the 

minimum threshold, or using FEMA 

administrative costs to calculate a 

minimum threshold for which FEMA’s 

administrative burden exceeded the 

amount of Federal assistance provided. 

The minimum threshold alternatives 

resulted in minimum thresholds that 

were higher than the proposed 

minimum threshold and would have led 

to a 1 percent increase in the PA 

disasters that would not have exceeded 

the thresholds. Fewer PA disasters 

could result in more small entities 

impacted by the proposed rule. FEMA 

rejected adjusting the minimum 

threshold using the change in GDP, 

State expenditures, or TTR because the 

alternatives increase the complexity of 

calculating the threshold, but have little 

additional impact on the reduction in 

total PA disasters. 

FEMA rejected using administrative 

costs to calculate a minimum threshold 

because FEMA was unable to derive a 

specific dollar value of estimated PA 

obligations at which the proportion of 

administrative costs relative to PA 

obligations could justify that a 

prospective minimum threshold be set 

at that amount. Based on FEMA’s 

analysis of available information across 

all PA disasters in the past ten years, 

there is no specific size of PA disaster 

at which point administrative costs 

exceed the amount of PA assistance, or 

where excessive administrative costs 

essentially renders such PA assistance 

ineffectual from a Federal cost 

standpoint. 

FEMA considered the following two 

alternatives that would have a smaller 

impact on small entities. 

(a) No Regulatory Action 

FEMA considered not proposing the 

minimum threshold and per capita 

indicator regulatory changes in this 

proposed rule. FEMA rejected this 

alternative because section 1239 of the 

DRRA directs FEMA to review the 

factors it considers when evaluating a 

request for a major disaster declaration, 

specifically the estimated cost of 

assistance factor, and to initiate 

rulemaking to update the declaration 

factors. Additionally, the lack of 

increases to the per capita indicator 

from 1986 to 1999 undercuts the value 

of this factor as an indicator of State 

capacity given the increases in inflation 

during that time. For the minimum 

threshold, the lack of an increase since 

1999 has prevented this factor from 

keeping pace with inflation, and rising 

State budgets and resources. By not 

proposing the per capita indicator and 

minimum threshold regulatory changes 

in the proposed rule, FEMA would be 

relying upon per capita indicator and 

minimum threshold factors that are no 

longer adequate measures of a State’s 

capability to respond to and recover 

from a disaster. The no regulatory action 

alternative would result in a greater 

likelihood that the President declares 

major disaster declarations for relatively 

small incidents that a more accurate 

assessment would find is within a 

State’s financial capabilities to respond 

to on its own. 

(b) Population Alternative 

FEMA considered continuing to use 

the US Census Bureau’s decennial 

census population estimates instead of 

the proposed PEP annual estimates. 

FEMA found that using the decennial 

populations instead of the PEP annual 

estimates would have resulted in a 

reduction of 148 PA disasters from 


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2008–2017, an average of 15 per year. 

This is a difference of 10 disasters from 

when FEMA used the proposed PEP 

annual populations in the analysis. This 

difference was a result of the States 

having a higher population with the PEP 

annual population estimates compared 

to the decennial population, and 

therefore a higher State COA indicator. 

FEMA rejected this alternative 

because FEMA’s reliance on population 

data from the most recent decennial 

survey can lead to an imprecise 

assessment of a State’s capabilities to 

respond to and recover from a disaster 

on its own. Decennial population data 

can lead to an inaccurate per capita 

indicator for States experiencing rapid 

changes in population. This could result 

in a greater likelihood that the President 

declares major disaster declarations for 

relatively small incidents that are 

within a State’s financial capabilities to 

respond to on its own after it has 

experienced rapid population growth, 

or, conversely, a likelihood that the 

President does not declare major 

disaster declarations for incidents that 

may actually exceed a State’s 

capabilities to respond to on its own 

where that State’s population has 

rapidly decreased. 

More detailed information on the 

alternatives can be found in Section 15 

of the stand-alone RIA found in the 

docket of this rulemaking. 

7. Conclusion 

FEMA is interested in the potential 

impacts of the proposed rule on small 

entities and requests public comment on 

these potential impacts. If you think that 

this rule will have a significant 

economic impact on you, your business, 

or your organization, please submit a 

comment to the docket at the address 

under ADDRESSES in the rule. In your 

comment, explain why, how, and to 

what degree you think this rule will 

have an economic impact on you. FEMA 

is also interested in less burdensome 

alternatives for small entities. If you 

know of less burdensome alternatives, 

please include them in your comment. 

C. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more (adjusted annually 

for inflation) in any one year, and before 

promulgating any final rule for which a 

general notice of proposed rulemaking 

was published, the agency shall prepare 

a written statement’’ detailing the effect 

on State, local, and tribal governments 

and the private sector. FEMA has 

determined that this proposed rule can 

be excluded from this assessment as the 

proposed rule meets the criteria set forth 

in 2 U.S.C. 1503(4), which states, ‘‘This 

chapter shall not apply to . . . any 

provision in a proposed or final Federal 

regulation that— . . . (4) provides for 

emergency assistance or relief at the 

request of any State, local, or tribal 

government or any official of a State, 

local, or tribal government.’’ Therefore, 

no actions are deemed necessary under 

the provisions of the Unfunded 

Mandates Reform Act of 1995. 

D. National Environmental Policy Act of 

1969 (NEPA) 

Under the National Environmental 

Policy Act of 1969 (NEPA), as amended, 

42 U.S.C. 42 U.S.C. 4321 et. seq., an 

agency must prepare an environmental 

assessment or environmental impact 

statement for any rulemaking that 

significantly affects the quality of the 

human environment. FEMA has 

determined that this rulemaking does 

not significantly affect the quality of the 

human environment and consequently 

has not prepared an environmental 

assessment or environmental impact 

statement. 

Rulemaking is a major Federal action 

subject to NEPA. Categorical exclusion 

A3 included in the list of exclusion 

categories at Department of Homeland 

Security Instruction Manual 023–01– 

001–01, Revision 01, Implementation of 

the National Environmental Policy Act, 

Appendix A, issued November 6, 2014, 

covers the promulgation of rules, 

issuance of rulings or interpretations, 

and the development and publication of 

policies, orders, directives, notices, 

procedures, manuals, and advisory 

circulars if they meet certain criteria 

provided in A3(a–f). This proposed rule 

amends an existing regulation without 

changing its environmental effect, 

which meets Categorical Exclusion 

A3(d). This proposed rule is a narrowly 

crafted revision to FEMA’s existing 

regulations updating the criteria that 

FEMA considers when recommending 

an area eligible for PA under a major 

disaster declaration. The proposed rule 

is not part of any larger regulatory 

action. Further, there are no 

extraordinary circumstances present 

that would create the potential for a 

significant environmental impact. 

Therefore, each of the conditions for 

application of categorical exclusion 

A3(d) is satisfied, and this action is 

categorically excluded from further 

NEPA review. 

Because no other extraordinary 

circumstances have been identified, this 

rule does not require the preparation of 

either an EA or an EIS as defined by 

NEPA. See Department of Homeland 

Security Instruction Manual 023–01– 

001–01, Revision 01, Implementation of 

the National Environmental Policy Act, 

section (V)(B)(2). 

E. Paperwork Reduction Act of 1995 

Under the Paperwork Reduction Act 

of 1995, as amended, 44 U.S.C. 3501– 

3520, an agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless the agency obtains approval from 

the Office of Management and Budget 

(OMB) for the collection and the 

collection displays a valid OMB control 

number. See 44 U.S.C. 3506, 3507. This 

rulemaking contains a collection of 

information, as defined by the 

Paperwork Reduction Act of 1995, as 

amended, 44 U.S.C. 3501–3520. This 

action contains proposed amendments 

to the existing information collection 

requirements previously approved 

under OMB Control Number 1660–0009 

and 1660–0017. As required by the 

Paperwork Reduction Act of 1995, 

FEMA has submitted these proposed 

collection amendments to OMB for its 

review. 

Collection of Information Number 

1660–0009 

Title: The Declaration Process: 

Requests for Preliminary Damage 

Assessment (PDA), Requests for 

Supplemental Federal Disaster 

Assistance, Appeals, and Requests for 

Cost Share Adjustments. 

OMB Control Number: 1660–0009. 

Type of information collection: 

Revision of a currently approved 

collection. 

Form Numbers: FEMA Forms 010–0– 

13 and 009–0–140 (used by FEMA 

personnel or contractors only). 

Summary of the Collection of 

Information: When a disaster occurs in 

a State, the Governor of the State or the 

Acting Governor in his/her absence, 

may request a major disaster declaration 

or an emergency declaration using 

FEMA Form 010–0–13. The information 

obtained by joint Federal, State, and 


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local preliminary damage assessments is 

analyzed by FEMA regional senior level 

staff. The regional summary and the 

regional analysis and recommendation 

will include a discussion of State and 

local resources and capabilities, and 

other assistance available to meet the 

disaster related needs. The 

Administrator of FEMA provides a 

recommendation and a copy of the 

Governor’s request to the President. In 

the event the information required by 

law is not contained in the request, the 

Governor’s request cannot be processed 

and forwarded to the White House. 

Need for Information: The Stafford 

Act requires that all requests for a major 

disaster or emergency declaration be 

made by the Governor of the affected 

State or the Chief Executive of an 

affected Indian tribal government. 

Section 401(a) of the Stafford Act 

stipulates that such a request shall be 

based on a finding that the disaster is of 

such severity and magnitude that 

effective response is beyond the 

capabilities of the State and the affected 

local government, and that Federal 

assistance is necessary. Section 401(a) 

further stipulates that as a part of such 

request, and as a prerequisite to major 

disaster assistance under the Stafford 

Act, the Governor shall take appropriate 

response action under State law and 

direct the execution of the State’s 

emergency plan and shall furnish 

specific information that must be 

included in a request for a major 

disaster declaration. Section 401(a) 

stipulates that the request must include 

specific information on the nature and 

amount of State and local resources 

which have been or will be committed 

to alleviate the results of the disaster. 

Section 501(a) requires the same 

information to be provided in requests 

for declarations of an emergency. 

Use of Information: This collection 

includes FEMA Form 010–0–13, 

Request for Presidential Disaster 

Declaration Major Disaster or 

Emergency, which asks for the same 

data that were stated and required in the 

previous narrative Governor’s requests 

to the President requesting 

supplemental Federal assistance, 

through the appropriate Regional 

Administrator, combined with the 

findings of a joint FEMA, State and local 

Preliminary Damage Assessment (PDA). 

The PDA is analyzed and provides the 

basis for a Regional Summary, Analysis, 

and Recommendation, which is 

submitted to the Assistant 

Administrator of the Disaster Assistance 

Directorate. The information is reviewed 

and evaluated, and the Administrator 

formulates a recommendation which is 

submitted to the President for 

consideration of a disaster or emergency 

declaration. The FEMA form eliminates 

the need for follow-up communications 

and reporting during a declaration 

request. 

Description of the Respondents: State, 

local, or Tribal government. 

Number of Respondents: The current 

OMB-approved number of respondents 

is 623 per year. The proposed 

rulemaking would not impact the 

number of respondents. 

Number of Responses: FEMA 

estimates the number of responses 

would be 340 per year. This is a 

decrease of 16 responses from the OMBapproved number of responses of 356 

per year. 

Burden of Response: For each 

response, FEMA estimates it takes 9 

hours to complete FEMA Form 010–0– 

13. In addition, FEMA estimates it takes 

24.126 hours to gather information for 

the FEMA Form 010–0–13. The total 

burden for each response is 33.126 

hours 

Estimate of Total Annual Burden: The 

previously approved total annual 

burden was 11,792.8 hours. FEMA 

estimates that the number of responses 

would decrease by 16 per year. At 

33.126 hours per response, the reduced 

burden for submitting the responses 

would be 530 hours (rounded). Based on 

the proposed rule’s decrease in burden, 

the new estimated total annual burden 

is 11,262.8 hours. 

Collection of Information Number 

1660–0017 

Title: Public Assistance Program, 

OMB Control Number: 1660–0017, 

Type of information collection: 

Revision of a currently approved 

collection. 

Form Numbers: FEMA Forms 009–0– 

49, 009–0–91, 009–0–91A, 009–0–91B, 

009–0–91C, 009–0–91D, 009–0–111, 

009–0–120, 009–0–121, 009–0–123, 

009–0–124, 009–0–125, 009–0–126, 

009–0–127, 009–0–128, 055–0–0–1, and 

009–0–141. 

Summary of the Collection of 

Information: The Stafford Act 

authorizes grants to assist State, tribal, 

and local governments and certain 

Private Non-Profit entities with the 

response to and recovery from disasters 

following Presidentially declared major 

disasters and emergencies. 

Need for Information: The 

information collected is required for the 

PA program eligibility determinations, 

grants management, and compliance 

with other Federal laws and regulations. 

Title 44 CFR part 206 specifies the 

information collections necessary to 

facilitate the provision of assistance 

under the PA program. 

Use of Information: The information 

collected is utilized by FEMA to make 

determinations for PA grants based on 

the information supplied by the 

respondents. 

Description of Respondents: State, 

local, or tribal government. 

Number of Respondents: The current 

OMB-approved number of respondents 

is 56 per year for FEMA Forms 009–0– 

49, 009–0–91, 009–0–91A, 009–0–91B, 

009–0–91C, 009–0–91D, 009–0–111, 

009–0–120, 009–0–121, 009–0–123, 

009–0–124, 009–0–125, 009–0–126, 

009–0–127, 009–0–128, 009–0–141, 

State Administrative Plan and State 

Plan Amendments (no form), and 

Request for Appeals and 

Recommendation (no form); and 4 per 

year for Requests for Arbitration and 

Recommendation resulting from 

Hurricanes Katrina or Rita (no form). 

FEMA estimates the number of 

respondents would be 40 per year, a 

decrease of 16 respondents from the 

OMB-approved number of responses of 

56 per year, for FEMA Forms 009–0–49, 

009–0–91, 009–0–91A, 009–0–91B, 009– 

0–91C, 009–0–91D, 009–0–120, 009–0– 

121, 009–0–123, 009–0–124, 009–0–125, 

009–0–126, 009–0–127, 009–0–128, and 

009–0–141. The number of respondents 

would not change for FEMA Form 009– 

0–111, State Administrative Plan and 

State Plan Amendments (no form), 

Request for Appeals and 

Recommendation (no form), and 

Requests for Arbitration and 

Recommendation resulting from 

Hurricanes Katrina or Rita (no form). 

Number of Responses: The number of 

responses per respondent varies by form 

(see Table 9). The number of responses 

per respondent (form) would not change 

due to the proposed rule. The decrease 

in the number of respondents for certain 

forms would result in a decrease in the 

total annual responses. FEMA estimates 

the total annual number of responses 

would be 284,564 per year. This is a 

decrease of 113,504 responses from the 

OMB-approved number of responses of 

398,068 per year. 


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TABLE 9—ESTIMATED ANNUALIZED BURDEN HOURS BY FORM

Form name/form No. Respondents 

Responses 

per 

respondent 

Total annual 

responses 

Average 

hourly 

burden per 

response 

Total hourly 

annual burden 

FEMA Form 009–0–49, Request for Public Assistance ...... 40 129 5,160 0.25 1,290 

FEMA Form 009–0–91, Project Worksheet (PW) and a 

Request for Time Extension ............................................. 40 840 33,600 1.5 50,400 

FEMA Form 009–0–91A Project Work Sheet (PW) Damage Description and Scope of Work ................................ 40 784 31,360 1.5 47,040 

FEMA Form 009–0–91B, Project Worksheet (PW) Cost 

Estimate Continuation Sheet and Request for additional 

funding for Cost Overruns ................................................ 40 784 31,360 1.3333 41,813 

FEMA Form 009–0–91C Project Worksheet (PW) Maps 

and Sketches Sheet ......................................................... 40 728 29,120 1.5 43,680 

FEMA Form 009–0–91D Project Worksheet (PW) Photo 

Sheet ................................................................................ 40 728 29,120 1.5 43,680 

FEMA Form 009–0–120, Special Considerations Questions .................................................................................. 40 840 33,600 0.5 16,800 

FEMA Form 009–0–128, Applicant’s Benefits Calculation 

Worksheet ........................................................................ 40 784 31,360 0.5 15,680 

FEMA Form 009–0–121, PNP Facility Questionnaire ......... 40 94 3,760 0.5 1,880 

FEMA Form 009–0–123, Force Account Labor Summary 

Record .............................................................................. 40 94 3,760 0.5 1,880 

FEMA Form 009–0–124, Materials Summary Record ........ 40 94 3,760 0.25 940 

FEMA Form 009–0–125, Rented Equipment Summary 

Record .............................................................................. 40 94 3,760 0.5 1,880 

FEMA Form 009–0–126, Contract Work Summary Record 40 94 3,760 0.5 1,880 

FEMA Form 009–0–127, Force Account Equipment Summary Record ..................................................................... 40 94 3,760 0.25 940 

State Administrative Plan and State Plan Amendments/No 

Form ................................................................................. 56 1 56 8 448 

FEMA Form 009–0–111, Quarterly Progress Report .......... 56 4 224 100 22,400 

Request for Appeals & Recommendation/No Forms .......... 56 9 504 3 1,512 

Request for Arbitration & Recommendation resulting from 

Hurricanes Katrina or Rita/No Form ................................ 4 5 20 3 60 

FEMA Form 009–0–141, FAC–TRAX System .................... 40 913 36,520 1.25 45,650 

Total .............................................................................. ........................ ........................ 284,564 126.3333 339,853 

Burden of Response: The burden per 

response varies by form (see Table 9). 

The total burden per response varies by 

respondent, with a maximum burden 

per respondent of 126.3333 hours if a 

respondent completes every form and 

those items without forms. The burden 

per response would not change due to 

this rulemaking. 

Estimate of Total Annual Burden: The 

previously approved total annual 

burden was 466,025 hours. FEMA 

estimates that the number of 

respondents would decrease by 16 per 

year for FEMA Forms 009–0–49, 009–0– 

91, 009–0–91A, 009–0–91B, 009–0–91C, 

009–0–91D, 009–0–120, 009–0–121, 

009–0–123, 009–0–124, 009–0–125, 

009–0–126, 009–0–127, 009–0–128, and 

009–0–141. Table 9 shows the resultant 

change in the total annual burden by 

form. Based on the proposed rule’s 

decrease in burden, the new estimated 

total annual burden is 339,853 hours. 

This is a reduction of 126,172 hours per 

year. 

TABLE 9—ITEMIZED CHANGES IN ANNUAL BURDEN HOURS

Data collection activity/instrument 

Program 

change 

(burden 

currently on 

OMB Inventory) 

Program 

change 

(new) 

Difference 

FEMA Form 009–0–49, Request for Public Assistance .............................................................. 1,806 1,290 ¥516 

FEMA Form 009–0–91, Project Worksheet (PW) and a Request for Time Extension ............... 70,560 50,400 ¥20,160 

FEMA Form 009–0–91A Project Work Sheet (PW) Damage Description and Scope of Work .. 65,856 47,040 ¥18,816 

FEMA Form 009–0–91B, Project Worksheet (PW) Cost Estimate Continuation Sheet and Request for additional funding for Cost Overruns ........................................................................ 58,537 41,813 ¥16,724 

FEMA Form 009–0–91C Project Worksheet (PW) Maps and Sketches Sheet .......................... 61,152 43,680 ¥17,472 

FEMA Form 009–0–91D Project Worksheet (PW) Photo Sheet ................................................ 61,152 43,680 ¥17,472 

FEMA Form 009–0–120, Special Considerations Questions ...................................................... 23,520 16,800 ¥6,720 

FEMA Form 009–0–128, Applicant’s Benefits Calculation Worksheet ....................................... 21,952 15,680 ¥6,272 

FEMA Form 009–0–121, PNP Facility Questionnaire ................................................................. 2,632 1,880 ¥752 

FEMA Form 009–0–123, Force Account Labor Summary Record ............................................. 2,632 1,880 ¥752 

FEMA Form 009–0–124, Materials Summary Record ................................................................ 1,316 940 ¥376.0 

FEMA Form 009–0–125, Rented Equipment Summary Record ................................................. 2,632 1,880 ¥752 


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TABLE 9—ITEMIZED CHANGES IN ANNUAL BURDEN HOURS—Continued 

Data collection activity/instrument 

Program 

change 

(burden 

currently on 

OMB Inventory) 

Program 

change 

(new) 

Difference 

FEMA Form 009–0–126, Contract Work Summary Record ....................................................... 2,632 1,880 ¥752 

FEMA Form 009–0–127, Force Account Equipment Summary Record ..................................... 1,316 940 ¥376 

State Administrative Plan and State Plan Amendments/No Form .............................................. 448 448 0 

FEMA Form 009–0–111, Quarterly Progress Report .................................................................. 22,400 22,400 0

Request for Appeals & Recommendation/No Forms .................................................................. 1,512 1,512 0 

Request for Arbitration & Recommendation resulting from Hurricanes Katrina or Rita/No 

Form ......................................................................................................................................... 60 60 0 

FEMA Form 009–0–141, FAC–TRAX System ............................................................................ 63,910 45,650 ¥18,260 

Total ...................................................................................................................................... 466,025 339,853 ¥126,172 

As required by 44 U.S.C. 3507(d), 

FEMA will submit a copy of the 

proposed rule to OMB for its review of 

the collection of information. 

FEMA asks for public comment on the 

proposed collection of information to 

help determine how useful the 

information is, whether it can help 

FEMA perform its functions better, 

whether it is readily available 

elsewhere, how accurate the estimate of 

the burden of collection is, how valid 

the methods for determining burden are, 

how FEMA can improve the quality, 

usefulness, and clarity of the 

information, and how FEMA can 

minimize the burden of collection. 

If you submit comments on the 

collection of information, submit them 

both to OMB and to the Docket 

Management Facility, where indicated 

under the ADDRESSES section of the 

proposed rule, by the date given under 

the DATES section. 

You are not required to respond to a 

collection of information unless it 

displays a currently valid control 

number from OMB. Before FEMA could 

enforce the collection of information 

requirements in this proposed rule, 

OMB would need to approve FEMA’s 

request to collect this information. 

F. Privacy Act/E-Government Act 

Under the Privacy Act of 1974, 5 

U.S.C. 552a, an agency must determine 

whether implementation of a proposed 

regulation will result in a system of 

records. A ‘‘record’’ is any item, 

collection, or grouping of information 

about an individual that is maintained 

by an agency, including, but not limited 

to, his/her education, financial 

transactions, medical history, and 

criminal or employment history and 

that contains his/her name, or the 

identifying number, symbol, or other 

identifying particular assigned to the 

individual, such as a finger or voice 

print or a photograph. See 5 U.S.C. 

552a(a)(4). A ‘‘system of records’’ is a 

group of records under the control of an 

agency from which information is 

retrieved by the name of the individual 

or by some identifying number, symbol, 

or other identifying particular assigned 

to the individual. An agency cannot 

disclose any record which is contained 

in a system of records except by 

following specific procedures. 

The E-Government Act of 2002, 44 

U.S.C. 3501 note, also requires specific 

procedures when an agency takes action 

to develop or procure information 

technology that collects, maintains, or 

disseminates information that is in an 

identifiable form. This Act also applies 

when an agency initiates a new 

collection of information that will be 

collected, maintained, or disseminated 

using information technology if it 

includes any information in an 

identifiable form permitting the 

physical or online contacting of a 

specific individual. 

A Privacy Threshold Analysis for this 

proposed rule was approved on May 23, 

2019. Any information will be collected 

in existing FEMA Form 010–0–13, and 

will still only include the Governor’s 

point of contact and general office 

phone number as well as other State 

specific and disaster specific 

information of a nonpersonally-identifiable nature. The 

information received through the form 

is neither retrieved nor retrievable by 

personally identifiable information (PII). 

Any retrieval would be done by 

utilizing State specific or disaster 

specific information of a 

non-identifiable nature. This form and 

its contents are covered by a System of 

Records Notice, DHS/FEMA/PIA–013 

Grant Management Programs and notice 

is provided by the DHS/FEMA–009 

Hazard Mitigation Disaster Public 

Assistance and Disaster Loan Programs 

SORN. This rulemaking does not impact 

FEMA’s collection of PII in the disaster 

declarations process and form and no 

Privacy Impact Assessment or System of 

Records Notice is required at this time. 

G. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, ‘‘Consultation 

and Coordination with Indian Tribal 

Governments,’’ 65 FR 67249, November 

9, 2000, applies to agency regulations 

that have Tribal implications, that is, 

regulations that have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. Under 

this Executive order, to the extent 

practicable and permitted by law, no 

agency shall promulgate any regulation 

that has Tribal implications, that 

imposes substantial direct compliance 

costs on Indian Tribal governments, and 

that is not required by statute, unless 

funds necessary to pay the direct costs 

incurred by the Indian Tribal 

government or the Tribe in complying 

with the regulation are provided by the 

Federal Government, or the agency 

consults with Tribal officials. 

FEMA has reviewed this proposed 

rule under Executive Order 13175 and 

believes that this proposed rule would 

not have a substantial direct effect on 

one or more Indian tribes, on the 

relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. The 

Sandy Recovery Improvement Act of 

2013 requires the President when 

issuing regulations to ‘‘consider the 

unique conditions that affect the general 

welfare of Indian tribal governments.’’ 

To this end, FEMA, in coordination 


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with DHS, OMB and several tribes and 

tribal organizations, decided to develop 

the Tribal Declarations Pilot Guidance. 

The guidance underwent extensive and 

exhaustive tribal consultation for over 3 

years, which included over 150 

listening sessions across the country 

and the adjudication of over 2,000 

comments. Under the Tribal 

Declarations Pilot Guidance, FEMA 

established separate factors for 

evaluating tribal governments’ requests. 

These factors include (but are not 

limited to) a lower minimum damage 

amount for Public Assistance ($250,000) 

and the elimination of a per capita 

damage amount. These factors reflect 

the Agency’s acknowledgement that 

tribal nations have different needs and 

capabilities than states. The factors 

listed in the Tribal Declarations Pilot 

Guidance will not be altered by this 

proposed rule, as the proposed rule only 

applies to States and Territories. 

Additionally, as noted in the RIA, Tribal 

applicants and subapplicants would 

have received $10.74 million less in PA 

funding between 2008 and 2017 had the 

proposed rule been in effect. However, 

$9 million of that funding would have 

been potentially available for some of 

those Tribal governments had they 

requested a major disaster declaration 

under the Tribal Declarations Pilot 

Guidance because those Tribal 

governments received more than 

$250,000 in PA assistance. Therefore, it 

is possible more Tribal governments 

may request disaster declarations 

through the Tribal Declarations Pilot 

Guidance as a result of the proposed 

rule. However, as discussed in the RIA, 

there are many other factors that affect 

whether a Tribal government requests a 

declaration through the Tribal 

Declarations Pilot Guidance. 

The remaining $1.74 million of PA 

funding that Tribal governments would 

likely not have received resulted in an 

average of $36,192 per project for each 

of the 44 Tribal governments across the 

29 disasters analyzed. While FEMA 

appreciates that some Tribal 

governments have limited financial 

capabilities, FEMA believes most Tribal 

governments could handle such costs in 

responding to an event on their own. 

Accordingly, FEMA does not believe 

that consultation under Executive Order 

13175 is necessary; however, FEMA 

welcomes comments on the potential 

impacts of the proposed rule on Tribal 

governments. Additionally, in 

accordance with the requirement in 

section 1239 of the DRRA that FEMA 

meaningfully consult with State, local 

and Tribal governments, FEMA will 

conduct additional outreach with Tribal 

government stakeholders as well as 

representatives of State, regional and 

local governments. 

H. Executive Order 13132, Federalism 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255, August 10, 1999, sets forth 

principles and criteria that agencies 

must adhere to in formulating and 

implementing policies that have 

federalism implications, that is, 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Federal 

agencies must closely examine the 

statutory authority supporting any 

action that would limit the 

policymaking discretion of the States, 

and to the extent practicable, must 

consult with State and local officials 

before implementing any such action. 

FEMA has reviewed this proposed 

rule under Executive Order 13132 

believes that this proposed rule would 

not have substantial direct effects on the 

States, on the relationship between the 

National Government and the States, on 

the distribution of power and 

responsibilities among the various 

levels of government, or on the 

policymaking discretion of the States, 

and therefore does not have federalism 

implications as defined by the Executive 

order. The proposed rule substantively 

affects one of several factors that FEMA 

considers when determining whether to 

recommend that the President declare 

that a major disaster has occurred on the 

basis of a governor’s request that such 

a declaration be made. Importantly, 

FEMA considers all of the factors in 

making a decision on a 

recommendation, as each disaster 

request involves circumstances unique 

to that disaster event, the State, and 

affected communities. Moreover, 

FEMA’s recommendation to the 

President does not obligate the 

President to agree with FEMA’s 

recommendation. Rather, the President 

may declare or not declare a disaster on 

their own accord. Furthermore, the 

proposed rule does not affect a State’s 

ability or choice to request such a 

declaration, since disaster declaration 

requests are voluntary, and States 

choose whether or not to request 

Federal assistance. While FEMA hopes 

that the proposed rule will encourage 

States to invest more in mitigating 

future disasters and their consequences, 

such funding decisions are ultimately 

left to the States’ discretion. 

Accordingly, the proposed rule does not 

have federalism implications as defined 

by the Executive order. 

However, FEMA welcomes comments 

on the proposed rule’s potential impacts 

on States and territories, and their 

relationships with the Federal 

Government. Additionally, in 

accordance with the requirement in 

section 1239 of the DRRA that FEMA 

meaningfully consult with State, local 

and Tribal governments, FEMA will 

conduct additional outreach with 

representatives of State, regional and 

local governments. 

I. Executive Order 11988, Floodplain 

Management, as amended 

Pursuant to Executive Order 11988, 

each agency is required to provide 

leadership and take action to reduce the 

risk of flood loss, to minimize the 

impact of floods on human safety, 

health and welfare, and to restore and 

preserve the natural and beneficial 

values served by floodplains in carrying 

out its responsibilities for (1) acquiring, 

managing, and disposing of Federal 

lands and facilities; (2) providing 

Federally undertaken, financed, or 

assisted construction and 

improvements; and (3) conducting 

Federal activities and programs affecting 

land use, including but not limited to 

water and related land resources 

planning, regulating, and licensing 

activities. In carrying out these 

responsibilities, each agency must 

evaluate the potential effects of any 

actions it may take in a floodplain; to 

ensure that its planning programs and 

budget requests reflect consideration of 

flood hazards and floodplain 

management; and to prescribe 

procedures to implement the policies 

and requirements of the Executive 

order. 

Before promulgating any regulation, 

an agency must determine whether the 

proposed regulations will affect a 

floodplain(s), and if so, the agency must 

consider alternatives to avoid adverse 

effects and incompatible development 

in the floodplain(s). If the head of the 

agency finds that the only practicable 

alternative consistent with the law and 

with the policy set forth in Executive 

Order 11988 is to promulgate a 

regulation that affects a floodplain(s), 

the agency must, prior to promulgating 

the regulation, design or modify the 

regulation in order to minimize 

potential harm to or within the 

floodplain, consistent with the agency’s 

floodplain management regulations and 

prepare and circulate a notice 

containing an explanation of why the 

action is proposed to be located in the 

floodplain. 

The requirements of Executive Order 

11988 apply in the context of the 

provision of Federal financial assistance 


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relating to, among other things, 

construction and property improvement 

activities, as well as conducting Federal 

programs affecting a floodplain(s). The 

changes proposed in this rule would not 

have an effect on floodplain 

management. This proposed rule revises 

the criteria that FEMA considers when 

recommending a State eligible for PA 

under a major disaster declaration. A 

major disaster declaration 

recommendation to the President is an 

administrative action for FEMA’s PA 

program. When FEMA undertakes 

specific actions in administering PA 

that may have effects on floodplain 

management, FEMA follows the 

procedures set forth in 44 CFR part 9 to 

assure compliance with this Executive 

order. This serves as the notice that is 

required by the E.O.. 

J. Executive Order 11990, Protection of 

Wetlands 

Pursuant to Executive Order 11990, 

each agency must provide leadership 

and take action to minimize the 

destruction, loss or degradation of 

wetlands, and to preserve and enhance 

the natural and beneficial values of 

wetlands in carrying out the agency’s 

responsibilities for (1) acquiring, 

managing, and disposing of Federal 

lands and facilities; and (2) providing 

Federally undertaken, financed, or 

assisted construction and 

improvements; and (3) conducting 

Federal activities and programs affecting 

land use, including but not limited to 

water and related land resources 

planning, regulating, and licensing 

activities. Each agency, to the extent 

permitted by law, must avoid 

undertaking or providing assistance for 

new construction located in wetlands 

unless the head of the agency finds (1) 

that there is no practicable alternative to 

such construction, and (2) that the 

proposed action includes all practicable 

measures to minimize harm to wetlands 

which may result from such use. In 

making this finding the head of the 

agency may take into account economic, 

environmental and other pertinent 

factors. 

In carrying out the activities described 

in the Executive order, each agency 

must consider factors relevant to a 

proposal’s effect on the survival and 

quality of the wetlands. Among these 

factors are: Public health, safety, and 

welfare, including water supply, 

quality, recharge and discharge; 

pollution; flood and storm hazards; and 

sediment and erosion; maintenance of 

natural systems, including conservation 

and long term productivity of existing 

flora and fauna, species and habitat 

diversity and stability, hydrologic 

utility, fish, wildlife, timber, and food 

and fiber resources; and other uses of 

wetlands in the public interest, 

including recreational, scientific, and 

cultural uses. 

The requirements of Executive Order 

11990 apply in the context of the 

provision of Federal financial assistance 

relating to, among other things, 

construction and property improvement 

activities, as well as conducting Federal 

programs affecting land use. The 

changes proposed in this rule would not 

have an effect on land use or wetlands. 

This proposed rule revises the criteria 

that FEMA considers when 

recommending a State eligible for PA 

under a major disaster declaration. A 

major disaster declaration 

recommendation to the President is an 

administrative action for FEMA’s PA 

program. When FEMA undertakes 

specific actions in administering PA 

that may have such effects, FEMA 

follows the procedures set forth in 44 

CFR part 9 to assure compliance with 

this Executive order. 

K. Executive Order 12898, 

Environmental Justice 

Pursuant to Executive Order 12898, 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations,’’ 59 FR 7629, February 16, 

1994, as amended by Executive Order 

12948, 60 FR 6381, February 1, 1995, 

FEMA incorporates environmental 

justice into its policies and programs. 

The Executive order requires each 

Federal agency to conduct its programs, 

policies, and activities that substantially 

affect human health or the environment 

in a manner that ensures that those 

programs, policies, and activities do not 

have the effect of excluding persons 

from participation in programs, denying 

persons the benefits of programs, or 

subjecting persons to discrimination 

because of race, color, or national origin. 

This rulemaking will not have a 

disproportionately high or adverse effect 

on minority or low-income populations. 

The proposed rule substantively affects 

one of several factors that FEMA 

considers when determining whether to 

recommend that the President declare 

that a major disaster has occurred on the 

basis of a governor’s request that such 

a declaration be made for PA. FEMA’s 

PA program provides assistance to 

States, local governments, and private 

non-profits in repairing, restoring, and 

replacing facilities damaged by 

disasters, such as buildings, roads, 

bridges, and other infrastructure. 

FEMA’s review of a governor’s request 

for a major disaster declaration for PA 

only considers the relevant factors as 

they pertain to a disaster’s impacts on 

those public or eligible private nonprofit facilities covered by the PA 

program. Accordingly, no action that 

FEMA can anticipate under this rule 

will have a disproportionately high and 

adverse human health or environmental 

effect on any segment of the population. 

L. Federal Participation in the 

Development and Use of Voluntary 

Consensus Standards and in Conformity 

Assessment Activities,’’ OMB Circular 

A–119 

‘‘Voluntary consensus standards’’ are 

standards developed or adopted by 

voluntary consensus standards bodies, 

both domestic and international. These 

standards include provisions requiring 

that owners of relevant intellectual 

property have agreed to make that 

intellectual property available on a nondiscriminatory, royalty-free or 

reasonable royalty basis to all interested 

parties. OMB Circular A–119 directs 

agencies to use voluntary consensus 

standards in their regulatory actions in 

lieu of government-unique standards 

except where inconsistent with law or 

otherwise impractical. The policies in 

the Circular are intended to reduce to a 

minimum the reliance by agencies on 

government-unique standards. 

The proposed rule does not contain a 

‘‘standard’’ as defined by OMB Circular 

A–119. This proposed rule revises the 

criteria that FEMA considers when 

recommending a State eligible for PA 

under a major disaster declaration. A 

major disaster declaration 

recommendation to the President is an 

administrative action for FEMA’s PA 

program. Accordingly, an analysis 

under OMB Circular A–119 is not 

required. 

M. Congressional Review of Agency 

Rulemaking 

Under the Congressional Review of 

Agency Rulemaking Act (CRA), 5 U.S.C. 

801–808, before a rule can take effect, 

the Federal agency promulgating the 

rule must submit to Congress and to the 

Government Accountability Office 

(GAO) a copy of the rule, a concise 

general statement relating to the rule, 

including whether it is a major rule, the 

proposed effective date of the rule, a 

copy of any cost-benefit analysis; 

descriptions of the agency’s actions 

under the Regulatory Flexibility Act and 

the Unfunded Mandates Reform Act, 

and any other information or statements 

required by relevant Executive orders. 

FEMA will send this rule to the 

Congress and to GAO pursuant to the 

CRA if the rule is finalized. The rule, as 

proposed, is a ‘‘major rule’’ within the 

meaning of the CRA. It will have an 


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Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Proposed Rules 80745 

annual effect on the economy of 

$100,000,000 or more, and may result in 

a major increase in costs or prices for 

Federal, State, or local government 

agencies. It will not have significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or on the ability of United 

States- based enterprises to compete 

with foreign-based enterprises in 

domestic and export markets. 

List of Subjects in 44 CFR Part 206 

Administrative practice and 

procedure, Coastal zone, Community 

facilities, Disaster assistance, Fire 

prevention, Grant programs—housing 

and community development, Housing, 

Insurance, Intergovernmental relations, 

Loan programs—housing and 

community development, Natural 

resources, Penalties, Reporting and 

recordkeeping requirements. 

For the reasons stated in the 

preamble, the Federal Emergency 

Management Agency proposes to amend 

44 CFR part 206, subpart B, as follows: 

PART 206—FEDERAL DISASTER 

ASSISTANCE 

■ 1. The authority citation for part 206 

continues to read as follows: 

Authority: Robert T. Stafford Disaster 

Relief and Emergency Assistance Act, 42 

U.S.C. 5121 through 5207; Homeland 

Security Act of 2002, 6 U.S.C. 101 et seq.; 

Department of Homeland Security Delegation 

9001.1. 

■ 2. Revise § 206.48 introductory text 

and paragraph (a) to read as follows: 

§ 206.48 Factors considered when 

evaluating a Governor’s request for a major 

disaster declaration. 

When FEMA reviews a Governor’s 

request for major disaster assistance 

under the Stafford Act, these are the 

primary factors in making a 

recommendation to the President 

whether assistance is warranted. FEMA 

considers other relevant information as 

well. 

(a) Public Assistance Program. FEMA 

evaluates the following factors to 

evaluate the need for assistance under 

the Public Assistance Program. 

(1) Estimated cost of the assistance. 

FEMA evaluates the estimated cost of 

Federal and non-Federal public 

assistance against the statewide 

population to give some measure of the 

per capita impact within the State. 

FEMA uses a figure of $2.32 per capita 

as an indicator that the disaster is of 

such size that it might warrant Federal 

assistance, and will adjust this figure 

annually based on the Consumer Price 

Index for all Urban Consumers. With the 

exception of the District of Columbia, 

the Commonwealth of Puerto Rico, U.S. 

Virgin Islands, the Commonwealth of 

the Northern Mariana Islands, American 

Samoa, and Guam, FEMA further 

adjusts each State’s per capita indicator 

according to each State’s Total Taxable 

Resources (TTR) as reported by the U.S. 

Department of Treasury. FEMA is 

establishing a minimum threshold of 

$1.535 million in public assistance 

damages per disaster in the belief that 

FEMA can reasonably expect even the 

lowest population States to cover this 

level of public assistance damage. 

FEMA will adjust this minimum 

threshold annually based on the 

Consumer Price Index for all Urban 

Consumers. FEMA will publish the 

adjusted figures annually in the Federal 

Register. 

(2) Localized impacts. FEMA 

evaluates the impact of the disaster at 

the county and local government level, 

as well as impacts at the American 

Indian and Alaskan Native Tribal 

Government levels, because at times 

there are extraordinary concentrations 

of damages that might warrant Federal 

assistance even if the statewide per 

capita is not met. This is particularly 

true where critical facilities are involved 

or where localized per capita impacts 

might be extremely high. For example, 

FEMA has at times seen localized 

damages in the tens or even hundreds 

of dollars per capita though the 

statewide per capita impact was low. 

(3) Insurance coverage in force. FEMA 

considers the amount of insurance 

coverage that is in force or should have 

been in force as required by law and 

regulation at the time of the disaster, 

and reduces the amount of anticipated 

assistance by that amount. 

(4) Hazard mitigation. To recognize 

and encourage mitigation, FEMA 

considers the extent to which State and 

local government measures contributed 

to the reduction of disaster damages for 

the disaster under consideration. For 

example, if a State can demonstrate in 

its disaster request that a Statewide 

building code or other mitigation 

measures are likely to have reduced the 

damages from a particular disaster, 

FEMA considers that in the evaluation 

of the request. This could be especially 

significant in those disasters where, 

because of mitigation, the estimated 

public assistance damages fell below the 

per capita indicator. 

(5) Recent multiple disasters. FEMA 

looks at the disaster history within the 

last 12-month period to better evaluate 

the overall impact on the State or 

locality. FEMA considers declarations 

under the Stafford Act as well as 

declarations by the Governor and the 

extent to which the State has spent its 

own funds. 

(6) Programs of other Federal 

assistance. FEMA also considers 

programs of other Federal agencies 

because at times their programs of 

assistance might more appropriately 

meet the needs created by the disaster. 

* * * * * 

Pete Gaynor, 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. 2020–27094 Filed 12–11–20; 8:45 am] 

BILLING CODE 9111–23–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 385 and 391 

[Docket No. FMCSA–2018–0224] 

RIN 2126–AC15 

Record of Violations 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: FMCSA proposes to eliminate 

the requirement that drivers operating 

commercial motor vehicles (CMVs) in 

interstate commerce prepare and submit 

a list of their convictions for traffic 

violations to their employers annually. 

This requirement is largely duplicative 

of a separate provision that requires 

each motor carrier to make an annual 

inquiry to obtain the motor vehicle 

record (MVR) for each driver it employs 

from every State in which the driver 

holds or has held a CMV operator’s 

license or permit in the past year. To 

ensure motor carriers are aware of traffic 

violations for a driver who is licensed 

by a foreign authority rather than by a 

State, that provision would be amended 

to provide that motor carriers must 

make an annual inquiry to each driver’s 

licensing authority where a driver holds 

or has held a CMV operator’s license or 

permit. This change would require 

motor carriers to request the MVR 

equivalent from Canadian and Mexican 

driver’s licensing authorities. FMCSA 

expects that removing the requirement 

for drivers to provide a list of their 

convictions for traffic violations to their 

employers annually would reduce the 

paperwork burden on drivers and motor 

carriers without adversely affecting 

CMV safety. 

DATES: Comments on this notice of 

proposed rulemaking (NPRM) and 

information collection must be received 

on or before February 12, 2021. 


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