[Federal Register Volume 78, Number 46 (Friday, March 8, 2013)]
[Notices]
[Pages 15026-15030]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-05391]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2013-0006]


Solicitation for Comments Regarding Current Procedures To Request 
Emergency and Major Disaster Declarations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: On Tuesday, January 29, 2013, President Obama signed the Sandy 
Recovery Improvement Act of 2013, which includes a provision amending 
the Robert T. Stafford Disaster Relief and Emergency Assistance Act to 
provide federally recognized Indian tribal governments the option to 
make a request directly to the President for a Federal emergency or 
major disaster declaration, or to seek assistance, as they do 
presently, under a declaration for a State. In support of preliminary 
implementation of this provision, the Federal Emergency Management 
Agency (FEMA) is engaging in a comprehensive consultation effort with 
federally recognized Indian tribal governments. To initiate that 
consultation, FEMA is soliciting comments regarding FEMA procedures for 
declaration requests from Indian tribal governments.

DATES: Comments must be received by April 22, 2013.

ADDRESSES: Comments must be identified by docket ID FEMA-2013-0006 and 
may be submitted by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: Regulatory Affairs Division, Office of Chief Counsel, Federal 
Emergency Management Agency, Room 835, 500 C Street SW., Washington, DC 
20472-3100.

FOR FURTHER INFORMATION CONTACT: Jessica Stewart, Federal Emergency 
Management Agency, 500 C Street SW., Washington, DC 20472, 202-646-
3888.

SUPPLEMENTARY INFORMATION

I. Public Participation

    Instructions: All submissions received must include the agency name 
and docket ID. Regardless of the method used for submitting comments or 
material, all submissions will be posted, without change, to the 
Federal eRulemaking Portal at http://www.regulations.gov, and will 
include any personal information you provide. Therefore, submitting 
this information makes it public. You may wish to read the Privacy Act 
notice, which can be viewed by clicking on the ``Privacy Notice'' link 
in the footer of http://www.regulations.gov.
    You may submit your comments and material by the methods specified 
in the ADDRESSES section of this notice. Please submit your comments 
and any supporting material by only one means to avoid the receipt and 
review of duplicate submissions.
    Docket: A copy of this notice is available in docket ID FEMA-2013-
0006. For access to the docket to read background documents or comments 
received, go to the Federal eRulemaking Portal at http://www.regulations.gov, click on ``Advanced Search,'' then enter ``FEMA-
2013-0006'' in the ``By Docket ID'' box, then select ``FEMA'' under 
``By Agency,'' and then click ``Search.'' Submitted comments may also 
be inspected at FEMA, Office of Chief Counsel, Regulatory Affairs 
Division, 500 C Street SW., Washington, DC 20472-3100.

II. Background

    The Robert T. Stafford Disaster Relief and Emergency Assistance Act 
(Stafford Act) authorizes the President to make certain Federal 
assistance available to support State, tribal, and local efforts to 
respond to and recover from a disaster. The President makes disaster 
assistance available after he declares that an emergency or major 
disaster has occurred and that Federal assistance is needed to 
supplement State and local government resources. In the past, the 
Stafford Act allowed only the Governor of a State to make a request for 
a declaration by the President for an emergency or major disaster.
    On Tuesday, January 29, 2013, President Obama signed the Sandy 
Recovery Improvement Act of 2013, that included a provision amending 
the Stafford Act to provide Federally recognized Indian tribal 
governments the option to choose whether to make a request directly to 
the President for a Federal emergency or major disaster declaration, or 
to seek assistance, as they do presently, under a declaration for a 
State.
    Specifically, the amendment permits the ``Chief Executive'' of an 
``affected Indian tribal government'' to submit a request for a 
declaration to the President that a major disaster or emergency exists 
consistent with the requirements listed in Stafford Act section 401 
(major disasters) and 501 (emergencies). The amendment also stipulates 
that an Indian tribal government may be eligible to receive assistance 
through a declaration made by the President at the request of a State, 
so long as the Indian tribal government does not receive a separate 
declaration from the President for the same incident.
    FEMA plans to establish a pilot program for managing requests from 
Indian tribal governments; during development of this pilot program, 
FEMA will engage in a comprehensive consultation effort with Indian 
tribal governments.

III. Current Requirements and Processes for State Declaration Requests

    Below you will find an explanation of the current regulatory 
requirements (located in Title 44 of the Code of Federal Regulations) 
for a Governor's request for an emergency or major disaster declaration 
and the factors FEMA uses to make a recommendation to the President 
about whether supplemental Federal assistance is needed. These 
regulations are currently framed with respect to States.
    As an initial step in consultation with Indian tribal governments 
and outreach to other stakeholders, FEMA asks Indian tribal governments 
for their thoughts and comments on how these requirements and factors 
may or may not be appropriate as applied to requests from Indian tribal 
governments during the pilot program. The input provided will inform 
the development of the pilot program to process declaration requests 
from Indian tribal governments. FEMA welcomes comments on any or all of 
the topics addressed in this Notice. Comments are also welcomed on any 
other issues that may not be covered in the below topics.

Types of Declarations and Assistance

    Stafford Act assistance is intended to supplement State and local 
resources. States must establish in their requests that the event is of 
such severity and magnitude that effective response is beyond the 
capabilities of the State and the affected local governments. (42 
U.S.C. 5121(2))
    Emergency Declarations: Emergency Declarations are to supplement 
efforts in providing short-term emergency services, such as the 
protection of lives,

[[Page 15027]]

property, public health, and safety, or to lessen or avert the threat 
of a catastrophe. (42 U.S.C. 5191)
    Major Disaster Declaration: A major disaster declaration may 
provide a wide range of Federal assistance programs for individuals and 
public infrastructure, including funds for both emergency and permanent 
work. (42 U.S.C. 5170)
    Types of FEMA disaster assistance that may be made available by 
major disaster declarations:
     Individual Assistance--Assistance to individuals and 
households. (More information can be found at: https://www.fema.gov/individual-assistance-program-tools) (42 U.S.C. 5174);
     Public Assistance--Assistance to State, Indian tribal and 
local governments and certain private nonprofit organizations for 
emergency work and the repair or replacement of disaster-damaged 
facilities. (More information can be found at: https://www.fema.gov/public-assistance-local-state-tribal-and-non-profit) (42 U.S.C. 5170b 
and 5172); and
     Hazard Mitigation Assistance--Assistance to State and 
local governments and certain private nonprofit organizations for 
actions taken to prevent or reduce long term risk to life and property 
from natural hazards. (More information can be found at https://www.fema.gov/hazard-mitigation-assistance) (42 U.S.C. 5170c).

Preliminary Damage Assessments

    In support of requests for a major disaster declaration, 
Preliminary Damage Assessments (PDAs) are conducted to estimate the 
extent of the disaster and its impact on individuals and public 
facilities. A PDA is not required for an emergency declaration request. 
The PDA team may be comprised of personnel from FEMA, the State's 
emergency management agency, Territorial, Indian tribal and affected 
local government officials and other Federal agencies (e.g., the U.S. 
Small Business Administration). The team's work begins with assessing 
the emergency costs incurred by the units of government, the uninsured 
damage to public facilities, and the impacts on individuals' lives, 
homes and businesses. This information is included in the Governor's 
request to the President.

Requirements for Submitting Declaration Requests

    Governors submit declaration requests to the President through the 
appropriate FEMA Regional Administrator. The Stafford Act requires a 
Governor of an affected State to base his/her declaration request on 
the finding that the disaster is of such severity and magnitude that 
effective response is beyond the capabilities of the State and the 
affected local governments and that Federal assistance is necessary. 
The Governor must also take appropriate response action under State 
law, direct execution of the State's emergency plan, have or will 
commit resources to alleviate the results for the disaster, and certify 
that the State will comply with all cost sharing requirements.
    In order for FEMA to make Public Assistance, Individual Assistance, 
and Hazard Mitigation available to eligible areas, Governors must have 
the following agreements and/or plans:

--In order to receive Public Assistance, Governors must have an 
approved Administrative Plan. (44 CFR 206.207).
--In order to receive Public Assistance Categories C-G and Hazard 
Mitigation Grant Program assistance, States must have an approved or 
approvable State mitigation plan. (44 CFR 201.4(a)).
--In order to receive Other Needs Assistance under the Individual and 
Household Program, Governors must choose an administrator to provide 
the assistance and, depending on the choice, have an approved Other 
Needs Assistance Administrative Plan. (44 CFR 206.120).
     [cir] Within 72 hours of a disaster declaration, a State may 
submit modifications of the Administrative Plan. (44 CFR 206.120(e)).

--States and local governments must comply with the ``Uniform 
Requirements for Grants and Cooperative Agreements to State and Local 
Governments.'' (44 CFR Part 13).

    FEMA is soliciting comments on whether there are circumstances that 
may prevent a Chief Executive of an Indian tribal government from 
complying with these current requirements and processes for declaration 
requests during the pilot program.

IV. Other Needs Assistance Administrative Plan Requirement for 
Individuals and Households Program

    The Federal Assistance to Individuals and Households Program (IHP) 
(44 CFR 206.110-206.120) provides financial assistance, such as funding 
to repair damaged homes or replacement of household items, and if 
necessary, direct assistance to eligible individuals and households. 
IHP is intended to help disaster-impacted individuals and households 
who have uninsured or under-insured housing and other needs and are 
unable to meet such expenses or needs through other means.
    Housing Assistance under IHP is administered directly by FEMA. 
However, the delivery of Other Needs Assistance (ONA) under IHP is 
contingent upon the State choosing an ONA Administrative Option. The 
State may either request FEMA to administer ONA or they may request a 
grant so they can administer ONA. Currently, most States opt to have 
FEMA administer ONA instead of choosing to administer it themselves. In 
order for eligible disaster survivors to receive assistance for 
clothing, personal property, transportation and other non-housing 
related needs, States must select an option for administering ONA.
    FEMA is soliciting comments on whether there are circumstances that 
may prevent a Chief Executive of an Indian tribal government from 
selecting an ONA Administrative Option during the pilot program. In 
addition, FEMA welcomes comments on the ability of an Indian tribal 
government to administer ONA on its own.

V. Mitigation Plan Requirement

    The Stafford Act requires Indian tribal governments to have a FEMA-
approved mitigation plan as a condition of receipt of hazard mitigation 
assistance (42 U.S.C. 5165). Assistance programs impacted include 
Public Assistance Categories C-G and the Hazard Mitigation Grant 
Program. The State or Tribal Mitigation Plan outlines processes for 
identifying the natural hazards, risks, and vulnerabilities of the 
area, as well as actions to reduce losses from future disasters (44 CFR 
201.7).
    For States that do not have a FEMA-approved State Mitigation Plan, 
FEMA allows 30 days from the date of the declaration for the State to 
submit to FEMA an approved or approvable State Mitigation Plan.
    FEMA welcomes comments on whether 30 days is an appropriate amount 
of time for Indian tribal governments to submit an approved or 
approvable Tribal Mitigation Plan during the pilot program. FEMA also 
welcomes comments on whether there are circumstances that may prevent 
an Indian tribal government from submitting a Tribal Mitigation Plan, 
or a request for an extension within this time.

VI. Timelines To Submit Declaration Requests

    FEMA's regulations require a Governor to submit a request for an 
emergency or major disaster declaration within 30 days of the date of 
the incident. FEMA's regulations allow

[[Page 15028]]

Governors to request additional time to submit emergency and major 
disaster declaration requests. The extension request must be submitted 
within 30 days after the incident and must include a reason for the 
additional time needed.
    FEMA is soliciting comments to determine whether 30 days is an 
appropriate amount of time for the Chief Executive of an Indian tribal 
government to submit a request or ask for an extension during the pilot 
program. FEMA welcomes comments on whether there are circumstances that 
may prevent the Chief Executive of an Indian tribal government from 
submitting such a request, or a request for an extension within this 
time.

VII. Public Assistance

    The Stafford Act recognizes that primary responsibility for 
emergency management is at the local level; thus, Stafford Act 
assistance is intended to be available only as a supplement to other 
governmental and non-governmental resources. The Act instructs 
Governors to base their declaration requests on the finding that the 
disaster is of such severity and magnitude that effective response is 
beyond the capabilities of the State and the affected local governments 
and that Federal assistance is necessary. The Stafford Act is not 
intended to provide assistance for every event that impacts a State or 
county, so FEMA established evaluation factors based on this principle.
    When Governors request that the President declare a major disaster 
which authorizes Public Assistance, FEMA uses the following criteria to 
make a recommendation to the President whether assistance is warranted.
     Estimated cost of the assistance.
     Localized impacts.
     Insurance coverage in force.
     Hazard Mitigation.
     Recent multiple disasters.
     Programs of other Federal assistance.

Estimated Cost of the Assistance

    For State requests, FEMA evaluates the estimated cost of Federal 
and non-Federal public assistance against the statewide population, to 
give some measure of the per capita impact within the State. This 
provides a sense of proportional impact of on the population of the 
State. We use a figure of $1.37 per capita (FY13) as an indicator that 
the disaster is of such size that might warrant Federal assistance 
(adjusted annually based on the Consumer Price Index).
    FEMA is soliciting comments on whether the estimated cost of 
assistance is an appropriate factor to evaluate Indian tribal 
government requests for Public Assistance during the pilot program. 
FEMA welcomes comments on whether requests should be evaluated based on 
per capita, and if not, how Indian tribal government population size 
should be considered. FEMA also welcomes comments on what 
considerations FEMA should evaluate in determining the appropriate 
damage indicators for Indian tribal government requests.
    FEMA has also established a minimum of $1 million in public 
assistance estimated damages per disaster, based on the belief that we 
can reasonably expect even the least populated States to cover this 
level of public assistance damage.
    FEMA is soliciting comments on whether an Indian tribal government 
can reasonably be expected to cover that level of public assistance 
damage during the pilot program. FEMA welcomes comments on whether 
there should be a similar, if lower, minimum threshold applied to 
Indian tribal government requests. FEMA also welcomes comments on 
whether such a minimum damage amount should depend on the population of 
the requesting Indian tribal government, and/or on other information.

Localized Impacts

    For State requests, FEMA evaluates the impact of the disaster at 
the county and local government level, as well as the impact on 
American Indian/Alaska Native (AI/AN) Indian tribal government levels. 
This is because, at times, there are extraordinary concentrations of 
damages that might warrant Federal assistance, even if the statewide 
per capita is not met. This is particularly true in situations where 
critical facilities are involved, or where localized per capita impacts 
might be extremely high.

Insurance Coverage in Force

    For State requests, FEMA considers the amount of insurance coverage 
that is in force, or should have been in force, as required by law and 
regulation at the time of the disaster.

Hazard Mitigation

    For State requests, FEMA also considers the extent to which State 
and local government measures contributed to the reduction of disaster 
damages for the disaster under consideration.

Recent Multiple Disasters

    For State requests, FEMA evaluates the 12-month disaster history to 
better understand the overall impact on the State or locality. FEMA 
considers declarations under the Stafford Act, as well as declarations 
made by the Governor, and the extent to which the State has spent its 
own funds on those disasters.

Programs of Other Federal Assistance

    For State requests, FEMA also considers the programs of other 
Federal agencies because at times, their programs of assistance might 
more appropriately meet the needs created by the disaster.
    FEMA is soliciting comments on whether these factors (localized 
impacts, insurance coverage in force, hazard mitigation, recent 
multiple disasters, and programs of other Federal assistance) are 
appropriate for the evaluation of Indian tribal government requests for 
Public Assistance during the pilot program. FEMA also welcomes comments 
on whether there are additional factors that may be appropriate for 
FEMA to consider when evaluating the level of impact and tribal 
capability to respond to and recover from an event for Public 
Assistance requests from Indian tribal governments.

VIII. Individual Assistance

    When the Governor of a State requests that the President declare a 
major disaster that authorizes Individual Assistance, FEMA uses the 
following criteria to determine whether Federal assistance is needed.
     Concentration of damages.
     Trauma.
     Special populations.
     Voluntary agency assistance.
     Insurance.

Concentration of Damages

    For State requests, FEMA evaluates the concentrations of damages to 
individuals. High concentrations of damages generally indicate a 
greater need for Federal assistance than widespread and scattered 
damages throughout a State.

Trauma

    FEMA considers the degree of trauma to a State and to communities. 
Some of the conditions that might cause trauma are:
     Large numbers of injuries or deaths;
     Large scale disruption of normal community functions and 
services; and
     Emergency needs such as extended or widespread loss of 
power or water.

Special Populations

    FEMA considers whether special populations, such as low-income, the 
elderly, or the unemployed are affected, and whether they may have a 
greater need for assistance. FEMA also

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considers the effect on American Indian and Alaskan Native tribal 
populations in the event that there are any unique needs for people in 
these governmental entities.

Voluntary Agency Assistance

    FEMA considers the extent to which voluntary agencies and State or 
local programs meet the needs of the disaster survivors.

Insurance

    FEMA considers the amount of insurance coverage because, by law, 
Federal disaster assistance cannot duplicate insurance coverage.
    FEMA is soliciting comments on whether these Individual Assistance 
factors are appropriate for FEMA to consider when evaluating an Indian 
tribal government request for Individual Assistance during the pilot 
program. FEMA also welcomes comments on whether there are additional 
factors that may be appropriate for FEMA to consider when evaluating 
Indian tribal government requests for Individual Assistance.

IX. Designating Areas Eligible for Assistance, Definition of Tribal 
Lands

    After the President declares that an emergency or major disaster 
exists in a State, areas within the State are designated as eligible 
for assistance. FEMA's regulatory definition of ``designated area'' 
eligible for assistance under each program (Public Assistance, 
Individual Assistance, and the Hazard Mitigation Grant Program) is 
``any emergency or major disaster-affected portion of a State which has 
been determined eligible for Federal assistance.'' (44 CFR 206.2(a)(4)) 
In practice, FEMA typically identifies counties, parishes, independent 
cities, and Indian tribal governments as ``designated areas'' eligible 
for assistance.
    FEMA is soliciting comments on how FEMA should designate Tribal 
areas eligible for assistance for any or each of the FEMA assistance 
programs (Public Assistance, Individual Assistance, and the Hazard 
Mitigation Grant Program) and what FEMA should use as the definition of 
Tribal lands during the pilot program.

X. Appeals

    When a request for an emergency or major disaster declaration is 
denied, the Governor may appeal the decision. The appeal must be 
submitted within 30 days of the date of the letter denying the request. 
The Governor can make only one appeal. The Governor should include in 
the appeal additional information which supports his/her request for 
supplemental Federal assistance.
    When certain areas that were requested by the Governor are not 
designated, the Governor or Governor's Authorized Representative may 
appeal the decision. The appeal must be submitted within 30 days of the 
date of the letter denying the request. The Governor has only one 
appeal. The Governor or the Governor's Authorized Representative should 
include in the appeal additional information which supports his/her 
request.
    When types of assistance that are requested by the Governor are not 
authorized, the Governor may appeal the decision. The appeal must be 
submitted within 30 days of the date of the letter denying the request. 
The Governor has only one appeal. The Governor should include in the 
appeal additional information which supports his/her request.
    FEMA is soliciting comments on whether this same appeal process 
would be appropriate for Tribal requests during the pilot program.

XI. Cost Share Adjustments

    The Stafford Act directs FEMA to pay ``not less than'' 75-percent 
of the eligible costs for essential assistance (Stafford Act Section 
403, 42 U.S.C. 5170b), repair, restoration, and replacement of damaged 
facilities (Stafford Act Section 406, 42 U.S.C. 5172), and debris 
removal (Stafford Act Section 407, 42 U.S.C. 5173). FEMA's regulations 
outline the criteria FEMA uses to recommend to the President an 
adjustment to the Federal cost share.
    FEMA will recommend the President adjust the Federal cost share 
from 75-percent to not more than 90 percent when actual Federal 
obligations under the Stafford Act meet or exceed $133 (2013) per 
capita of State population. When recommending a cost share adjustment 
to the President, FEMA also considers the impact of major disaster 
declarations in the State during the previous 12-months.
    If warranted by the needs of the disaster, FEMA may recommend up to 
100 percent Federal funding for emergency work under section 403 of the 
Stafford Act (essential assistance) and section 407 of the Stafford Act 
(debris removal), including direct Federal assistance, for a limited 
time in the initial days of the disaster irrespective of the per capita 
impact.
    FEMA is soliciting comments on whether the per capita threshold 
used for States would be appropriate for evaluating whether to 
recommend a cost share adjustment for Tribal declarations during the 
pilot program. FEMA also welcomes comments on what other factors may be 
appropriate for FEMA to consider when evaluating potential cost share 
adjustments for Tribal declarations.

XII. Notification of State and Tribes

    Once the President has made a declaration determination (e.g., 
emergency, major disaster, denial), the Regional Administrator will 
notify the Governor as well as other Federal agencies and other 
interested parties.
    FEMA is soliciting comments on how FEMA can ensure that all 
interested parties, including the Governors of affected States, the 
Chief Executive of affected Indian tribal governments, and other 
Federal agencies are properly notified and informed regarding 
declaration requests and determinations during the pilot program.

XIII. Disaster Unemployment Assistance

    Disaster Unemployment Assistance (DUA) (44 CFR 206.141 and 20 CFR 
625) provides unemployment benefits and re-employment services to 
individuals who have become unemployed as a result of a major disaster 
and who are not eligible for regular State unemployment insurance (UI). 
FEMA has delegated to the Secretary of Labor the responsibility of 
administering the DUA program and payment of DUA benefit assistance.
    Under the current program regulations, applicants are required to 
first apply and exhaust UI through the State workforce agency. Levels 
of UI are based on State formulas, which may be different for each 
State.
    FEMA is soliciting comments on an Indian tribal government's 
ability to administer DUA and the use of State workforce agency to 
apply for regular UI in the absence of a tribal equivalent of a 
workforce agency during the pilot program.

XIV. Disaster Legal Services

    Disaster Legal Services (DLS) (44 CFR 206.164) provides legal 
assistance to low-income individuals who, prior to or as a result of 
the disaster, are unable to secure legal services adequate to meet 
their disaster-related needs. These services are typically provided to 
survivors through an agreement with the Young Lawyers Division of the 
American Bar Association.
    FEMA is soliciting comments on the current access to legal services 
during disasters, if Indian tribal governments have a relationship with 
the Young Lawyers Division of the American Bar Association, and/or 
restrictions on who

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can provide legal advice to tribal members during the pilot program.

    Authority: Pub. L. 113-2.

W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2013-05391 Filed 3-7-13; 8:45 am]
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