STAFFORD ACT DECLARATION PROCESS

STAFFORD ACT DECLARATION PROCESS

This fact sheet is intended to provide general information regarding the Stafford Act declaration process. All emergency and major disaster declarations are made solely at the discretion of the President of the United States.

The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207 (the Stafford Act) §401 states in part that: “All requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected State.” A State also includes the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. The Republic of Marshall Islands and the Federated States of Micronesia are also eligible to request a declaration and receive assistance through the Compacts of Free Association.

As a result of the Sandy Recovery Improvement Act, federally recognized Indian tribal governments now have the option of pursuing a declaration directly from the President. While this fact sheet may be informative for Indian tribal governments, FEMA is developing Tribal Declarations Pilot Guidance, which will provide more detailed and specific guidance for Tribal requests.

FEMA has codified the declaration process at 44 C.F.R. Part 206, Subpart B.

Preliminary Damage Assessment

If it is apparent that a Presidential disaster declaration may be necessary to assist in the recovery of the impacted area, the State or Indian tribal government should contact their FEMA Regional Office and request a joint Federal, State/Tribal Preliminary Damage Assessment (PDA). Local government representatives should be included, if possible. Together, the team will conduct a thorough assessment of the impacted area to determine the extent of the disaster, its impact on individuals and public facilities, and the types of federal assistance that may be needed. This information is included in the Governor or Tribal Chief Executive’s request to show that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments or Indian tribal government and that supplemental federal assistance is necessary.

State or Indian Tribal Government Resources Overwhelmed

Once the PDA is complete and the State or Indian tribal government determines that the damage exceeds their resources, the Governor or Tribal Chief Executive may submit a declaration request to the President through their FEMA Regional Office. As part of the request, the Governor or Tribal Chief Executive must take appropriate action under State or Tribal law and direct the execution of the State or Tribal emergency plan. The Governor or Tribal Chief Executive shall furnish information on the nature and amount of State and local or Indian tribal government resources that have been or will be committed to alleviating the results of the disaster, provide an estimate of the amount and severity of damage and the impact on the private and public sectors, and provide an estimate of the type and amount of assistance needed under the Stafford Act. In addition, the Governor or Tribal Chief Executive must certify that, for the current disaster, State and local governments or Indian tribal government obligations and expenditures will comply with all applicable cost-sharing requirements.

Declaration Process

Declaration Process

Generally, the PDA is completed prior to the submission of the Governor or Tribal Chief Executive’s request for a major disaster declaration. However, when an obviously severe or catastrophic event occurs, the Governor or Tribal Chief Executive’s request may be submitted prior to completion of the PDA.1 In such circumstances the major disaster will generally be limited to Public Assistance Categories A and/or B (which may be further limited to Direct Federal Assistance (DFA)) and Hazard Mitigation Assistance. For high-impact events where the level of damage to residences is empirically overwhelming, the declaration may also include Individual Assistance. Additional forms of assistance may be added at a later date, pending the completion of PDAs.

Declaration Types

There are two types of disaster declarations provided for in the Stafford Act: emergency declarations and major disaster declarations.2 Both declaration types authorize the President to provide supplemental federal disaster assistance. However, the events related to the two different types of declaration and scope and amount of assistance differ.
1 44 C.F.R. §206.33(d)
2 FEMA has established a third type of declaration, Fire Management Assistance Grant (FMAG) declarations, through regulation. That process differs significantly from the emergency and major disaster processes. More information regarding the FMAG program can be found here: http://www.fema.gov/fire-management-assistance-grant-program

Emergency Declarations: The President can declare an emergency for any occasion or instance when the President determines federal assistance is needed. Emergency declarations supplement State and local or Indian tribal government efforts in providing emergency services, such as the protection of lives, property, public health, and safety, or to lessen or avert the threat of a catastrophe in any part of the United States. The total amount of assistance provided for a single emergency may not exceed $5 million. The President shall report to Congress if this amount is exceeded.

Requirements: The Governor of the affected State or Tribal Chief Executive of the affected Tribe must submit a request to the President, through the appropriate Regional Administrator, within 30 days of the occurrence of the incident. The request must be based upon a finding that the situation is beyond the capability of the State and affected local governments or Indian tribal government and that supplemental federal emergency assistance is necessary to save lives and protect property, public health and safety, or to lessen or avert the threat of a disaster. In addition, the request must include:

Confirmation that the Governor or Tribal Chief Executive has taken   appropriate action under State or Tribal law and directed the execution of the State or Tribal emergency plan;

A description of the State and local or Indian tribal government efforts and resources utilized to alleviate the emergency;

A description of other federal agency efforts and resources utilized in response to the emergency; and

A description of the type and extent of additional federal assistance required.

Assistance Available Under Emergency Declarations:

Public Assistance (PA) – Only Categories A (debris removal) and B (emergency  protective measures) may be authorized under an emergency declaration. Categories C-G (permanent work) are not available under an emergency declaration. Emergency declarations often include only Category B and will typically be limited to DFA, absent damage assessments showing significant need for financial assistance. This assistance is generally provided on a 75% federal, 25% non-federal cost sharing basis.

Individual Assistance (IA) – The Individuals and Households Program (IHP) is the only form of IA that may be authorized under an emergency declaration. Authorization of IHP under an emergency is rare. Housing Assistance under IHP is provided at a 100% federal share, while Other Needs Assistance under IHP requires a 25% non-federal cost share.

The Hazard Mitigation Grant Program (HMGP) is not available for emergency declarations.
3 44 C.F.R. §206.35

Pre-Disaster Emergency Declarations

: A Governor or Tribal Chief Executive may request an emergency declaration in advance or anticipation of the imminent impact of an incident that threatens such destruction as could result in a major disaster. Such requests must meet all of the statutory and regulatory requirements for an emergency declaration request. Requests must demonstrate the existence of critical emergency protective measure needs prior to impact are beyond the capability of the State and affected local governments or Indian tribal government and identify specific unmet emergency needs that can be met through DFA. Such DFA may include, but is not limited to, personnel, equipment, supplies, and evacuation assistance. Pre-positioning of assets generally does not require a declaration. Assistance made available under a pre-disaster emergency declaration will typically be Category B (emergency protective measures), limited to DFA. FEMA may require damage assessments and/or verified cost estimates if additional types of assistance are requested.

Emergency Declarations with Federal Primary Responsibility: When an emergency exists for which the primary responsibility rests with the Federal government, the President may declare an emergency without a request from the Governor of the affected State or the Tribal Chief Executive of the affected Tribe. Such an emergency declaration does not prevent the Governor or Tribal Chief Executive from subsequently requesting a major disaster declaration for other unmet needs caused by the event.

Major Disaster Declarations: The President can declare a major disaster for any natural event, including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought, or, regardless of cause, fire, flood, or explosion, that the President determines has caused damage of such severity that it is beyond the combined capabilities of state and local governments to respond. A major disaster declaration provides a wide range of federal assistance programs for individuals and public infrastructure, including funds for both emergency and permanent work.

Requirements

: The Governor of the affected State or Tribal Chief Executive of the affected Tribe must submit the request to the President through the appropriate Regional Administrator within 30 days of the occurrence of the incident. The request must based upon a finding that the situation is beyond the capability of the State and affected local governments or Indian tribal government and that supplemental federal assistance is necessary. In addition the request must include:

• Confirmation that the Governor or Tribal Chief Executive has taken appropriate action under State or Tribal law and directed execution of the State or Tribal emergency plan;
• An estimate of the amount and severity of damage to the public and private sector;
• A description of the State and local or Indian tribal government efforts and resources utilized to alleviate the disaster;
• Preliminary estimates of the type and amount of Stafford Act assistance needed; and
• Certification by the Governor or Tribal Chief Executive that the State and local governments or Indian tribal government will comply with all applicable cost sharing requirements.

Assistance Available Under Major Disaster Declarations: Not all programs, however, are activated for every disaster. The determination of which programs are authorized is based on the types of assistance specified in the Governor or Tribal Chief Executive’s request and the needs identified during the joint PDA and subsequent PDAs. FEMA disaster assistance programs are as follows:

• Individual Assistance – Assistance to individuals and households, which may include:

o Individuals and Households Program;
o Crisis Counseling Program
o Disaster Case Management
o Disaster Unemployment Assistance
o Disaster Legal Services
o Disaster Supplemental Nutrition Assistance Program

• Public Assistance – Assistance to State, Tribal, and local governments and certain private nonprofit organizations for emergency work and the repair or replacement of disaster-damaged facilities, which may include the following Categories:

o A – Debris removal
o B – Emergency protective measures
o C – Roads and bridges
o D – Water control facilities
o E – Buildings and equipment
o F – Utilities
o G – Parks, recreational and other facilities

• Hazard Mitigation Assistance – Assistance to State, Tribal, 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.

Factors: When evaluating requests for major disasters and making recommendations to the President, FEMA considers the following factors6:

(a) Public Assistance Program

1) Estimated cost of the assistance
2) Localized impacts
3) Insurance coverage in force
4) Hazard Mitigation
5) Recent multiple disasters
6) Other federal agency assistance programs

(b) Individual Assistance Program

1) Concentration of damage
2) Trauma
3) Special populations
4) Voluntary agency assistance
5) Insurance
6) Damaged residences – severity and number.

Appeals: The Governor or Tribal Chief Executive can appeal the denial of a major disaster or emergency declaration request. The appeal must be submitted within 30 days of the date of the denial letter and should include additional information justifying the need for supplemental federal assistance.

Post Declaration Actions

Add-ons: The Governor, the Governor’s Authorized Representative (GAR), or Tribal Chief Executive can request designation of additional counties and programs within 30 days of the declaration or the end of the incident period, whichever is later. The Governor, GAR, or Tribal Chief Executive may submit an extension request within the 30-day period, providing a valid reason supporting an extension.

Cost Share Adjustments: The authority to adjust the Public Assistance cost share resides with the President. FEMA will recommend an increase in the federal share to not more than 90% for Public Assistance when a disaster is so extraordinary that actual federal obligations under the Stafford Act, excluding administrative cost, meet or exceed a qualifying threshold.7

Appeals: Post declaration determinations are generally subject to a one-time appeal. Such appeals must be submitted within 30 days of the denial letter. This deadline may be extended by FEMA, upon request of the State or Indian tribal government. Extension requests must be submitted within the 30 day deadline.

DISASTER DECLARATION CRITERIA

FEMA considers a combination of factors when evaluating a Governor’s request for a major disaster declaration and in making a recommendation to the President for final determination on the declaration of a major disaster or emergency. These factors include issues which revolve around the specific needs of different communities, including those States with small populations or unique circumstances. The different needs of all States are carefully considered through the declaration process, irrespective of the size of the State’s population and FEMA does not use an arithmetical formula as a sole determining factor.

FEMA regulations outline the factors the Agency considers when evaluating a Governor’s request for Federal assistance. While these factors include assessments of damage and impact, the Stafford Act prohibits the denial of assistance solely on the basis of arithmetic formulas or sliding scales based on income or population (Section 320).  FEMA’s declaration regulations do not make a distinction or apply different criteria for States based on different categories of population size. For Public Assistance, however, FEMA does review analysis of the impact of a disaster based on a per capita estimation of eligible costs. The same per capita factor is applied to all States and territories regardless of overall size of the population. There is no per capita indicator established as a factor for the consideration of Individual Assistance.

Public Assistance

FEMA’s Public Assistance (PA) program provides supplemental assistance to State, local and tribal governments, as well as certain private non-profit organizations, for emergency measures to protect public health and safety and for the repair and restoration of facilities damaged in major disasters.  FEMA considers multiple factors when making a recommendation to the President regarding the provision of PA under a Presidential disaster declaration. As outlined in FEMA regulations, these factors include:

  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 percapita impact within the State. FEMA uses a per capita amount as an indicator that the disaster is of such size and magnitude that it might warrant Federal assistance, and adjusts this figure annually, based on the Consumer Price Index. For Fiscal Year 2016, the State percapita amount is $1.41. FEMA has also established a county per capita amount of $3.57.
  2. Localized impacts. FEMA evaluates the impact of the disaster at the county and local government levels, as well as 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 (such as major roadways, bridges, public buildings, etc.) are affected or where localized per capita impacts are extremely high. For example, localized damages may be in the tens or even hundreds of dollars per capita, even though the overall statewide per capita impact is 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 then 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 example, if a State can demonstrate in its disaster request that State-wide building codes 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 also considers the disaster history within the last twelvemonth 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 (U.S. Army Corps of Engineers, Federal Highway Administration, etc.) because at times their assistance programs more appropriately meet the needs created by the disaster.

Individual Assistance

Through Individual Assistance (IA) programs, FEMA provides assistance to individuals and households who have suffered losses and have outstanding needs as the result of a major disaster. These programs can provide eligible disaster victims with assistance for home repairs, temporary housing, and other outstanding needs such as medical, dental and funeral expenses resulting from the disaster. Other IA programs include crisis counseling and disaster unemployment assistance. FEMA considers multiple factors when making a recommendation to the President regarding the provision of IA under a Presidential disaster declaration. As outlined in FEMA regulations, these factors include:

  1. Concentration of damages to individuals. High concentrations of damages to
    individuals, such as destroyed and damaged housing, may indicate a greater need for Federal assistance than widespread and scattered damages throughout a State.
  2. Trauma. The degree of trauma to the State and communities is considered, with special attention to large numbers of injuries and deaths, large scale disruptions to normal community functions and services, and emergency needs, such as extended or widespread losses of power or water.
  3. Special Populations. FEMA considers the impact of the disaster on special populations, such as the low-income, the elderly, and the unemployed. Special consideration is also “FEMA’s mission is to support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards.” Federal Emergency Management Agency given to the effect of the disaster on American Indian and Alaskan Native tribal populations.
  4. Voluntary agency assistance. The capabilities of local and State voluntary, faith, and community-based organizations are taken into consideration, as these entities play an important role in meeting both the emergency and recovery needs of individuals impacted by disasters.
  5. Insurance. Stafford Act assistance is supplemental in nature, and therefore the level of insurance coverage is taken into account; primarily to qualify the scope of necessary assistance.
  6. Average amount of individual assistance by State size. While there is no set threshold for recommending individual assistance, the average amount of assistance historically provided to individuals and households is published in FEMA regulations[1], and may be useful to States and voluntary agencies as they develop plans and programs to help disaster victims. It includes an indication of the number of homes that were destroyed or received major damage in previously declared disasters. The impact to housing is a primary factor when evaluating a request for Individual Assistance. When conducting joint Preliminary Damage Assessments with an affected State, FEMA evaluates the total number of homes destroyed and damaged, as well as evaluates the accessibility and habitability of the dwellings and the community.

FOOT NOTES

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