### §5170. Procedure for declaration

#### (a) In general

All requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected State. 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 governments and that Federal assistance is necessary. As part of such request, and as a prerequisite to major disaster assistance under this chapter, the Governor shall take appropriate response action under State law and direct execution of the State's emergency plan. The Governor shall furnish information on the nature and amount of State and local resources which have been or will be committed to alleviating the results of the disaster, and shall certify that, for the current disaster, State and local government obligations and expenditures (of which State commitments must be a significant proportion) will comply with all applicable cost-sharing requirements of this chapter. Based on the request of a Governor under this section, the President may declare under this chapter that a major disaster or emergency exists.

#### (b) Indian tribal government requests

#### (1) In general

The Chief Executive of an affected Indian tribal government may submit a request for a declaration by the President that a major disaster exists consistent with the requirements of subsection (a).

#### (2) References

In implementing assistance authorized by the President under this chapter in response to a request of the Chief Executive of an affected Indian tribal government for a major disaster declaration, any reference in this subchapter or subchapter III (except sections 5153 and 5165d of this title) to a State or the Governor of a State is deemed to refer to an affected Indian tribal government or the Chief Executive of an affected Indian tribal government, as appropriate.

#### (3) Savings provision

Nothing in this subsection shall prohibit an Indian tribal government from receiving assistance under this subchapter through a declaration made by the President at the request of a State under subsection (a) if the President does not make a declaration under this subsection for the same incident.

#### (c) Cost share adjustments for Indian tribal governments

#### (1) In general

In providing assistance to an Indian tribal government under this subchapter, the President may waive or adjust any payment of a non-Federal contribution with respect to the assistance if—

(A) the President has the authority to waive or adjust the payment under another provision of this subchapter; and

(B) the President determines that the waiver or adjustment is necessary and appropriate.

#### (2) Criteria for making determinations

The President shall establish criteria for making determinations under paragraph (1)(B).

(Pub. L. 93–288, title IV, §401, as added Pub. L. 100–707, title I, §106(a)(3), Nov. 23, 1988, 102 Stat. 4696; amended Pub. L. 113–2, div. B, §1110(a), Jan. 29, 2013, 127 Stat. 47.)

#### **Editorial Notes**

#### References in Text

This chapter, referred to in subsecs. (a) and (b)(2), was in the original "this Act", meaning Pub. L. 93–288, May 22, 1974, 88 Stat. 143. For complete classification of this Act to the Code, see Short Title note set out under section 5121 of this title and Tables.

#### Prior Provisions

A prior section 401 of Pub. L. 93–288 was renumbered section 405 by Pub. L. 100–707 and is classified to section 5171 of this title.

#### Amendments

2013—Pub. L. 113–2 designated existing provisions as subsec. (a), inserted heading, and added subsecs. (b) and (c).

#### **Statutory Notes and Related Subsidiaries**

#### Preliminary Damage Assessment

Pub. L. 117–263, div. E, title LVI, §5603, Dec. 23, 2022, 136 Stat. 3405, provided that:

"(a) Findings.—Congress finds the following:

"(1) Preliminary damage assessments play a critical role in assessing and validating the impact and magnitude of a disaster.

"(2) Through the preliminary damage assessment process, representatives from the Federal Emergency Management Agency validate information gathered by State and local officials that serves as the basis for disaster assistance requests.

"(3) Various factors can impact the duration of a preliminary damage assessment and the corresponding submission of a major disaster request, however, the average time between when a disaster occurs, and the submission of a corresponding disaster request has been found to be approximately twenty days longer for flooding disasters.

"(4) With communities across the country facing increased instances of catastrophic flooding and other extreme weather events, accurate and efficient preliminary damage assessments have become critically important to the relief process for impacted States and municipalities.

"(b) Report to Congress.—

"(1) In general.—Not later than 90 days after the date of enactment of this Act [Dec. 23, 2022], the Administrator of the Federal Emergency Management Agency shall submit to Congress a report describing the preliminary damage assessment process, as supported by the Federal Emergency Management Agency in the 5 years before the date of enactment of this Act.

"(2) Contents.—The report described in paragraph (1) shall contain the following:

"(A) The process of the Federal Emergency Management Agency for deploying personnel to support preliminary damage assessments.

"(B) The number of Agency staff participating on disaster assessment teams.

"(C) The training and experience of such staff described in subparagraph (B).

"(D) A calculation of the average amount of time disaster assessment teams described in subparagraph (A) are deployed to a disaster area.

"(E) The efforts of the Agency to maintain a consistent liaison between the Agency and State, local, tribal, and territorial officials within a disaster area.

"(c) Preliminary Damage Assessment.—

"(1) In general.—Not later than 6 months after the date of enactment of this Act, the Administrator of the Federal Emergency Management Agency shall convene an advisory panel consisting of emergency management personnel employed by State, local, territorial, or tribal authorities, and the representative organizations of such personnel to assist the Agency in improving critical components of the preliminary damage assessment process.

"(2) Membership.—

"(A) In general.—This advisory panel shall consist of at least 2 representatives from national emergency management organizations and at least 1 representative from each of the 10 regions of the Federal Emergency Management Agency, selected from emergency management personnel employed by State, local, territorial, or tribal authorities within each region.

"(B) Inclusion on panel.—To the furthest extent practicable, representation on the advisory panel shall include emergency management personnel from both rural and urban jurisdictions.

"(3) Considerations.—The advisory panel convened under paragraph (1) shall—

"(A) consider—

"(i) establishing a training regime to ensure preliminary damage assessments are conducted and reviewed under consistent guidelines;

"(ii) utilizing a common technological platform to integrate data collected by State and local governments with data collected by the Agency; and

"(iii) assessing instruction materials provided by the Agency for omissions of pertinent information or language that conflicts with other statutory requirements; and

"(B) identify opportunities for streamlining the consideration of preliminary damage assessments by the Agency, including eliminating duplicative paperwork requirements and ensuring consistent communication and decision making among Agency staff.

"(4) Interim report.—Not later than 18 months after the date of enactment of this Act, the Administrator shall submit to Congress a report regarding the findings of the advisory panel, steps that will be undertaken by the Agency to implement the findings of the advisory panel, and additional legislation that may be necessary to implement the findings of the advisory panel.

"(5) Rulemaking and final report.—Not later than 2 years after the date of enactment of this Act, the Administrator shall issue such regulations as are necessary to implement the recommendations of the advisory panel and submit to Congress a report discussing—

"(A) the implementation of recommendations from the advisory panel;

"(B) the identification of any additional challenges to the preliminary damage assessment process, including whether specific disasters result in longer preliminary damage assessments; and

"(C) any additional legislative recommendations necessary to improve the preliminary damage assessment process."

#### Local Impact

Pub. L. 115–254, div. D, §1232, Oct. 5, 2018, 132 Stat. 3460, provided that:

"(a) In General.—In making recommendations to the President regarding a major disaster declaration, the Administrator of the Federal Emergency Management Agency shall give greater consideration to severe local impact or recent multiple disasters. Further, the Administrator shall make corresponding adjustments to the [Federal Emergency Management] Agency's policies and regulations regarding such consideration. Not later than 1 year after the date of enactment of this section [Oct. 5, 2018], the Administrator shall report to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate on the changes made to regulations and policies and the number of declarations that have been declared based on the new criteria.

"(b) Effective Date.—This section shall be effective on the date of enactment of this Act [Oct. 5, 2018]."

#### Cost of Assistance Estimates

Pub. L. 115–254, div. D, §1239, Oct. 5, 2018, 132 Stat. 3466, provided that:

"(a) In General.—Not later than 270 days after the date of enactment of this Act [Oct. 5, 2018], the Administrator [of the Federal Emergency Management Agency] shall review the factors considered when evaluating a request for a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), specifically the estimated cost of the assistance, and provide a report and briefing to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives.

"(b) Rulemaking.—Not later than 2 years after the date of enactment of this Act, the Administrator shall review and initiate a rulemaking to update the factors considered when evaluating a Governor's request for a major disaster declaration, including reviewing how the [Federal Emergency Management] Agency estimates the cost of major disaster assistance, and consider other impacts on the capacity of a jurisdiction to respond to disasters. In determining the capacity of a jurisdiction to respond to disasters, and prior to the issuance of such a rule, the Administrator shall engage in meaningful consultation with relevant representatives of State, regional, local, and Indian tribal government stakeholders."

[For definition of "State" as used in section 1239 of Pub. L. 115–254, set out above, see section 1203 of Pub. L. 115–254, set out as a note under section 5122 of this title.]

#### Individual Assistance Factors

Pub. L. 113–2, div. B, §1109, Jan. 29, 2013, 127 Stat. 47, provided that: "In order to provide more objective criteria for evaluating the need for assistance to individuals, to clarify the threshold for eligibility and to speed a declaration of a major disaster or emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), not later than 1 year after the date of enactment of this division [Jan. 29, 2013], the Administrator of the Federal Emergency Management Agency, in cooperation with representatives of State, tribal, and local emergency management agencies, shall review, update, and revise through rulemaking the factors considered under section 206.48 of title 44, Code of Federal Regulations (including section 206.48(b)(2) of such title relating to trauma and the specific conditions or losses that contribute to trauma), to measure the severity, magnitude, and impact of a disaster."