Robert T. Stafford Disaster Relief and Emergency Assistance Act: Legal Requirements for Federal and State Roles in Declarations of an Emergency or a Major Disaster
Released: 2005-10-19T00:00:00

The Declaration Process

The Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 42U.S.C. Â§ 5121 et seq. , is designed to provide a means by which the federal government maysupplement state and local resources in major disasters or emergencies where those state and localresources have been or will be overwhelmed. The Act provides separate but similar mechanisms fordeclaration of a major disaster and for declaration of an emergency. Except to the extent that anemergency involves primarily federal interests, both declarations of major disaster and declarationsof emergency must be triggered by a request to the President from the Governor of the affected state. The pertinent provisions with respect to such declarations are set forth in Section 401 of the StaffordAct, 42 U.S.C. Â§ 5170, with respect to major disasters declarations and in Section 501 of the StaffordAct, 42 U.S.C. Â§ 5191, with respect to emergency declarations:

Â§ 5170. Procedure fordeclaration

All requests for a declaration by the President that amajor disaster exists shall be made by the Governor of the affected State. Such a request shall bebased on a finding that the disaster is of such severity and magnitude that effective response isbeyond the capabilities of the State and the affected local governments and that Federal assistanceis necessary. As part of such request, and as a prerequisite to major disaster assistance under thischapter, the Governor shall take appropriate response action under State law and direct executionof the State's emergency plan. The Governor shall furnish information on the nature and amount ofState and local resources which have been or will be committed to alleviating the results of thedisaster, and shall certify that, for the current disaster, State and local government obligations andexpenditures (of which State commitments must be a significant proportion) will comply with allapplicable cost-sharing requirements of this chapter. Based on the request of a Governor under thissection, the President may declare under this chapter that a major disaster or emergency exists. (1)

Â§ 5191. Procedure fordeclaration

(a) Request anddeclaration

All requests for a declaration by the President that anemergency exists shall be made by the Governor of the affected State. Such a request shall be basedon a finding that the situation is of such severity and magnitude that effective response is beyond thecapabilities of the State and the affected local governments and that Federal assistance is necessary.As a part of such request, and as a prerequisite to emergency assistance under this chapter, theGovernor shall take appropriate action under State law and direct execution of the State's emergencyplan. The Governor shall furnish information describing the State and local efforts and resourceswhich have been or will be used to alleviate the emergency, and will define the type and extent ofFederal aid required. Based upon such Governor's request, the President may declare that anemergency exists.

(b) Certain emergencies involving Federal primaryresponsibility

The President mayexercise any authority vested in him by section 5192 of this title or section 5193 of this title withrespect to an emergency when he determines that an emergency exists for which the primaryresponsibility for response rests with the United States because the emergency involves a subject areafor which, under the Constitution or laws of the United States, the United States exercises exclusiveor preeminent responsibility and authority. In determining whether or not such an emergency exists,the President shall consult the Governor of any affected State, if practicable. The President'sdetermination may be made without regard to subsection (a) of this section. (2)

When an incident occurs or is imminent which the state official responsible for disasteroperations determines may exceed state and local response capabilities, the state will request theFEMA Regional Director to perform a joint FEMA-state preliminary damage assessment (PDA). This provides a means to determine the impact and magnitude of damage and resulting unmet needsof individuals, businesses, the public sector, and the affected community as a whole. Informationcollected in this way is used by the state as a basis for the Governor's request for a presidentialproclamation and by FEMA to document its recommendation to the President in response to theGovernor's request. The requirement for a joint PDA may be waived for those incidents of unusualseverity and magnitude that do not require field damage assessments to determine that supplementalfederal assistance will be needed, or in other situations determined by the Regional Director inconsultation with the State. An assessment may still be needed to determine unmet needs formanagerial response purposes. (3)

Once a request from the Governor of an affected state is received by the FEMA RegionalDirector whose region covers that state, the Regional Director provides a written acknowledgmentof receipt of the request. Based on the joint PDA(s) and consultation with appropriate state andfederal officials and other interested parties, the Regional Director then promptly prepares asummary of the PDA findings. An analysis of this information, including an examination of stateand local resources and capabilities and other assistance available to meet the needs associated withthe emergency or major disaster, is submitted with a recommendation to the Director of the RecoveryDivision of FEMA. (4) Based on available information, the Director of FEMA makes a recommendation on the Governor'srequest to the President. A major disaster recommendation is based upon a finding that the situationis or is not of such severity and magnitude as to be beyond the capabilities of the state and localgovernments. It also contains a determination of whether or not supplemental federal Stafford Actassistance is necessary and appropriate. (5) An emergency recommendation is based on a report indicatingwhether or not federal emergency assistance is necessary to supplement state and local efforts to savelives, protect property and public health and safety, or to lessen or avert the threat of a catastrophe. FEMA will only recommend an emergency declaration if it has been determined that all otherresources and authorities to meet the crisis are inadequate and that Stafford Act emergency assistancewould be appropriate. A modified federal emergency recommendation would be made based on areport as to whether an emergency does or does not exist for which Stafford Act emergencyassistance would be appropriate. Such a recommendation would not be forthcoming in situationswhere the authority to respond or coordinate is within the jurisdiction of one or more federalagencies without a Presidential declaration. A modified federal emergency recommendation byFEMA for an emergency declaration by the President would not be foreclosed by other federalagency involvement if there are significant unmet needs of sufficient severity and magnitude, notaddressed by other assistance, which could appropriately be addressed under the Stafford Act. (6)

The President may respond to a Governor's request for a declaration of a major disaster bya declaration of an emergency, a declaration of a major disaster, or a denial of the request. Inresponse to a Governor's request for a declaration of emergency, the President's options are limitedto declaration of an emergency or denial of the request. (7) A denial of a declaration request may be appealed within 30 daysof the date of the denial letter, submitted with additional information to the President through theRegional Director. (8) Anextension of the time limit may be sought within the 30 day time frame from the Director of theRecovery Division upon written request citing the reasons for the delay. (9)

Once the decision is made, the FEMA Director or his or her designee must promptly notifythe Governor. If the President has declared a major disaster or an emergency, FEMA must alsonotify other federal agencies and interested parties. Following either type of declaration, theRegional Director or Director of the Recovery Division (10) is to promptly notify the Governor of the designations ofassistance and of the areas eligible for such assistance. (11) The determinations of the types of assistance to be madeavailable and the areas eligible to receive such assistance are made by the Director of the RecoveryDivision of FEMA. (12) A denial of the types of assistance or areas eligible to receive assistance may be made in writingwithin 30 days of the date of the denial letter, accompanied with justification and/or additionalinformation to the Director, Recovery Division, through the Regional Director. (13) The Director of theRecovery Division may extend the time for filing the appeal upon written request received duringthe 30 day time frame citing reasons for the delay. (14)

Once a declaration of an emergency or a major disaster is made by the President, the Directorof FEMA, or, in his absence the Deputy Director or the Director, Recovery Division, must appointa Federal Coordinating Officer (FCO) who shall immediately initiate action to assure that federalassistance is provided in accordance with the declaration, applicable laws and regulations, and theFEMA-state agreement entered into pursuant to 44 C.F.R. Â§206.44. The FEMA Regional Directorwill designate a Disaster Recovery Manager to exercise all of the Regional Director's authority ina major disaster or emergency. Once a declaration is made, the Governor is to designate a StateCoordinating Officer to coordinate state and local assistance efforts with federal efforts. TheGovernor's Authorized Representative designated by the Governor in the FEMA-state agreement isto administer federal disaster assistance programs on behalf of the state and local governments andother grant or loan recipients and is also responsible for state compliance with the FEMA-stateagreement. (15) TheFCO's responsibilities following a declaration of a major disaster or emergency are to:

(a) . . .

(1) Make an initial appraisal of the types ofassistance most urgently needed;

(2) Incoordinationwith the SCO,establish fieldoffices andDisasterApplicationCenters asnecessary tocoordinate andmonitorassistanceprograms,disseminateinformation,acceptapplications,and counselindividuals,families andbusinessesconcerningavailableassistance;

(3) Coordinatetheadministrationof relief,includingactivities ofState and localgovernments,activities ofFederalagencies, andthose of theAmerican RedCross, theSalvationArmy, theMennoniteDisasterService, andother voluntaryrelieforganizationswhich agree tooperate underthe FCO'sadvice anddirection;

(4) Undertakeappropriateaction to makecertain that allof the Federalagencies arecarrying outtheirappropriatedisasterassistance rolesunder theirown legislativeauthorities andoperationalpolicies; and

(5) Take otheraction,consistent withthe provisionsof the StaffordAct, asnecessary toassist citizensand publicofficials inpromptlyobtainingassistance towhich they areentitled.

(b) The SCOcoordinates State and local disaster assistance efforts with those of the Federal Government workingclosely with the FCO. The SCO is the principal point of contact regarding coordination of State andlocal disaster relief activities, and implementation of the State emergency plan. The functions,responsibilities, and authorities of the SCO are set forth in the State emergency plan. It is theresponsibility of the SCO to ensure that all affected local jurisdictions are informed of thedeclaration, the types of assistance authorized, and the areas eligible to receive such assistance.

The FCO may activate emergency support teams of federal program and support personnel to bedeployed to the affected areas to assist the FCO in carrying out his or her Stafford Actresponsibilities. (16)

If the Governor so requests, the Director of the Recovery Division of FEMA (17) may lend or advance to thestate, either for its own use or for the use of public or private nonprofit applicants for disasterassistance under the Stafford Act, the portion of assistance for which the state or other eligibledisaster assistance applicant is responsible under the cost-sharing provisions (18) in any case in which:

(1) The State or other eligible disaster assistanceapplicant is unable to assume their financial responsibility under such cost sharing provisions:

(i) As a resultof concurrent,multiple majordisasters in ajurisdiction, or

(ii) Afterincurringextraordinarycosts as aresult of aparticulardisaster;

(2) The damagescaused by such disasters or disaster are so overwhelming and severe that it is not possible for theState or other eligible disaster assistance applicant to immediately assume their financialresponsibility under the Act; and

(3) The State and theother eligible disaster applicants are not delinquent in payment of any debts to FEMA incurred asa result of Presidentially declared major disasters or emergencies.

Such loans must be repaid to the United States with interest, and the Governor must include arepayment schedule as part of the request for the advance. (19) Denial of a Governor'srequest for an advance of a non-federal share may be appealed in writing within 30 days of the dateof the denial letter accompanied by justification and/or additional information sent to the Directorof the Recovery Division through the Regional Director. (20) The Director of the Recovery Division may extend the time forfiling upon written request filed with reasons for the delay within the original 30 day timeperiod. (21)

Types of Disaster Assistance Available under Major Disaster Declarations

Eligibility for disaster assistance begins on the date of the occurrence of the event whichresults in a declaration a major disaster exists, except that reasonable expenses incurred inanticipation of and immediately preceding the event may also be eligible for federal assistance. (22) A major disasterdeclaration by the President opens the door to two types of federal disaster assistance: general federalassistance under Section 402(a) of the Stafford Act, 42 U.S.C. Â§ 5170a, and essential federalassistance under Section 403 of the Stafford Act, 42 U.S.C. Â§ 5170b. These provide:

Â§ 5170a. General Federal assistance

In any major disaster, the President may --

(1) direct any Federalagency, with or without reimbursement, to utilize its authorities and the resources granted to it underFederal law (including personnel, equipment, supplies, facilities, and managerial, technical, andadvisory services) in support of State and local assistance efforts;

(2) coordinate alldisaster relief assistance (including voluntary assistance) provided by Federal agencies, privateorganizations, and State and local governments;

(3) provide technicaland advisory assistance to affected State and local governments for --

(A) theperformance ofessentialcommunityservices;

(B) issuance ofwarnings ofrisks andhazards;

(C) public health and safety information,including dissemination of such information;

(D) provisionof health andsafetymeasures; and

(E)management,control, andreduction ofimmediatethreats topublic healthand safety; and

(4) assist State andlocal governments in the distribution of medicine, food, and other consumable supplies, andemergency assistance.

Â§ 5170b. Essentialassistance

(a) In general

Federal agencies mayon the direction of the President, provide assistance essential to meeting immediate threats to life andproperty resulting from a major disaster, as follows:

(1) Federalresources,generally

Utilizing, lending, or donating to State andlocal governments Federal equipment,supplies, facilities, personnel, and otherresources, other than the extension of credit,for use or distribution by such governments inaccordance with the purposes of this chapter.

(2) Medicine,food, and otherconsumables

Distributing orrenderingthrough Stateand localgovernments,the AmericanNational RedCross, theSalvationArmy, theMennoniteDisasterService, andother relief anddisasterassistanceorganizationsmedicine,food, and otherconsumablesupplies, andother servicesand assistanceto disastervictims.

(3) Work andservices tosave lives andprotectproperty

Performing onpublic orprivate lands orwaters anywork orservicesessential tosaving livesand protectingand preservingproperty orpublic healthand safety,including --

(A)debrisremoval;

(B)searchandrescue,emergencymedical care,emergencymasscare,emergencyshelter,andprovision offood,water,medicine, andotheressentialneeds,includingmovement ofsupplies orpersons;

(C)clearance ofroadsandconstruction oftemporarybridgesnecessary totheperformanceofemergencytasksandessentialcommunityservices;

(D)provision oftemporaryfacilities forschoolsandotheressentialcommunityservices;

(E)demolition ofunsafestructureswhichendanger thepublic;

(F)warning offurtherrisksandhazards;

(G)disseminationofpublicinformationandassistanceregardinghealthandsafetymeasures;

(H)provision oftechnicaladviceto Stateandlocalgovernmentsondisastermanagementandcontrol;and

(I)reduction ofimmediatethreatsto life,property, andpublichealthandsafety.

(4)Contributions

Making contributions to State or localgovernments or owners or operators of privatenonprofit facilities for the purpose of carryingout the provisions of this subsection.

(b) Federal share

The Federal shareof assistance under this section shall be not less than 75 percent of the eligible cost of suchassistance.

(c) Utilization ofDOD resources

(1) Generalrule

During theimmediateaftermath of anincident whichmay ultimatelyqualify forassistanceunder thissubchapter orsubchapterIV-A of thischapter, theGovernor ofthe State inwhich suchincidentoccurred mayrequest thePresident todirect theSecretary ofDefense toutilize theresources ofthe Departmentof Defense forthe purpose ofperforming onpublic andprivate landsany emergencywork which ismadenecessary bysuch incidentand which isessential forthepreservation oflife andproperty. If thePresidentdetermines thatsuch work isessential forthepreservation oflife andproperty, thePresident shallgrant suchrequest to theextent thePresidentdeterminespracticable.Suchemergencywork may onlybe carried outfor a period notto exceed 10days.

(2) Rulesapplicable todebris removal

Any removalof debris andwreckagecarried outunder thissubsectionshall be subjectto section5173(b) of thistitle, relating tounconditionalauthorizationandindemnification for debrisremoval.

(3)Expendituresout of disasterrelief funds

The cost of anyassistanceprovidedpursuant to thissubsectionshall bereimbursed outof funds madeavailable tocarry out thischapter.

(4) Federalshare

The Federalshare ofassistanceunder thissubsectionshall be notless than 75percent.

(5) Guidelines

Not later than180 days afterNovember 23,1988, thePresident shallissueguidelines forcarrying outthis subsection.Suchguidelinesshall considerany likelyeffectassistanceunder thissubsection willhave on theavailability ofother forms ofassistanceunder thischapter.

(6) Definitions

For purposesof this section--

(A)Department ofDefense

The term "Department of Defense" hasthe meaning the term "department" hasunder section 101 of Title 10.

(B)Emergencywork

Theterm"emergencywork"includesclearance andremoval ofdebrisandwreckage andtemporaryrestoration ofessentialpublicfacilities andservices. (23)

Types of Emergency Assistance Made Available by a Declaration of Emergency

The declaration of an emergency by the President makes federal emergency assistanceavailable. The pertinent statutory provision, Section 502 of the Stafford Act, 42 U.S.C. Â§ 5192,states:

Â§ 5192. Federal emergency assistance

(a) Specified

In any emergency, the President may --

(1) direct anyFederalagency, with orwithoutreimbursement, to utilize itsauthorities andthe resourcesgranted to itunder Federallaw (includingpersonnel,equipment,supplies,facilities, andmanagerial,technical andadvisoryservices) insupport ofState and localemergencyassistanceefforts to savelives, protectproperty andpublic healthand safety, andlessen or avertthe threat of acatastrophe;

(2) coordinateall disasterreliefassistance(includingvoluntaryassistance)provided byFederalagencies,privateorganizations,and State andlocalgovernments;

(3) providetechnical andadvisoryassistance toaffected Stateand localgovernmentsfor --

(A) theperformanceofessentialcommunityservices;

(B)issuance ofwarnings ofrisks orhazards;

(C)publichealthandsafetyinformation,includingdisseminationof suchinformation;

(D) provision of health and safetymeasures; and

(E)management,control,andreduction ofimmediatethreatstopublichealthandsafety;

(4) provide emergency assistance throughFederalagencies;

(5) remove debris in accordance with theterms and conditions of section 5173 of thistitle;

(6) provide assistance in accordance withsection 5174 of this title; and

(7) assist Stateand localgovernments inthe distributionof medicine,food, and otherconsumablesupplies, andemergencyassistance.

(b) General

Whenever theFederal assistance provided under subsection (a) of this section with respect to an emergency isinadequate, the President may also provide assistance with respect to efforts to save lives, protectproperty and public health and safety, and lessen or avert the threat of a catastrophe.

The Stafford Act includes specific provisions dealing with hazard mitigation, 42 U.S.C. Â§5170c; repair, reconstruction, restoration, or replacement of United States facilities, 42 U.S.C. Â§5171; repair, reconstruction, restoration, or replacement of damaged state, local, or private nonprofitfacilities, 42 U.S.C. Â§ 5172; debris removal, 42 U.S.C. Â§ 5173; federal assistance to individuals andhouseholds, 42 U.S.C. Â§ 5174; unemployment assistance, 42 U.S.C. Â§ 5177; emergency grants toassist low-income migrant and seasonal farmworkers, 42 U.S.C. Â§ 5177a; food coupons anddistribution, 42 U.S.C. Â§ 5179; food commodities, 42 U.S.C. Â§ 5180; relocation assistance, 42 U.S.C.Â§ 5181; legal services, 42 U.S.C. Â§ 5182; crisis counseling assistance and training, 42 U.S.C. Â§ 5183;community disaster loans, 42 U.S.C. Â§ 5184; (24) emergency communications, 42 U.S.C. Â§ 5185; emergency publictransportation, 42 U.S.C. Â§ 5186; fire management assistance, 42 U.S.C. Â§ 5187; and timber sharingcontracts, 42 U.S.C. Â§ 5188. Each of these statutory provisions specifies the circumstances to whichit applies.

The Stafford Act provides for appeals of assistance decisions within 60 days after the dateon which the applicant for assistance is notified of the award or denial of award of the assistance. A decision on an appeal is to be made within 90 days of the date the official designated to administersuch appeals received notice of the appeal. (25)