Overview of the Stafford Act

Announcer: Welcome to FEMA Law Talk – a Podcast series produced by the FEMA Office of Chief Counsel. 
The purpose of this podcast series is to increase FEMA’s ability to learn and innovate as an organization through 
promoting a better understanding of the legal authorities that support FEMA’s efforts to reduce loss of life and property 
and protect the nation from all hazards. Now, here is your host, Mark Brooks.

Host: Hello. Welcome back to FEMA’s Law Talk Podcast series. My name is Mark Brooks, and I am here with Brad Kieserman. 
During this podcast we are going to provide you with an introduction to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 
commonly referred to as the Stafford Act. After listening to this podcast, you should be able to recognize important provisions of the Stafford Act 
and understand FEMA’s primary legal authority for providing disaster assistance.  I always hear people refer to the Stafford Act,
but I am not really sure what the act says or how to find it. Maybe you can start by providing some general background information on the Stafford Act, Brad?

Brad: Of course, Mark. The Robert T. Stafford Disaster Relief and Emergency Assistance Act,1 usually just called the Stafford Act,
is a Federal statute that was signed into law in 1988. The Stafford Act is based on two guiding principles: first, Federal assistance 
supplements State and local relief and recovery efforts; and, two, except in very unique circumstances involving exclusive or preeminent 
Federal jurisdiction, Stafford Act assistance is triggered only by a Governor’s request for assistance and then a presidential declaration.

1 Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 93-288 (1974) (codified as amended at 42 U.S.C. §§ 5121-5207) [hereinafter Stafford Act].

Host: So, Stafford is there to supplement, not supplant, the State, and, the State usually has to ask for assistance before the President can provide it, right?

Brad: That’s right, Mark. Those principles, which form the core of the Stafford Act, flow from the ordinary constitutional scheme in our Federal system, 
which divides sovereignty between the Federal and State governments. The Tenth Amendment to the U.S. Constitution provides the Federal government may 
govern only through the powers enumerated in the Constitution—the Constitution reserves all other powers to the States or to the people.2 As a result, 
States have the "police powers" to protect the health, safety, and welfare of their citizens, and these police powers provide the States with the foremost 
and dominant authorities to respond to emergencies. In other words, the Federal government is in support, not in the lead, for most Stafford Act major disasters 
and emergencies.

2 U.S. CONST. amend. X.

Host: So, that’s why sections 401 and 501 of the Stafford Act provide that the Governor of an affected State can request that the President declare either a 
major disaster or an emergency only when "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."3

3 42 U.S.C. §§ 5170, 5191.

Brad: That’s exactly right, Mark.

Host: So, Governors have to ask the President for Stafford Act declarations in most cases. What kind of declarations are there?

Brad: Well, Mark, the Stafford Act authorizes the President to make three general types of declarations or commitments: major disaster declarations,4 
emergency declarations,5 and fire management assistance grants,6 each of which enables FEMA and other Federal agencies to provide assistance to State and 
local governments overwhelmed by certain incidents or events.

4 See 42 U.S.C. § 5170.
5 Id. at § 5191.
6 See id. at § 5187.

Host: What actually happens when the President makes one of those declarations?

Brad: Each of those declarations essentially "turns on" some combination of Federal assistance programs provided for in the Stafford Act and its implementing regulations. 
Turning on those programs can result in the distribution of a wide range of Federal aid to individuals and families, certain non-profit organizations, and public agencies. 
The Stafford Act and its implementing regulations in title 44 of the Code of Federal Regulations describes the universe of eligible applicants—these can be States, Tribal or 
local governments, owners of certain private non-profit facilities, individuals, or families, depending on the particular program.

Host: Once the President makes one of those declarations, are all the eligible entities affected by the incident entitled to all available Federal assistance?

Brad: The President specifies in each declaration the type of incident covered, the time period covered, the types of disaster assistance available, the units of local government 
(generally counties, parishes, and independent cities) included in the declaration, and the name of the Federal Coordinating Officer—that’s the FEMA official who coordinates Federal assistance 
and initiates action immediately to assure that Federal assistance is provided in accordance with the declaration, applicable laws, regulations, and the FEMA-State Agreement.7 
As the effects of the incident subside over time, the initial declaration may be amended to modify the types of assistance to be provided and add areas (generally counties) eligible 
for assistance. It’s important to remember the Stafford Act provides for discretionary assistance—it’s not an entitlement program like Social Security or Medicare. FEMA typically provides aid only to those 
persons or entities determined to need the assistance. For example, FEMA might not consider a family with adequate insurance and alternative housing options eligible to receive financial aid. Likewise, a 
county or city that suffers only modest damages to some facilities might not receive funds to rebuild infrastructure if the extent of those damages don’t meet the standards for assistance established 
by FEMA’s regulations and policies.

7 44 C.F.R. § 206.41(a).

Host: Brad, first you said that the President makes declarations and then you said that FEMA provides assistance. How do we get from the President "declaring" to FEMA "doing?"

Brad: That’s a great question, Mark. FEMA administers most, but not all, of the authority that the Stafford Act vests in the President. That’s because the President delegated most of his Stafford Act 
authority to the Secretary of Homeland Security in Executive Order 13,286,8 and the Secretary delegated all of her Stafford Act authority to the FEMA Administrator in Department of Homeland Security Delegation No. 9001.1. 
In addition to these delegated authorities, the Homeland Security Act, as amended by the Post-Katrina Emergency Management Reform Act of 2006 (or PKEMRA), authorizes the Administrator to provide Federal 
leadership before and after catastrophes, including "assisting the President in carrying out the functions" of the Stafford Act.9

8 Exec. Order No. 13,286, 68 Fed. Reg. 10,619 (Feb. 28, 2003).
9 Post Katrina Emergency Management Reform Act (PKEMRA), Pub. L. No. 109-295, § 503(c), 120 Stat. 1355, 1398 (2006).

Brad: That’s another great question, Mark—and the answer is not FEMA’s operating budget. Instead, Congress appropriates money to a special account called the Disaster Relief 
Fund (or DRF) for disaster assistance authorized by the Stafford Act. Unlike most appropriations, which are available for one fiscal year, funds appropriated to the DRF are 
what we call "no-year money," which means the funds remain available until expended—that’s important because the disaster recovery process sometimes takes years, so we need 
an account and funds that can be used across fiscal years to support recovery. It’s also important because the DRF pays for FEMA’s phone centers, finance centers, and housing 
inspectors so that these response and recovery elements are already in place when the President issues a declaration. In most cases, assistance provided through funds drawn from
the DRF cannot duplicate assistance provided by other means. Also, Congress appropriates disaster funds to other accounts administered by other Federal agencies pursuant to 
Federal statutes that authorize specific types of disaster relief.

Host: So, Brad, let’s drill down on the Stafford Act. Where do we find it and how is it organized?

Brad: Anyone can find and read the Stafford Act by going to FEMA’s public website or by looking at title 42 of the United States Code starting at section 5121. 
The Stafford Act contains seven titles with eighty-one separate provisions or sections. Title I contains Congressional findings, declarations, and definitions. Title II 
addresses issues of preparedness and mitigation. Title III contains a number of important administrative provisions. Titles IV and V contain the real "meat" of the 
Stafford Act—these titles identify the types of assistance that FEMA and other Federal agencies may provide, and, in some circumstances, the limitations on that aid. 
Title IV describes the aid available in major disasters and for fire management, and title V describes the aid available in an emergency. 
Title VI contains what used to be the Civil Defense Act of 1950 and provides severalimportant legal authorities for preparedness. Finally, Title VII contains several 
miscellaneous provisions, including broad gift acceptance authority and the authority to issue rules and regulations implementing the Stafford Act—that’s how we get to 
many of FEMA’s rules in the title 44 of the Code of Federal Regulations (or 44 C.F.R.). 

Host: OK, Brad, can you quickly walk us through some of the Federal disaster assistance programs authorized by the Stafford Act?

Brad: Sure, Mark! There are three primary disaster assistance programs. First, there’s Individual Assistance (or IA), which includes disaster housing for displaced individuals, 
financial assistance grants for needs not covered by insurance, crisis counseling, and disaster-related unemployment assistance. For example, individual assistance can include housing assistance 
such as lodging expenses reimbursement, rental assistance, and home repair or replacement grants. Individual assistance can also include "other needs assistance" (or ONA) 
for things like medical, dental, and funeral costs.

Host: What’s the second program?

Brad: Second, there’s Public Assistance (or PA), which helps communities absorb the costs of emergency measures such as removing debris and repairing or replacing structures 
such as public buildings, roads, bridges, and utilities. Public assistance is available to assist States, Tribal and local governments, and certain private non-profits. 
For administrative purposes FEMA’s Public Assistance Guide10 breaks PA into categories with letter designations, including debris removal (which we call Category A), 
emergency protective measures (which we call Category B), and permanent work (such as to repair roads and bridges, water control facilities, buildings and equipment, utilities, 
and parks and recreational facilities, all of which we call Categories C through G). By the way, PA is FEMA’s largest funded program.

10 See Public Assistance Guide, FEMA 322 (June 2007) (available at http://www.fema.gov/government/grant/pa/pag07_t.shtm).

Host: What’s the third program, Brad?

Brad: Third, there’s Hazard Mitigation, which is when FEMA funds mitigation measures to prevent or lessen the effects of a future disaster through the Hazard Mitigation Grant Program (or HMGP).11 
Elevating homes and buying out properties in the floodplain are two good examples of HMGP. Also, on a smaller scale, FEMA might provide funding to a homeowner to relocate their 
utilities to a higher level in their home where it is less likely to receive flooding.

11 See 42 U.S.C. § 5170c.

Host: Brad, I’ve heard about something called Direct Federal Assistance – is that a program?

Brad: Direct Federal Assistance is not its own program. Instead, it’s a method of delivering certain types of Public Assistance (or PA). When the State and local government 
lack the capability to perform or contract for eligible emergency work or debris removal—in other words, when they just can’t do the work themselves—they may request that 
FEMA assign a Federal agency to accomplish the work. You may have heard the term "mission assignment" associated with Direct Federal Assistance.

Host: I have Brad—what is a "mission assignment?"

Brad: A mission assignment is a work order issued by FEMA to another Federal agency directing completion of a specific task. This authority derives from the Stafford Act 
which gives the President the authority—that FEMA exercises on his behalf—to "direct any Federal agency, with or without reimbursement, to utilize its authorities and the 
resources granted to it under Federal law (including personnel, equipment, supplies, facilities, and managerial, technical, and advisory services) in support of State and 
local assistance response and recovery efforts, including precautionary evacuations.12 We will talk more about mission assignments in a future Law Talk podcast.

12 See 42 U.S.C. § 5170c.

Host: Brad, can you summarize the main differences between a major disaster and an emergency?

Brad: Well, the definitions of those terms, which are found in title II of the Stafford Act, are very important because they establish eligibility for Federal assistance and 
the conditions necessary for the President to act. The Stafford Act definition of "major disaster" is relatively restrictive. The Stafford Act defines a major disaster as 
"any natural catastrophe…or regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of 
sufficient severity and magnitude to warrant major disaster assistance…to supplement the efforts and available resources of States, local governments, and disaster relief 
organizations in alleviating the damage, loss, hardship, or suffering caused thereby."13 By comparison, the definition of "emergency" is broad, authorizing the President to 
declare an emergency for "any occasion or instance for which…Federal assistance is needed to supplement State and local efforts and capabilities to save lives to protect 
property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States."14 Keep in mind, section 420 of the Stafford Act 
also authorizes the President to provide fire management assistance to prevent a forest or grassland fire from becoming a major disaster.15

13 42 U.S.C. § 5122(2).
14 Id. at § 5122(1).

Host: I think that I understand the difference now. A major disaster is a natural catastrophe or any fire, flood, or explosion regardless of cause while an emergency is any 
instance where the President determines that there is a need to supplement State and local efforts to protect property and public health, or lessen or avert the threat of a 
catastrophe?

Brad: You got it, Mark. Just remember: for the President to declare a major disaster there must be a qualifying event that causes actual damage; in contrast, the President 
can declare an emergency before any damage occurs. We often do that in the context of hurricanes before they reach landfall to help States and localities cover the costs of 
preparedness and evacuation.

Host: So, now that I understand the difference in the definitions, you said earlier there was a difference in the amount and type of Federal disaster assistance that FEMA 
can provide depending on whether the President declares a major disaster or an emergency–can you summarize those differences for us?

Brad: For a major disaster, all of the assistance under the Stafford Act—to include all individual assistance, all categories of public assistance, and hazard mitigation—may be
available if the President authorizes it in his declaration. For an emergency declaration, Federal assistance is limited to immediate and short-term assistance, essential to 
save lives, to protect property and public health and safety, or to lessen or avert the threat of a catastrophe. Total assistance for a single emergency cannot exceed $5,000,000
unless the FEMA Administrator determines (1) continued emergency relief is immediately required; (2) there is a continuing and immediate risk to lives, property, public health, 
or safety; and (3) necessary assistance will not otherwise be provided on a timely basis.16 Whenever the $5,000,000 threshold is exceeded, the FEMA Administrator must also 
report to Congress on the nature and extent of emergency assistance requirements.17

16 See 42 U.S.C. § 5193(b).
17 Id.

Host: Brad, I thought the intent of the Stafford Act was to provide supplemental assistance to the State and local governments! Are there limits on what the Federal government 
can pay for?

Brad: Ahh! Mark, you’ve raised the issue of "cost share!" The Stafford Act stipulates that the minimum Federal assistance for certain eligible activities "shall be not less than
75% of the eligible cost of such assistance."18 Other provisions specify ceilings, rather than floors, for federal aid. Housing assistance, for example, is 100% federally funded
with no State or local cost share.19 All Federal assistance programs are limited either to a fixed dollar amount or to a percentage of eligible costs. So, before FEMA provides 
Federal assistance under Stafford Act authority, it finalizes a grant agreement with the State, called the "FEMA-State Agreement," setting forth the terms under which FEMA will 
obligate and distribute disaster assistance funding to the State for redistribution to eligible applicants (like local governments).20

18 Id. at § 5170b(b).
19 See 42 U.S.C. § 5174(g).
20 See 44 C.F.R. § 206.44.

Host: Interesting. The Federal share for disaster assistance is at least 75% of eligible costs and it comes from the "Disaster Relief Fund" or "DRF." 
Do the State and local governments have to pay for the remaining costs?

Brad: Yes, Rich. As part of the Governor’s request for a major disaster declaration, the Governor must certify that State and local government obligations and expenditures 
for the disaster will comply with all applicable cost-sharing requirements of the Stafford Act. The Governor’s request for a major disaster declaration must also include: 
(1) confirmation that the State emergency plan was executed; (2) an estimate of the amount and severity of damages and losses stating the impact of the disaster on the public 
and private sector; (3) information describing the nature and amount of State and local resources that have been or will be committed to alleviate the results of the disaster; 
and (4) preliminary estimates of the types and amount of supplementary Federal disaster assistance needed under the Stafford Act.21

21 See 44 C.F.R. § 206.36.

Host: What happens if a Governor does not make a request for a major disaster or emergency declaration? Can the President just declare a major disaster or 
emergency unilaterally?

Brad: Well, as I mentioned at the beginning of our podcast, the Stafford Act does provide for limited circumstances when the President can declare an emergency unilaterally 
without a Governor’s request. The President may declare an emergency when he determines that an "emergency exists for which the primary responsibility for response rests with 
the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or 
preeminent responsibility and authority."22 In making that determination, the President shall, if practicable, consult with the affected State’s Governor.23 This provision has 
been invoked three times: in April 1995 in response to the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma; in 2001 in response to the 9/11 attack on
the Pentagon; and for the Space Shuttle Columbia disaster in 2003 – all incidents in which there was an explosion involving a Federal building or property.

22 42 U.S.C. § 5191(b).
23 Id.

Host: Brad, you’ve also mentioned Fire Management Assistance Grants several times. What’s that all about?

Brad: Thanks for reminding me about those, Mark! Section 420 of the Stafford Act authorizes the President to provide fire management assistance in the form of grants, 
equipment, personnel, and supplies to supplement the resources of communities when fires on public property or on private forests or grasslands threaten destruction that might
warrant a major disaster declaration.24 FEMA calls these Fire Management Assistance Grants (or FMAGS). The President and the Secretary of Homeland Security have delegated all 
FMAG authority, including the FMAG declaration authority, to the FEMA Administrator, and he has delegated that authority to FEMA Regional Administrators. An FMAG requires that a
gubernatorial request be submitted while an uncontrolled fire is burning. To be approved, States must demonstrate that either of two cost thresholds established by FEMA through
regulations has been reached. The thresholds involve calculations of the cost of an individual fire or those associated with all of the fires (declared and non-declared) 
in a State each calendar year.

24 42 U.S.C. § 5187.

Host: Brad, it seems like there is so much to learn about the Stafford Act!

Brad: You’re right, Mark! We’re only scratching the surface in this podcast. There are other areas of the Stafford Act that we haven’t even mentioned yet, like preparedness and
mitigation. But, we’ll cover all of that in future podcasts.

Host: Brad, thank you so much for speaking with us today. That wraps up this installment of the FEMA Law Talk Podcast Series. Today, Brad provided a general overview of the 
Stafford Act. We hope that you enjoyed learning about the role of Federal disaster assistance, the differences between a major disaster and an emergency, and the various types 
of assistance available under the Stafford Act.

Announcer: This has been a production of FEMA’s Office of the Chief Counsel in conjunction with the Office of External Affairs. If you have any questions or would like more 
information, please contact the podcast series program manager at FEMA-OCC-Podcast@fema.gov. Thank you and have a great day