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INSIGHTi
Authorizing Stafford Act Public Assistance
November 19, 2020
This Insight reviews the factors and policy issues that inform the authorization of the Federal Emergency
Management Agency’s (FEMA’s) Public Assistance (PA) program, pursuant to presidential declarations
under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act, P.L. 93-288, as
amended). This Insight also discusses forthcoming rulemaking on the factors authorized by the Disaster
Recovery Reform Act of 2018 (DRRA, P.L. 115-254).
PA Authorization
FEMA’s PA program supports state, local, tribal, and territorial governments (hereinafter SLTTs), and
eligible nonprofits when authorized through a Stafford Act declaration.
The President generally authorizes PA following a request by a governor or tribal chief executive for an
emergency or major disaster declaration, when SLTT resources are insufficient to respond and recover
(see Figure 1). FEMA determines whether there are unmet needs that may warrant PA, and makes a
recommendation to the President, who may then issue a declaration authorizing PA for Emergency Work
(debris removal and/or emergency protective measures) and/or Permanent Work (reconstruction of
eligible public and nonprofit disaster-damaged facilities).
FEMA’s method to evaluate requests for PA have raised congressional concern. In 2012, the Government
Accountability Office (GAO) found that the thresholds FEMA uses to identify unmet needs had not kept
pace with inflation and per-capita income gains. The GAO suggested that FEMA increase the thresholds
or identify another metric (e.g., total taxable resources) to assess SLTT capacity to respond and recover.
The Department of Homeland Security (DHS) concurred, but the recommendation is unimplemented.
The passage of DRRA in 2018 required FEMA to review the PA factors. Forthcoming rulemaking appears
that it would implement the GAO’s recommendations.
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https://crsreports.congress.gov
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Figure 1. Stafford Act Declaration Request Process
Source: Developed by CRS based on 44 C.F.R. §§206.31-206.48.
Current Methods to Assess PA Authorization
For Stafford Act emergencies, FEMA qualitatively evaluates whether the incident’s “severity and
magnitude” exceeds the capacity of SLTTs to respond, thus warranting PA.
By contrast, for Stafford Act major disasters, FEMA uses six mostly quantifiable factors to assess PA
authorization. FEMA estimates the cost of PA across the affected jurisdiction using a Preliminary Damage
Assessment (PDA) conducted by federal and SLTT representatives (generally, this measures the
uninsured costs to reconstruct eligible disaster-damaged facilities). FEMA usually recommends PA when
these estimates exceed $1 million across a state or territory, or $250,000 across a tribe. Additionally,
FEMA generally recommends PA only when damages exceed “per-capita indicators”—for FY2020, these
thresholds are $1.53 across a state, tribe, or territory and $3.84 across affected localities (FEMA annually
updates these thresholds to reflect inflation). FEMA exercises discretion in its recommendations, and may
consider mitigating measures (which may have reduced damages), or a recent history of disasters that
exhausted SLTT capacity.
While no single factor determines whether FEMA recommends authorization, per-capita indicators have
historically proved crucial. In 2012, GAO found that FEMA used the indicators as “eligibility
thresholds”—99% of major disaster declarations reflected damage estimates where indicators were met or
exceeded. The exclusive use of per-capita indicators may violate the Stafford Act prohibition on the use of
sliding scales to deny federal assistance.
Forthcoming Rulemaking on PA Authorization
Some in Congress have expressed concern that the PA factors inaccurately measure unmet needs. The
passage of DRRA in 2018 required FEMA to review the factors in response.
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Section 1232 of DRRA required FEMA to give greater consideration to severe local impacts and recent
disasters when considering requests for PA. FEMA reported that it had implemented this provision by
soliciting relevant information in FEMA’s cover letter for declaration requests.
Section 1239 required FEMA to revise PA cost-estimating factors; FEMA initiated this rulemaking in
December 2019. FEMA proposed the following modifications:
1. an increase to the $1 million minimum damage threshold;
2. increased per capita indicators reflecting inflation and per-capita income gains;
3. adjusted indicators based on total taxable resources to better gauge SLTT capacity; and
4. the use of annual population estimates in lieu of decennial census data.
According to FEMA, the changes would better distribute the “responsibilities between the States and the
Federal Government, and will incentivize States to invest more in response, recovery, and mitigation
capabilities.” Additionally, FEMA expects the modifications to limit Stafford Act declarations to more
catastrophic incidents. FEMA announced that it anticipates publishing a Notice of Proposed Rulemaking
in 2020.
Policy Issues—PA Authorization Factors
Some in Congress and SLTT stakeholders have identified concerns relevant to the forthcoming
rulemaking, including:
Excessive Authorization of PA
As noted above, the GAO concluded in 2012 that the per-capita indicators had not kept pace with per-
capita income gains and inflation, possibly resulting in PA authorization when SLTTs may have the
capacity to respond and recover. Some scholars have noted that state disaster spending is highly variable,
and SLTT stakeholders have demonstrated that most incidents are managed without federal assistance.
FEMA’s proposed rulemaking appears to implement the GAO’s recommendation to increase per-capita
indicators by shifting the cost of smaller disasters to SLTTs.
Inequities in PA Authorization
PA authorization is based upon the estimated costs of PA-eligible work; commercial, personal, and federal
property are ineligible. Some in Congress and SLTT stakeholders have noted that the use of the indicators
(especially if increased) may disadvantage small, rural and/or less wealthy areas with less costly eligible
facilities. FEMA explained that it will consider severe local impacts in accordance with DRRA Section
1232.
Timing and Geography of Damages
PDAs only measure impacts incurred during a certain time period (the FEMA-defined “incident period”).
Some in Congress have raised concern that the impacts of a disaster may not always coincide with the
incident period. For example, initial damages incurred during a slow-onset event, such as sea level rise,
may not receive PA authorization if damages incurred during the initial incident period do not meet per-
capita indicators, irrespective of subsequent damages. Similarly, compound events (e.g., fires following
an earthquake) may not individually meet the damage indicators, jeopardizing PA authorization. FEMA’s
per-capita indicators also measure damages within political boundaries that may not correspond with the
geography of a hazard. The proposed rulemaking does not discuss these issues.
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Author Information
Erica A. Lee
Analyst in Emergency Management and Disaster
Recovery
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
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