On January 8, 2016, the Federal Emergency Management Agency (FEMA) published a notice in the FEDERAL REGISTER initiating tribal consultation on the second iteration of the Draft Tribal Declarations Pilot Guidance for implementation of the amendments made to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) which empower tribes to directly petition the President for a declaration of an emergency or major disaster. Comments are due April 7, 2016.
• The FEDERAL REGISTER notice is here:
• The Draft Tribal Declaration Pilot Guidance is here:
Background. On January 29, 2013, the President signed as PL 113-2 amendments to the Stafford Act which empower tribes, just like states, to directly petition the President for a declaration of an emergency or major disaster. (See our General Memorandum 13-026 of March 13, 2013.) FEMA is consulting with tribes in order to establish a pilot program for managing these requests. Information learned from the pilot program and future consultations will be used to eventually develop implementing regulations.
Draft Pilot Guidance. FEMA provides detailed descriptions of the process to submit a request for a Presidential Declaration for either a major disaster or an emergency along with requirements for how to apply for assistance. The Draft Pilot Guidance also provides detailed instructions on the how a tribe may apply for a Hazard Mitigation Grant while requesting a Presidential Disaster Declaration. FEMA writes that it will consider assistance under the Stafford Act only if all other potential resources have been explored and there is still a significant unmet need that other federal or state agencies cannot address.
The first iteration of the Draft Pilot Guidance had a number of features on which it received comments. One of the most significant issues in the first iteration was how it defined the community to be served by a tribe’s declaration. The definition of “Tribal Land” failed to incorporate the meaning of “Indian country” by excluding lands within a reservation not owned by the Tribal government or individual Indians. FEMA also was urged to clarify the eligibility to serve enrolled tribal members who live outside of a reservation. Unfortunately, this second iteration of the Draft Pilot Guidance continues to limit the term of “Tribal Lands” to apply to lands held in trust for tribal governments and individual Indians within reservations, as well as to lands owned by tribal governments.
A another significant aspect of the first iteration of the Draft Pilot Guidance was its failure to clearly describe the Tribal cost share, and failure to describe the Stafford Act amendments as authorizing the President, in instances when it is “necessary and appropriate” to adjust or waive the non-federal share for public assistance for tribes. Subsection 401(c) of the Stafford Act provides:
(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).
There remains some confusion about what flexibility this subsection provides for the federal government to consider requests from tribal governments for waivers or adjustments. The amendments to Stafford Act simply authorized tribal governments, if they so choose, to request major disaster and emergency Presidential Declarations in the same manner as a state and to be treated like a state. We understand that within this context, this subsection on cost share adjustments is being interpreted to mean that: when a tribal government submits a request for the President to waive or adjust a cost share, the President does not have any expanded authority to do so for that tribal government, rather, the President is bound by the same authority he is given elsewhere in the statute to waive or adjust a state cost share for a state government that requests it. However, to make such an adjustment for a tribal government the President must also make the determination whether the waiver or adjustment is “necessary and appropriate” and the statute instructs FEMA to establish criteria for determining what constitutes “necessary and appropriate.” Tribes will want to submit comments on the development of these criteria.
This draft Tribal Declarations Pilot Guidance is an important step towards implementing the legislation that amended the Stafford Act. Tribal input to improve the Pilot Guidance will be important when FEMA is developing final regulations. Please let us know if we may provide additional information regarding FEMA’s plans for the interim implementation of the Stafford Act or assistance in preparing comments.