42 U.S.C. § 5170: How Major Disaster Declarations Work

42 U.S.C. § 5170 Explained: Who Can Request a Major-Disaster Declaration and What Must Be in the Request

TL;DR: Only a state governor or a tribal chief executive can ask the President to declare a major disaster under 42 U.S.C. § 5170, and the request must show local resources are overwhelmed, emergency plans are activated, and cost-share rules will be met.

Under 42 U.S.C. § 5170, federal disaster aid does not start with Washington. It starts with a formal request from the affected state or tribal government. According to FEMA's page How a Disaster Gets Declared | FEMA.gov, every emergency and major-disaster declaration is made solely at the discretion of the President of the United States.

For preparedness-minded households, that procedure matters. No community qualifies for Stafford Act major-disaster assistance until the governor or tribal leader completes prescribed findings, actions, and certifications. The statute is Section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, codified at 42 U.S.C. §§ 5121-5207.

The Core Rule: Governor Makes the Request

What Subsection (a) Requires

Subsection (a) of the statute, as published by the U.S.C. Title 42 - THE PUBLIC HEALTH AND WELFARE, states that all requests for a presidential declaration that a major disaster exists shall be made by the governor of the affected state.

The governor's request must rest on a finding that the disaster involves severity and magnitude beyond the capabilities of the state and affected local governments, making federal assistance necessary.

As a prerequisite to assistance, the governor must take appropriate response action under state law and direct execution of the state's emergency plan.

The request package must describe the nature and amount of state and local resources already committed or to be committed toward alleviating disaster effects.

The governor must also certify that state and local obligations and expenditures for the current disaster will comply with applicable cost-sharing requirements, with state commitments constituting a significant proportion.

Based on such a governor's request, the President may declare that a major disaster or emergency exists under the chapter.

Why This Matters for Local Readiness

According to FEMA's How a Disaster Gets Declared | FEMA.gov, information developed during field assessment is included in the governor's or tribal chief executive's request to demonstrate that effective response exceeds state, local, or tribal capability and that supplemental federal help is necessary.

FEMA explains that once assessment work is complete and the state or tribal government concludes damage exceeds its resources, the governor or tribal chief executive may submit the declaration request to the President through the FEMA Regional Office.

That submission must confirm that appropriate action was taken under state or tribal law and that execution of the state or tribal emergency plan was directed.

FEMA further explains that the chief executive must furnish information concerning the nature and amount of government resources committed, furnish an estimate of the amount and severity of damage and effects on private and public sectors, and furnish an estimate of the type and amount of assistance needed under the Stafford Act.

The chief executive must additionally certify that obligations and expenditures for the current disaster will comply with cost-sharing requirements.

Tribal Governments Can Request Directly

Authority Added in 2013

Congress expanded direct-request authority through Public Law 113-2, Division B, Section 1110(a), enacted January 29, 2013, 127 Stat. 47. That amendment designated the original governor-request language as subsection (a) and added subsections (b) and (c), according to the U.S.C. Title 42 - THE PUBLIC HEALTH AND WELFARE.

Under subsection (b), the chief executive of an affected Indian tribal government may submit a request for a presidential major-disaster declaration consistent with the requirements of subsection (a).

FEMA's How a Disaster Gets Declared | FEMA.gov states that federally recognized tribal governments have the option to request a presidential disaster declaration independent of a state, following the Sandy Recovery Improvement Act.

FEMA reports that it developed Tribal Declarations Pilot Guidance with more detailed guidance for tribal requests.

How References and Savings Work

Subsection (b)(2) provides a rule of construction for implementation. When assistance is authorized in response to a tribal chief executive's request, references in the relevant subchapters to a state or governor are deemed to refer to the affected tribal government or its chief executive, except for sections 5153 and 5165d of the title.

Subsection (b)(3) contains a savings provision. Nothing in the tribal-request subsection prohibits a tribal government from receiving assistance through a state-requested presidential declaration when the President has not issued a separate tribal declaration for the same incident.

For practical planning, FEMA's How a Disaster Gets Declared | FEMA.gov directs tribal leaders to its Declaration Process for Tribes and notes that the declaration process is codified at 44 C.F.R. Part 206, Subpart B.

Cost-Share Waivers for Tribal Governments

Subsection (c) addresses non-federal contributions for tribal assistance. According to the U.S.C. Title 42 - THE PUBLIC HEALTH AND WELFARE, the President may waive or adjust payment of a non-federal contribution for tribal assistance when two conditions are satisfied.

First, the President must otherwise possess authority to waive or adjust that payment under another provision of the subchapter.

Second, the President must determine that the waiver or adjustment is necessary and appropriate.

The statute directs the President to establish criteria for determinations that a tribal cost-share waiver or adjustment is necessary and appropriate.

Who Counts as a State for Requests

The Stafford Act definition discussed on FEMA's How a Disaster Gets Declared | FEMA.gov extends beyond the 50 states for declaration purposes.

FEMA states that a state also includes the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

The same FEMA page states that the Republic of Marshall Islands and the Federated States of Micronesia are also eligible to request a declaration and receive assistance through the Compacts of Free Association.

Preliminary Damage Assessment: The Evidence Package

Requesting a Joint Assessment

FEMA's How a Disaster Gets Declared | FEMA.gov advises that when a presidential declaration may be necessary for recovery, the state or tribal government should contact its FEMA Regional Office and request a joint federal, state, or tribal Preliminary Damage Assessment, known as a PDA.

Local government representatives should be included when possible.

Together, the assessment team examines the extent of the disaster, its effects on individuals and public facilities, and the categories of federal help that may be needed.

FEMA provides additional PDA reports, guidance for conducting assessments, templates, and digital survey tools through the linked assessment resources.

Congressional Findings on PDAs

A statutory note to Section 5170, enacted as Public Law 117-263, Division E, Title LVI, Section 5603, on December 23, 2022, 136 Stat. 3405, contains congressional findings concerning assessments, as reproduced in the U.S.C. Title 42 - THE PUBLIC HEALTH AND WELFARE.

Congress found that preliminary damage assessments play a critical role in assessing and validating disaster impact and magnitude.

Congress found that Federal Emergency Management Agency representatives validate information gathered by state and local officials that serves as the basis for disaster assistance requests.

Congress found that various factors can affect assessment duration and the corresponding major-disaster request, with flooding disasters associated with an average interval approximately twenty days longer between occurrence and submission of the corresponding request.

Congress found that accurate and efficient assessments have become critically important because communities face increased catastrophic flooding and other extreme weather events.

The 2022 provision directed the Administrator of the Federal Emergency Management Agency to submit a report to Congress not later than 90 days after enactment describing the assessment process supported during the preceding five years.

That report was required to address deployment procedures, participating staff numbers, staff training and experience, average deployment duration in disaster areas, and liaison efforts with state, local, tribal, and territorial officials.

When a Request Can Precede the PDA

FEMA's How a Disaster Gets Declared | FEMA.gov states that the PDA is generally completed before submission of the governor's or tribal chief executive's major-disaster request.

When an obviously severe or catastrophic event occurs, however, the request may be submitted before completion of the PDA, citing 44 C.F.R. § 206.36.

In those early-request circumstances, FEMA states that the major disaster will generally be limited to Public Assistance Categories A and/or B, which may be further limited to Direct Federal Assistance, plus Hazard Mitigation Assistance.

For high-impact events where residential damage is empirically overwhelming, FEMA states that the declaration may also include Individual Assistance.

FEMA states that additional forms of assistance may be added later after completion of assessments.

Emergency Versus Major-Disaster Declarations

FEMA's How a Disaster Gets Declared | FEMA.gov explains that the Stafford Act provides two declaration types: emergency declarations and major-disaster declarations.

Both types authorize supplemental federal disaster assistance, while the related events and the scope and amount of assistance differ.

The President can declare an emergency for any occasion or instance when federal assistance is determined to be needed.

Emergency declarations supplement state, local, or tribal emergency services, including protection of lives, property, public health, and safety, or action to lessen or avert the threat of catastrophe in any part of the United States.

Total assistance provided for a single emergency may not exceed $5 million, and the President shall report to Congress if that amount is exceeded.

Legislative History Preppers Should File

The present Section 401 was added by Public Law 100-707, Title I, Section 106(a)(3), on November 23, 1988, 102 Stat. 4696, according to the U.S.C. Title 42 - THE PUBLIC HEALTH AND WELFARE.

A prior Section 401 of Public Law 93-288 was renumbered as Section 405 and is classified to Section 5171.

The underlying Act is Public Law 93-288, enacted May 22, 1974, 88 Stat. 143.

What This Means for Your Family Plan

Document damage, preserve receipts for committed resources, and track activation of local emergency measures, because the governor's request depends on resource commitments, damage estimates, and proof that state and local capability is exceeded.

Maintain copies of insurance, identification, housing, medical, and financial records, because assessment teams evaluate effects on individuals, residences, and public facilities before recommending categories of assistance.

Monitor announcements from the governor, tribal chief executive, and FEMA Regional Office, because only those chief executives can transmit the Section 5170 request and only the President can approve emergency or major-disaster assistance.