Disaster Declarations Welcome Welcome to Disaster Declarations. - PDF document

Disaster Declarations Welcome Welcome to “Disaster Declarations.” This learning module is the third in a series of modules developed by the Tribal Legal Preparedness Project to assist Tribal Nations interested in expanding their legal preparedness capacity. Please use the next button at the bottom of the screen to navigate through this module. 1

Disclaimer The contents of this module have not been formally disseminated by the Centers for Disease Control and Prevention, ChangeLab Solutions, and the Center for Public Health Practice. The contents should not be construed to represent any agency/organization determination or policy. These module materials are for instructional use only and are not intended as a substitute for professional legal or other advice. While every effort has been made to verify the accuracy of these materials, legal authorities and requirements may vary from jurisdiction to jurisdiction and change over time. Always seek the advice of an attorney or other qualified professional with any questions you may have regarding a legal matter. 2

Navigating Through This Module This module is designed to be interactive. If a slide is interactive or includes an activity, instructions will be provided. When you see the book icon, click on it for more information. When you see the “i“ icon, click on it for slide instructions. 3

Learning Objectives At the end of this module, you will be able to:  Recognize the authority for Tribal declarations;  Define the federal framework for emergency declarations; and,  Describe the process for exercising the new authority for Tribal Nations to directly request a Presidential emergency or major disaster declaration, including the 2017 Federal Emergency Management Agency Tribal Declarations Pilot Guidance. 4

Declarations There are three types of federal emergency declarations that will be discussed in this module:  Public Health Emergency declarations;  Stafford Act declarations; and,  National Emergencies Act declarations. Additionally, there are three types of authorities that provide Tribal Nations with the opportunity to declare an emergency. These authorities can come from:  A Tribal constitution;  A Tribal code; or,  Inherent authority. The mechanisms for federal emergency declarations will be discussed later in this module. First, let’s discuss the authority for Tribal declarations. 5

Tribal Protection of Public Health Authority for Tribal declarations can come from the Tribe’s constitution, the Tribe’s code, or inherent authority. Click on each type of authority to learn more. 6

Tribal Protection of Public Health: Constitution A Tribe’s constitution may provide a Tribal government with the power to declare a disaster. An example is the Standing Rock Sioux Tribe, where the Chairman declared a state of emergency on May 27, 2013, due to excessive rainfall, which caused flash flooding and threatened roads, homes, and the Tribe’s irrigation system. The declaration stated that, pursuant to Article IV, Section 1(c)(j)(o) of the Tribe’s constitution, the Tr ibe has the authority “to safeguard and protect general welfare, property, cultural, and natural resources of the Standing Rock Sioux Tribe.” 7

Tribal Protection of Public Health: Code Some Tribal Nations codify authority to declare states of emergency and develop procedures for declaring an emergency. An example is the Navajo Nation Code, which establishes a Commission of Emergency Management, which is authorized, “[w]ith the concurrence of the President of the Navajo Nation, to declare states of emergen cy affecting the Navajo Nation or any section thereof.” 8

Tribal Protection of Public Health: Inherent Authority Tribal Nations have inherent authority to protect the public health and welfare of their citizens, including issuing declarations. This authority is derived from several sources. Some Tribes rely on governing councils’ inherent authority to declare states of emergency. An example is when the Council of the Havasupai Tribe declared an emergency by resolution due to the failure of a dam and high water in nearby creeks. 9

Emergency Declarations: Federal Framework Here is the framework for federal declarations related to disasters and emergencies. Public Health Emergency Declarations are issued by the HHS Secretary if the HHS Secretary determines that a public health emergency exists. The Stafford Act authorizes the President to make certain programs of assistance available to respond to and recover from an incident that exceeds all available resources and overwhelms the Tribal, territorial, or state and local governments. The National Emergencies Act authorizes the President to declare a “national emergency”, which triggers emergency authorities contained in other federal statutes. Click on each type of declaration learn more. 10

Emergency Declarations: Federal Framework- Public Health Emergency Declaration Public Health Emergency declarations are issued by the HHS Secretary if he/she determines that a public health emergency exists. Section 319 of the Public Health Service Act authorizes the HHS Secretary to determine that a public health emergency exists if:  A disease or disorder presents a public health emergency, or  A public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise occurs. A public health emergency declaration is in effect until the HHS Secretary either declares that the emergency no longer exists, or after 90 days, whichever occurs first. If the HHS Secretary finds that the public health emergency declaration should remain in effect based on the continued existence of the original public health threat or the emergence of new circumstances, the HHS Secretary may renew the declaration for additional 90-day periods. The HHS Secretary may take such action as may be appropriate and may use funds from the Public Health Emergency Fund to respond to the public health emergency. 11

Emergency Declarations: Federal Framework- Stafford Act Declaration The Robert T. Stafford Disaster and Emergency Assistance Act, commonly referred to as the Stafford Act, is the broadest and most well- known of the federal government’s emergency programs. Before the Federal Emergency Management Agency or FEMA can provide any significant direct funding, a presidential declaration must occur. A governor or Tribal leader must first request the federal government for a declaration unless the emergency involves an area of primary federal responsibility, where principal responsibility for response rests with the federal government because the emergency involves a subject or area for which the United States exercises exclusive responsibility and authority (e.g., federal buildings). However, FEMA may position resources without a declaration in anticipation of a declaration. FEMA will make a recommendation to the President based on the severity of the catastrophe or emergency. However, the President alone makes the decision whether or not to issue a Stafford Act declaration. A Stafford Act declaration triggers access to federal assistance, including response and recovery funding. Under the Stafford Act, the U.S. President can declare a “major disaster” or “emergency” in response to an event or threat that overwhelms state, Tribal, local, or territorial governments. While both declaration types authorize the President to provide federal disaster assistance, the events related to each type of declaration as well as the scope and amount of assistance available differ. 12

Emergency Declarations: Federal Framework- National Emergencies Act Declaration One type of federal declaration comes from the National Emergencies Act, or NEA. The NEA does not provide any specific emergency authority itself; instead, it relies on emergency authority provided in other statutes. An NEA declaration triggers these other statutory authorities. However, these emergency authorities are not activated automatically, but rather must be specifically identified in the President’s declaration. A national emergency can be terminated if the President issues a proclamation or if congress enacts a joint resolution terminating the emergency. A national emergency will automatically terminate on the anniversary of the declaration unless renewed by the President. During the 2009 H1N1 pandemic, President Obama signed a declaration under the NEA, which, together with the HHS Secretary’s prior determination of the existence of a public health emergency, allowed health care facilities to waive certain regulatory requirements while responding to the pandemic. 13

Emergency Declarations: Federal Framework- Major Disaster Declaration The President may issue a major disaster declaration for any natural event, including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, or drought, or regardless of the cause, any fire, flood, or explosion, that the President believes has caused such severe damage that is beyond the capabilities of the state and local governments to respond. A major disaster declaration provides a wide range of federal assistance programs for individuals and public infrastructure, including funds for both emergency and permanent work. 14