The Robert T. Stafford Disaster Relief and Emergency Assistance Act (referred to as the Stafford Act—42 U.S.C. 5721 et seq.) authorizes the President to issue “major disaster” or “emergency” declarations before or after catastrophes occur. Emergency declarations trigger aid that protects property, public health, and safety and lessens or averts the threat of an incident becoming a catastrophic event. Given their purpose, the emergency declarations may precede an event. A major disaster declaration is generally issued after catastrophes occur, and constitutes broader authority for federal agencies to provide supplemental assistance to help state and local governments, families and individuals, and certain nonprofit organizations recover from the incident.
The end result of a presidential disaster declaration is well known, if not entirely understood. Various forms of assistance are provided, including aid to families and individuals for uninsured needs; and assistance to state and local governments, and to certain non-profits for rebuilding or replacing damaged infrastructure.
Over the last quarter century, the amount of federal assistance provided through presidential disaster declarations has exceeded $150 billion. Often, in recent years, Congress has enacted supplemental appropriations legislation to cover unanticipated costs. While the amounts spent by the federal government on different programs may be reported, and the progress of the recovery can be observed, much less is known about the process that initiates all of this activity. Yet, it is a process that has resulted in an average of more than one disaster declaration a week over the last decade.
The disaster declaration procedure is foremost a process that preserves the discretion of the governor or tribal leader to request assistance and the President to decide to grant, or not to grant, supplemental help. The process employs some measurable criteria for evaluating disaster damage in two broad areas: Individual Assistance that aids families and individuals and Public Assistance that is mainly for emergency work such as debris removal and permanent repairs to infrastructure. The criteria, however, also consider many other factors, in each category of assistance, that help decision makers assess the impact of an event on communities and states.
Under current law while a governor or a tribal leader may make a request, the decision to issue a declaration rests solely with the President. Congress has no formal role, but has taken actions to adjust the terms of the process. For example, the Post-Katrina Emergency Management Reform Act of 2006, P.L. 109-295, established an advocate to help small states with the declaration process. More recently, Congress passed the Hurricane Sandy Recovery Improvement Act, P.L. 113-2, which had two potentially major impacts on the declaration process. First, the act authorized Native American tribal groups to directly request disaster assistance from the President rather than only requesting through a state governor. The second potential major impact in the act was that FEMA was directed to update its criteria for considering whether to make a recommendation to the President for Individual Assistance declarations.
Since the decision for a declaration is at the discretion of the President, there has been some speculation regarding the influence of political favor in these decisions. Some have posited various connections between the political party of the governor requesting or the prominence of some state’s congressional delegation on committee’s important to FEMA. While of interest, those theories are usually not connected to, or at least fail to consider, the natural events that were the impetus for both the request and the decision.
Given the importance of the decision, and the size of the overall spending involved, hearings have been held to review the declaration process so as to ensure fairness and equity in the process and its results. Congress continues to examine the process and several pieces of legislation have been introduced during the 113th Congress to adjust the factors considered for a major disaster declaration. This report discusses the evolution of this process, how it is administered and recent changes enacted in law as well as amending legislation that has been introduced. This report will be updated as warranted by events.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (referred to as the Stafford Act—42 U.S.C. 5721 et seq.) authorizes the President to issue "major disaster" or "emergency" declarations before or after catastrophes occur. Emergency declarations trigger aid that protects property, public health, and safety and lessens or averts the threat of an incident becoming a catastrophic event. Given their purpose, the emergency declarations may precede an event. A major disaster declaration is generally issued after catastrophes occur, and constitutes broader authority for federal agencies to provide supplemental assistance to help state and local governments, families and individuals, and certain nonprofit organizations recover from the incident.
Since the decision for a declaration is at the discretion of the President, there has been some speculation regarding the influence of political favor in these decisions. Some have posited various connections between the political party of the governor requesting or the prominence of some state's congressional delegation on committee's important to FEMA. While of interest, those theories are usually not connected to, or at least fail to consider, the natural events that were the impetus for both the request and the decision.
While disaster assistance may be good "political currency," a disaster declaration is generally the result of a tragic and devastating incident that disrupts (and sometimes takes) the lives of hundreds or thousands of families and individuals and the communities and states or tribal lands where they reside. The long-term economic and environmental impact of a disaster can be severe. The assistance offered from federal and private sources may or may not be commensurate with the damage inflicted by a natural or man-made event. Following a disaster, years of rebuilding and recovery work may lie ahead for communities, tribes, and states. It is the declaration process that sets the federal recovery help in motion.
(a) In general. Procedures for Declaration. All requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected state. Such a request shall be based on a finding that 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 the federal assistance is necessary. As a part of such request, and as a prerequisite to major disaster assistance under this Act, the Governor shall take appropriate response action under state law and direct execution of the state's emergency plan. The Governor shall furnish information on the nature and amount of State and local resources which have been or will be committed to alleviating the results of the disaster and shall certify that, for the current disaster, state and local government obligations and expenditures (of which state commitments must be a significant proportion) will comply with all applicable cost-sharing requirements of this Act. Based on the request of a Governor under this section, the President may declare under this Act that a major disaster or emergency exists.
(1) In general. The Chief Executive of an affected Indian tribal government may submit a request for a declaration by the President that a major disaster exists consistent with the requirements of subsection (a).
(2) References. In implementing assistance authorized by the President under this chapter in response to a request of the Chief Executive of an affected Indian tribal government for a major disaster declaration, any reference in this subchapter or subchapter III (except sections 5153 and 5165d of this title) to a State or the Governor of a State is deemed to refer to an affected Indian tribal government or the Chief Executive of an affected Indian tribal government, as appropriate.
(3) Savings provision. Nothing in this subsection shall prohibit an Indian tribal government from receiving assistance under this subchapter through a declaration made by the President at the request of a State under subsection (a) if the President does not make a declaration under this subsection for the same incident.
(B) the President determines that the waiver or adjustment is necessary and appropriate.
Sec. 5191. Procedure for declaration.
(a) Request and declaration. All requests for a declaration by the President that an emergency exists shall be made by the Governor of the affected State. Such a request shall be based on a finding that the situation 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. As a part of such request, and as a prerequisite to emergency assistance under this chapter, the Governor shall take appropriate action under State law and direct execution of the State's emergency plan. The Governor shall furnish information describing the State and local efforts and resources which have been or will be used to alleviate the emergency, and will define the type and extent of Federal aid required. Based upon such Governor's request, the President may declare that an emergency exists.
(b) Certain emergencies involving Federal primary responsibility. The President may exercise any authority vested in him by section 5192 of this title or section 5193 of this title with respect to 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. In determining whether or not such an emergency exists, the President shall consult the Governor of any affected State, if practicable. The President's determination may be made without regard to subsection (a) of this section.
(1) In general. The Chief Executive of an affected Indian tribal government may submit a request for a declaration by the President that an emergency exists consistent with the requirements of subsection (a).
(2) References. In implementing assistance authorized by the President under this subchapter in response to a request of the Chief Executive of an affected Indian tribal government for an emergency declaration, any reference in this subchapter or subchapter III (except sections 5153 and 5165d of this title) to a State or the Governor of a State is deemed to refer to an affected Indian tribal government or the Chief Executive of an affected Indian tribal government, as appropriate.
The declaration process is elaborated upon in regulations, specifically in Subpart B of 44 C.F.R. 206. While these regulations have been adjusted through the regulatory process during the past three decades, since 1974 the procedures have undergone little significant change until the inclusion of tribal groups in P.L. 113-2. The process itself is representative of the historical progression of federal disaster relief from being of an episodic nature to the current commonplace disaster declaration, now occurring on a weekly basis. The context in which disaster relief has grown has been in keeping with the growth of government and its concerns.
Policy makers have found it difficult to achieve equity in the treatment of disparate natural disaster events. The events can vary widely in their type, scope, duration, and impact. Perhaps the greatest variables are the states and tribal groups they affect. Each state or tribe has a different topography, a different history, and different capacities to respond and recover based on their own authorities, resources, and choices in what they will do following a disaster. Given those variations, including social and economic differences as well, it is a daunting task to construct a uniform process that can account for the range of natural and governmental circumstances that are a part of the nation's potential disaster landscape.
In the 113th Congress, following Hurricane Sandy, Congress passed the Sandy Recovery Improvement Act of 2013 (SRIA), P.L. 113-2. The act made one significant change to the Stafford Act declaration process.13 That significant change was one that Native Americans had long sought: the ability to directly request assistance from the federal government during times of disaster, rather than having to submit any requests through the governors of the affected tribal areas.
Previously, the Stafford Act included the description of "an Indian tribe or authorized tribal organization, or Alaska Native village or organization" in the definition of local governments.18 With this amendment, tribes are now equivalent to states in their ability to request a major disaster declaration or an emergency declaration from the President.
Tribes had sought this authority for various reasons. While tribes and Native Americans have long received assistance under Stafford Act declarations, working through the state government for all assistance has been viewed as an issue of tribal sovereignty. States might at times be reluctant to make a request on behalf of a tribe when the damage was localized on tribal property. Other challenges to administering disaster relief involved language barriers and the physical isolation of some tribal lands. Also, the tribes wished to have the same ability as states to help manage the response and recovery from a disaster. All of these factors created challenges for emergency management following disaster events in tribal areas.
Under the SRIA amendment (Sec. 1110) to the Stafford Act, the "Chief Executive of an Indian Tribal Government" is able to submit a request for a declaration by the President. In addition, the "Savings provision" of this section ensures that a tribal government is not prohibited from receiving assistance under a declaration made by the President at the request of the governor, if the President has not made a separate declaration for the tribal government. In effect, a tribal government will retain the ability to be treated as a local government in those situations.
In implementing this new provision, FEMA sent out guidance, along with a "Frequently Asked Questions" document and related information to assist tribes in participating in this process. FEMA also provided tribes with the FEMA template that is used by governors to generate and submit their requests for either a major disaster or an emergency declaration.19 In addition, FEMA reports that both headquarters and regional staff are involved in extensive outreach efforts across the nation to meet with tribes and discuss processes and other considerations as these new partnerships are established.
The broader question of how the federal disaster declaration process should work has come to the attention of Congress from time to time. Congress has requested reports from its investigative arms and investigated the process through panels that have, at various times, considered aspects of the disaster relief process.21 Various Administrations have also considered the process and FEMA's role in it.
Congress has taken a significant step to address disaster funding and establish a reliable budgetary process for it through the Budget Control Act (BCA). The BCA has put annual appropriations for the DRF at a higher level and also established a process that would permit allowable budget adjustments for disaster spending. But the Sandy experience also demonstrated that Congress was still willing to place some spending for catastrophic events outside of the budget process.27 But regardless of the DRF's budget at any given time, an interest remains in how the declaration process works: its pace, its thoroughness, and its fairness.
The study parameters mandated by Congress were broader than the declaration process, placing its emphasis on ongoing FEMA spending, including the refinement and revision of early estimates as well as the general management of spending projections for the Disaster Relief Fund (DRF). But the report language recognized the importance of the initial estimates in decision-making, and that the declaration process represents the fundamental decision to both establish federal participation following a disaster, and provide the initial estimated amount of resources needed that informs that decision.
During the 111th Congress, a hearing before the House Homeland Security Committee focused on FEMA's regional offices and also elicited comments regarding the relative speed, and perceived lack of transparency, of the declaration process. The comments came from both a committee member and a state official closely involved in the process.
FEMA spends too much time responding to routine natural disasters and not enough time preparing for catastrophic natural disasters, such as hurricanes, earthquakes, and volcanic eruptions, which could have a national impact. This is increasing the likelihood that the federal response to the next catastrophic event will be insufficient.
One difficulty in addressing such a recommendation is defining "routine natural disasters." The nature of the disaster can depend on the location. From afar, the incident may seem marginal but up close it may appear catastrophic. The notion of "routine natural disasters" is also dependent on state and local resources and capacities. While the devolution of responsibility to state governments may prove effective in some states, it also may not be consistent. As one expert noted, some consistency in approach from the federal government is desirable.
The following section discusses similar proposals as the one mentioned above regarding FEMA disaster cost-shares, including one made by FEMA, and the reaction of Congress to that approach.
There have been several proposals to impose more stringent regulations on the declaration process in an attempt to more precisely assess disaster impacts, calculate eligible damage, and incorporate some measure of suffering and loss. Differing perceptions of the declaration process resulted in different reactions to these proposed reforms.
The history of the disaster declaration process is rife with reform efforts that were perceived by some not as reform but as punitive measures directed at certain constituencies. Some of those differing perceptions were held by those closest to the event at the local level that had experienced a disaster. A different perception was also often held by governors who wanted to protect their option to request federal help. These perceptions were also shared, in some instances, by Members of Congress representing affected areas. All elected officials argued, in various forms, that reform should not impede the delivery of needed federal aid.
While enactment of this legislation halted FEMA's efforts, the issue did not disappear. As discussed below, FEMA has since adopted regulations that use, but not "solely," arithmetic formulae in determining need for assistance.
The declaration process contains many factors for consideration and, for all but the most catastrophic events, the process moves at a deliberate speed accumulating information from several sources. While the process is informed by that information and its relationship to potential assistance programs, the information that is gathered at the state and local level does not preclude the exercise of judgment by the tribal leader, governor, or the President.
The Stafford Act stipulates several procedural actions a governor or tribal leader must take prior to requesting federal disaster assistance (including the execution within the state of the state emergency plan and its tribal equivalent, and an agreement to accept cost-share provisions and related information-sharing). Still, the process leaves broad discretion with the tribal leader or the governor if he or she determines that a situation is "beyond the capabilities of the state." The concession that a state or tribe can no longer respond on its own is difficult to quantify. It is the governor or tribal leader who makes that assessment, based on his or her knowledge of state or tribal resources and capabilities.
Congress also has among its number former governors who have exercised this discretion at the state level. Still, despite the interest some may have in keeping "the process imprecise," some Members of Congress express disappointment at times with the exercise of the discretion and the general nature of the considerations. As noted previously in this report, that disappointment has been reflected in hearings that have focused on how the disaster declaration process works in practice.
In the declaration process, FEMA develops a recommendation that is sent to the White House for action. However, as implied, it is a recommendation from FEMA and the Department of Homeland Security (DHS). The final action, as stated in law47 and defined in the regulations of the process, is a "Presidential determination."48 Just as the governor or tribal leader retains the discretion to request federal assistance regardless of thresholds or indicators, the President retains the discretion to make a decision that may be counter to recommendations he receives.
Several points are interesting in the assumptions made referenced above. This assessment of how declarations are made does not include the various factors that are considered for either Public Assistance or Individual Assistance. These factors have been in regulation since 1999 and are discussed in more detail later in this report. Those factors, at base, consider the size and relative capacity of a state and local area. Rather than reviewing regulatory frameworks for disaster recommendations, the default assumption appears to be the primacy of politics.
Similar suggestions of political influence have been suggested by others. Two researchers asserted that presidential and congressional influence have an impact on the decisions for declarations and spending.
An additional reason for the increase in approvals may also rest with the increasing capacity of states to make effective requests; states continue to better understand FEMA's review process, based on regulations in place, and can anticipate what would likely constitute a request that would result in a declaration. This is in part a testament to the growing maturity and sophistication of the emergency management area as a field of study and profession. It may also be a reflection of the ongoing relationship between state and tribal emergency management offices and FEMA regional offices that may provide states and tribes with a better understanding of what may or may not constitute a successful request.
Although not explicitly mentioned in the Stafford Act, Preliminary Damage Assessments (PDAs) are a crucial part of the process of determining if an event may be declared a major disaster by the President. The minimal discussion of PDAs in the public record stands in inverse proportion to their impact on disaster decisions and subsequent expenditures from the Disaster Relief Fund (DRF).
While media and political pressure may have some influence on the outcome of some requests, governors may exercise caution since they are reluctant to be turned down when requesting aid. Though it may be possible, from a denial of assistance, to project on to the federal government a callousness or lack of understanding of the situation there are still negative connotations for governors as well. A denial of the request could also be perceived by some to reflect adversely on a governor's decision-making skills and judgment under pressure. Unlike the procedures of the federal process, a governor's decision to request a declaration can be a public and often newsworthy action.
PDA teams often face challenges in the collection of data. Some information may be observable in a survey of the area, such as the number of bridges damaged or the number of culverts washed out. But other necessary information, such as the percentage of elderly residents in an area, or the amount of insurance coverage for all homeowners or renters, may be more difficult to obtain quickly. Also, the geographic span of the damage can create complications as the PDA team struggles to cover all of the affected area in a limited time. Further complications may then ensue based on how much of the area that the PDA teams have visited (generally counties but other subdivisions may be used) are included in the governor's or tribal leader's request.
Although PDAs are the usual way damages are assessed, there are exceptions to this rule. Some incidents are so massive in their scale and impact that the actual declaration is not in doubt. This would include events such as Hurricanes Katrina and Sandy, the Loma Prieta and Northridge earthquakes, the Mount St. Helens volcanic eruption, and the September 11 terrorist attacks. In these instances, the decision is not whether a declaration will be made, but how broad the coverage will be, both geographic and programmatic. In such cases the President, in accordance with the regulations, can waive the PDA requirement. But as the regulations note, a PDA may still be needed "to determine unmet needs for managerial response purposes."61 This means the PDA helps to identify a specific, potential need for certain programs, such as crisis counseling or disaster unemployment assistance during the disaster recovery period. It is this identification of discrete need that helps the governor decide on which assistance programs will be requested.
It is difficult to overstate the importance of the media context as noted above. Depending on the news of the day, the disaster event in question may be the biggest national story and thus create momentum for action that is difficult to assuage with explanations of traditional administrative procedures. But regardless of the perceptions of political motivation, or intense media scrutiny, there are actual factors listed in regulations for assessing whether a state should receive a major disaster declaration.
Programs of other federal assistance.
Depending on the state's population, the per capita threshold may be difficult to reach. For example, the 2010 Census estimated California's population at just under 38 million people.65 Applying the $1.39 per capita figure, it would require eligible PA damage in California to be close to $48 million before federal supplemental assistance would be available through a declaration. California is a large state with a budget and tax base commensurate with its size. Expecting a large state to be able to respond on its own is equating such help, and such amounts, to be within "the capabilities of the state"66 That is the prime Stafford Act definition of when federal help is necessary.
Compare that level of eligible damage for California ($48 million) with Nevada, a small population state according to FEMA regulations.67 For Nevada, with a population of about 2.7 million people according to the 2010 Census, eligible PA damage of about $3.5 million would make the state potentially eligible for supplemental federal assistance.
There are obvious differences in the populations of these two states; however, both have substantial industries and are growing areas. They are states that border one another and both are subject to the threat of earthquake damage.68 Different measurements have been suggested to try to capture a state's capacity to respond to disaster events more accurately. Some of these measurements are discussed in the "Congressional Considerations for the Declaration Process" section of this report.
The next factor used by FEMA to consider a declaration that may include PA help focuses on localized impacts. FEMA generally looks for a minimum of $3.50 per capita in infrastructure damage in a county before designating it for PA funding.69 While such a per capita amount would likely ensure that the local entity (almost always a county) would be included in the list of jurisdictions designated for PA assistance should a declaration be issued, high local levels of damage per capita would not supersede a finding that damages state-wide fell below the state-wide threshold amount. However, knowledge of a very large localized impact could weigh on the President's discretion and raise the importance of the localized impact factor.
This issue has been addressed by recent legislation introduced in the House and Senate in the 113th Congress. These bills seek to make localized impact "more equal" than other factors similar to the position now occupied by state per capita "Estimated Cost of Assistance." The legislation suggests assigning a percentage weight to each factor considered. While six other factors in the proposed legislation receive 10% consideration, the "Localized Impact" factor is worth 40% when determining whether a disaster declaration for Public Assistance is warranted.70 This would be particularly helpful to local communities in large states where it is difficult to meet the "estimated cost" threshold. By shifting the greater consideration to localized damage amounts, those areas could potentially bolster a state or tribal request.
Average amount of Individual Assistance by state.
Concentration of damages looks at the density of the damage in individual communities. FEMA's regulations state that highly concentrated damages "generally indicate a greater need for federal assistance than widespread and scattered damages throughout a state."84 Concentrated damages are far more visible and may be an indication of significant damage to infrastructure supporting neighborhoods and communities, thereby increasing the needs of individuals and families.
However, the dispersion of damage is not necessarily an indication that individual and family needs are non-existent. Damage in rural states, almost by definition, is far less concentrated and could arguably be more difficult for a PDA team to view and assess. Congress has sought to address this challenge through the creation of the Rural and Small State advocate position at FEMA.85 Another consideration is that given the legislation that has attempted to give more weight to "Localized Impacts" under Public Assistance, this factor may take on increased importance.
Despite their prominence and importance to victims, families and communities, the loss of life and injuries have relatively little bearing on a declaration decision, but they would greatly influence media coverage that can influence the decision-making process.
The other areas (disruption of functions and loss of utilities) in the trauma rubric can be a point of dispute in declaration decisions. What constitutes a disruption of normal community functions? Do road closures that result in the closing of schools equate to a disruption? Another consideration is how long the disruption remains and how, or even if, federal help can alleviate the disruption. Similarly, the emergency needs due to the loss of utilities are defined by the length of time the power or water are not in service. Because characteristics of these factors are not defined in regulations, discretionary judgments are significant aspects of the evaluation of IA needs.
Special populations are considered by FEMA in assessing a request for Individual Assistance. FEMA attempts to ascertain information about the demographics of an area affected by a disaster event. Those demographics include the age and income of residents, the amount of home ownership in an area, the effect on Native American tribal groups, and other related considerations to be taken into account. The knowledge of the demographics within the affected area gives FEMA added information to consider regarding trauma and community disruption. Special populations are a factor in the consideration of a governor or tribal leader's request, but the total number of households affected that would be eligible for Stafford Act programs remains the prime consideration.
Voluntary agency assistance involves an evaluation of what the volunteer and charitable groups and state, tribal, and local governments have already done to assist disaster victims as well as the potential help they can offer in the recovery period. FEMA also considers whether state, tribal, or local programs "can meet the needs of disaster victims."90 This factor is among the most contentious in the disaster declaration process due to the subjectivity of the assessment.
FEMA's evaluation of local and state capabilities, and the capabilities of the local voluntary community, may vary greatly among catastrophes. There is an expectation that the FEMA regional office's relationship and history with the state or tribe could provide some of this information. But a cursory look at state programs available to "meet the needs of disaster victims" suggests that few resources are comparable to federal help in intent or in scope. A National Emergency Management Association (NEMA) survey of its members for state-funded disaster assistance showed that relatively few states provide assistance beyond that authorized in the Stafford Act. Table 1 summarizes data from that survey. Since 2010 five fewer states have a PA program in place but one additional state provides a form of IA assistance.
Source: National Emergency Management Association, May 2014.
In the same vein, attempts to assess the capacity of local voluntary and charitable groups to handle "unmet needs" caused by a disaster can be challenging and problematic. Part of the challenge is discerning the assistance available from the non-profit, voluntary sector, and if that aid meets the needs created by the disaster event. A problematic aspect of the assessment is similar to the "good deeds" concept addressed in the "hazard mitigation" factor in PA. In that instance, the criteria reward the mitigation work that communities and states or tribes had undertaken to lessen the impact of a disaster. Similarly, a strong and efficient charitable sector at the local level that is equipped and funded to address the remaining needs could result in a disaster not being declared and federal supplemental funding not being made available.
In evaluating the capabilities of local organizations, FEMA seeks to determine the help that actually exists, rather than assistance that might be expected to be in place.
This provision does not necessarily result in delayed assistance. FEMA is able to provide help to individuals and households that have disaster damages but are waiting on insurance or other assistance for help. Those applicants can receive FEMA help as long as they agree to reimburse FEMA when they receive their other assistance.94 If a disaster occurred where almost all of the damaged dwellings were fully insured for the damage that was sustained, FEMA could conclude that a disaster declaration by the President was not necessary. Among the types of disasters FEMA frequently responds to, tornado disasters particularly reflect this challenge since tornado coverage is a part of most homeowners insurance policies.
The last factor FEMA considers in assessing IA needs is the average amount of Individual Assistance by state. FEMA has issued statistics on average losses but notes that the average numbers used are not a threshold (see Table 2). The agency does suggest that the "following averages may prove useful to states and voluntary agencies as they develop plans and programs to meet the needs of disaster victims." The inference is that the levels listed generally are what would be expected in damage to dwellings. It is based on the age of these averages that SRIA directed FEMA to update the factors.
The average numbers that follow are based on disasters that occurred between July of 1995 and July of 1999; the data are 10 years old and of questionable use today. The table divides states into three categories: small states (under 2 million in population), medium states (2 to 10 million in population) and large states (over 10 million in population). The population amounts are based on the 1990 Census.
Although FEMA's regulations stress that these are not thresholds, they are considered by agency officials in determining whether IA will be provided. Presumably states may consider that FEMA help could be forthcoming if damage reaches the state indicator levels. However, since the amounts have not been updated in fifteen years and are based on 1990 census data, it is difficult to determine the degree to which these numbers are considered. Given Congress's mandate in Section 320 of the Stafford Act, this cannot be an arithmetic formula that solely determines whether assistance is provided. But the presentation of loss indicators may guide states when considering whether to request assistance.
In addition to the issue of the data's currency, a larger and more compelling question is whether the numbers in the chart match up to the Preliminary Damage Assessments (PDAs) for those events. Absent an existing review of detailed information in PDA forms, it is not possible to determine the usefulness of the data in Table 2.96 Still, with the level of experience in this field following literally thousands of disaster declarations over the last 30 years, it could be argued that the numbers of eligible households assisted may reflect the estimated damage upon which the decision for a disaster declaration was made.
While Congress reviews the mandated GAO reports, the instructions in the SRIA legislation and other commentary on the declaration process, there are some considerations that Members may wish to review when assessing the current declaration process.
One area of consideration is the composition of Preliminary Damage Assessment teams. Team members are involved throughout the process and include local officials guiding the team, state, or tribal personnel who assist the governor or tribal leader in requesting assistance, and FEMA staff who work on the disaster, if one is declared. While FEMA staff have the opportunity at several levels to refine the information the team gathers on damages and to ask additional questions, the process could be approached in other ways. Some FEMA staff have suggested the formation of several permanent teams that would have PDAs as their prime job task without continuing involvement in particular disasters. This could result in more consistent assessments with the bonus of added perspective of team members with exposure to various disasters in many regions of the country.
The PDA is an important part of the declaration process. While it can be subject to challenge, it is also the assessment closest to the event. Given its vital role in the process the PDA deserves close attention to determine if these on-site assessments are accurately reflecting the character of an event and the likely eligible damages following a disaster event.
While the IA averages are separated by state population size, there does not appear to be a threshold number equivalent to the PA figure of $1 million in eligible damage. In the case of IA help, a dollar figure may not be desirable; however, numbers of families and households affected, or a minimum number of homes with major damage, could potentially be a starting point in establishing a base IA threshold for consideration of requests.
The current per capita indicator based on state population according to the U.S. Census is clear, but some observers believe it lacks precision. For example, the earlier discussion on PA indicators pointed out the commonality between California and Nevada regarding earthquake risk as well as the growth of the states. Their population sizes are very different but the per capita indicator alone does not necessarily measure a state's fiscal capacity.
FEMA's response to this suggestion questioned whether the use of TTR would be in violation of the legislative prohibition against arithmetic formulas.100 The TTR does have very specific information and also tracks growth within a state. However, this appears to make it a more accurate measurement. The degree of detail in the measurement would not necessarily make it the "sole" determinant of disaster aid. It could remain an indicator and one among several factors to be considered in the declaration process.
The disaster declaration process, though subject to inquiry, argument, hearings, studies, and recommendations, has changed very little over time. It remains a process that can be observed and evaluated as it occurs in the area affected by the disaster, and grows opaque as it moves up through layers of FEMA and DHS management to the White House. By making PDA information available, FEMA has begun to lift the veil on the decisions that are made.
Congress has demonstrated an interest in this process and has sought to understand its limits and its effectiveness. "From the Government Accountability Office in 1981 to Vice President Gore's National Performance Review in 1994," one student of the process noted, "countless policy critiques have called for more objective criteria for presidential disaster declarations."101 But those calls can be muted when a disaster occurs in a particular place that has particular importance to actors in the process, whether in Congress or the executive branch.
While criteria have been established to create a relatively uniform and knowable process, these criteria may not be determinative of the most critical elements considered. An emphasis on victims of unexpected natural disaster events will likely always have a compelling influence on the disaster declaration process. But since disaster relief does have a political element, at many levels, precedent arguably can have value in improving the declaration process so that it can be applied broadly and fairly. But precedent can also be problematic when discussing events of very different size and impact.
During the last Congress, attention was directed to the nature of the disaster declaration process. The 113th Congress has seen legislation introduced that has focused on local impacts over state capacity. In considering such legislation, Congress may choose to engage a broad review of the process that might include the consistency of FEMA's approach across the nation in making damage assessments, other potential indicators of state capabilities and capacities, and the currency of the factors it employs to evaluate those assessments of disaster damage and the state requests on which they are based.
Ibid. For a more detailed analysis of categories of declarations see CRS Report R42702, Stafford Act Declarations 1953-2011: Trends and Analyses, and Implications for Congress, by [author name scrubbed] and [author name scrubbed].
For example, see CRS Report RL34724, Would an Influenza Pandemic Qualify as a Major Disaster Under the Stafford Act?, by [author name scrubbed], and CRS Report R41234, Potential Stafford Act Declarations for the Gulf Coast Oil Spill: Issues for Congress, by [author name scrubbed].
For more information on disaster supplementals, see CRS Report RL33226, Emergency Supplemental Appropriations Legislation for Disaster Assistance: Summary Data, by [author name scrubbed] and [author name scrubbed]. For a listing of disaster declarations, see http://www.fema.gov/disasters.
For additional information on the DRF, see CRS Report R43537, FEMA's Disaster Relief Fund: Overview and Selected Issues, by [author name scrubbed]. Note: A "no year fund" refers to funds that do not lapse at the end of a fiscal year but instead carry over to the next year's accounts.
Rutherford H. Platt, Disasters and Democracy: The Politics of Extreme Natural Events (Washington, DC: Island Press, 1999), p. 66.
Michael J. Trebilcock and Ronald J. Daniels, "Rationales and Instruments for Government Intervention in Natural Disasters" in Ronald J. Daniels, Donald F. Kettl, and Howard Kunreuther, eds., On Risk and Disaster: Lessons from Hurricane Katrina (Philadelphia: University of Pennsylvania Press, 2006), p. 104. For additional discussion of the evolution of emergency management see Claire B. Rubin, ed., Emergency Management: The American Experience 1900-2005 (Fairfax, VA: Public Entity Risk Institute, 2007).
PDAs are conducted by FEMA regional staff along with state and local officials. In some instances, SBA and American Red Cross staff members may also participate in the assessment. For more information see the Preliminary Damage Assessment section of this report.
This is based on an interpretation of FOIA Exemption #5. See http://www.justice.gov/oip/foia-guide-2004-edition-exemption-5.
U.S. Department of Homeland Security, Federal Emergency Management Agency, Preliminary Damage Assessment Reports, at http://www.fema.gov/preliminar-damage-assessment-reports.
While tribal declarations were the most significant change, the SRIA also requested an update of a current part of the process regarding factors considered for Individual Assistance designations. The IA update is discussed later in this report.
42 U.S.C. §§5170 and 5191.
Section 102 (7) of the Stafford Act defined local governments as including "an Indian tribe or authorized tribal organization, or Alaska Native village or organization." Section 401 of Stafford noted that "all requests shall be made by the Governor of the affected state."
Rob Capriccioso, "FEMA Wants Tribes to Be Equal to States," Indian Country Today Media Network, December 7, 2011, at http://indiancountrytodaymedianetwork.com/article/fema-wants-tribes-to-be-equal-to-states-66244.
Testimony of FEMA Administrator Craig Fugate, in U.S. Congress, Senate Committee on Indian Affairs, "Facing Floods and Fires—Emergency Preparedness for Natural Disasters in Native Communities," 112th Congress, 1st. Sess., July 31, 2011.
FEMA Form 010-0-13 (3/13), "Request for Presidential Disaster Declaration Major Disaster or Emergency," Pub. No. 1660-009, expires 3/2015.
As of this report, declarations had been made by the President for the Eastern Band of Cherokee Indians; Navajo Nation; Standing Rock Sioux Tribe; Karuk Tribe; and two separate declarations for the Santa Clara Pueblo. This information is available on the FEMA website Declarations page, http://www.fema.gov/disasters.
U.S. Government Accountability Office, Disaster Assistance: Improvements Needed in Disaster Declaration Criteria and Eligibility Assurance Procedures, GAO-01-837, August 2001, p. 2.
For more information on emergency supplemental spending for disasters see CRS Report R43665, Supplemental Appropriations for Disaster Assistance: Summary Data and Analysis, by [author name scrubbed] and [author name scrubbed].
CRS Report R43537, FEMA's Disaster Relief Fund: Overview and Selected Issues, by [author name scrubbed].
For more information, see CRS Report RL33053, Federal Stafford Act Disaster Assistance: Presidential Declarations, Eligible Activities, and Funding, by [author name scrubbed].
For additional information see CRS Report R42352, An Examination of Federal Disaster Relief Under the Budget Control Act, by [author name scrubbed], [author name scrubbed], and [author name scrubbed].
Christopher Cooper and Robert Block, Disaster—Hurricane Katrina and the Failure of Homeland Security (Henry Holt and Company: New York, 2006), p. 71.
U.S. Congress, Senate Committee on Appropriations, Subcommittee on VA, HUD, and Independent Agencies, Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations for Fiscal Year 2002, 107th Congress, 1st sess., p. 252, at http://www.access.gpo.gov/congress/senate.
Opening Statement of Rep. Bennie Thompson, in U.S. Congress, House Committee on Homeland Security, Disaster Declarations, Where Is FEMA in a Time of Need?, 110th Congress, 1st. sess., March 15, 2007.
P.L. 110-28, 121 Stat. 155. This direction was contained in the "U.S. Troop Readiness, Veterans Care, Katrina Recovery, and Iraq Accountability Appropriations Act," one of several that provided supplemental funding for Hurricane Katrina recovery activities.
U.S. Congress, House Committee on Appropriations, Making Emergency Supplemental Appropriations for the Fiscal Year Ending September 30, 2007, and Other Purposes, Report to Accompany H.R. 1591, 110th Cong., 1st sess., March 20, 2007, H.Rept. 110-60, p. 211.
Government Accountability Office, FEMA Disaster Cost Estimates, GAO-08-301, February 22, 2008, p. 4.
Matt Korade, "FEMA's Success Hinges on Regional Personnel," Congressional Quarterly, March 16, 2010, at http://www.cq.com/doc/hsnews-3569657?6.
Matt A. Mayer, James Jay Carafano, and Jessica Zuckerman, "FEMA Reform and Disaster Response: Heritage Foundation Recommendations," The Heritage Foundation, web memo, August 23, 2011, http://thf_media.s3.amazonaws.com/2011pdf//wm3359pdf.
Kathleen Tierney, "The U.S. Emergency Management System Is Not Perfect but It Works," The New York Times, October 30, 2012.
P.L. 109-295, 689g, 120 Stat. 1453.
For more information see CRS Report RL33729, Federal Emergency Management Policy Changes After Hurricane Katrina: A Summary of Statutory Provisions, coordinated by [author name scrubbed].
U.S. Congress, House Subcommittee on Investigations and Oversight, The Federal Emergency Management Agency's Proposed Disaster Relief Regulations, 100th Cong., 1st sess. (Washington: GPO, 1987), pp. 3-5.
P.L. 100-707, November 23, 1988, 102 Stat. 4696.
See 42 U.S.C. 5170 and 42 U.S.C. 5191.
President Carter (Georgia), President Reagan (California), President Clinton (Arkansas), and President George W. Bush (Texas).
National Emergency Management Association, February, 2014.
This information is from the fema.gov website. Some totals mentioned in some reports are much higher. The disparity is that those reports usually conflate Fire Management Assistance Grants FMAGs, with Presidential actions. In fact, FMAGS are frequent, timely, and relatively small in cost. The decisions on those actions are made at the FEMA regional level in consultation with the governor of the affected state and regional U.S. Forest Service and FEMA HQ officials.
Patrick Roberts, Disasters and the American State (Cambridge: 2013), p. 111.
Thomas A. Garrett and Russell S. Sobel, "The Political Economy of FEMA Disaster Payments," Economic Inquiry, Vol. 41, No. 3, July 2003, pp. 496-509, http://onlinelibrary.wiley-can/doi/10.1093/ei/cbg023/pdf.
Richard S. Salkowe and Jayajit Chakraborty, "Federal Disaster Relief in the U.S.: The Role of Political Partisanship and Preference in Presidential Disaster Declarations and Turndowns," Journal of Homeland Security and Emergency Management, Vol. 6, Issue 1, Article 28, 2009.
Richard Sylves, Disaster Policy and Politics (Washington, DC: CQ Press, 2008), p. 100.
Richard Sylves, Quick Response Report #86: The Politics and Administration of Presidential Disaster Declarations: The California Floods of Winter 1995, at http://www.colorado.edu/hazards/research/qr/qr86.html.
FEMA has 10 regional offices: Region 1 (Boston, MA), Region 2 (New York, NY), Region 3 (Philadelphia, PA), Region 4 (Atlanta, GA), Region 5 (Chicago, IL), Region 6 (Denton, TX), Region 7 (Kansas City, MO), Region 8 (Denver, CO), Region 9 (Oakland, CA), and Region 10 (Bothell, WA).
Sally Kestin and Megan O'Matz, "FEMA Ruled on Disaster Before Verifying Dade Damage," South Florida Sun-Sentinel, at http://www.sun-sentinel.com/news/sfl-fema15may15,0,6848867.story?coll=sfla-news-utilities.
U.S. Department of Homeland Security, Federal Emergency Management Agency, "Joint State-Federal Preliminary Damage Assessment Teams Visit Flood-Damaged Communities," Release Number R10-06-047, November 13, 2006, at http://www.fema.gov/news/newsrelease.fema?id=31509.
Memo from FEMA Office of Legislative Affairs, September 22, 2014.
U.S. Department of Homeland Security, Federal Emergency Management Agency, "Categories of Work," http://www.fema.gov/public-assistance-local-state-tribal-and-non-profit/categories-work#catB.
U.S. Department of Homeland Security, Federal Emergency Management Agency, "Notice of Adjustment of Statewide Per Capita Impact Indicator," 78 Federal Register, 64231, October 28, 2013.
U.S. Census Bureau, State and County Quick Facts, at http://quickfacts.census.gov/gfd/states/06000.html.
U.S. Geological Survey, Earthquake Hazards Program, "Earthquake Density Maps for the United States," at http://earthquake.usgs.gov/regional/states/us_density.php.
U.S. Department of Homeland Security, Federal Emergency Management Agency, "Notice of Adjustment of Countywide Per Capita Impact Indicator," 78 Federal Register, 64232, October 28, 2013.
S. 1960 and H.R. 3925, "Fairness in Federal Disaster Declaration Act of 2014," were introduced in January 2014.
H.R. 1859, "Disaster Declaration Improvement Act," was introduced in May, 2013.
Department of Homeland Security Appropriations Bill, 2015, full committee print, 113th Cong. 2nd Sess. H.Rept. 113-481 to accompany H.R. 4903, p. 106.
For information on public insurance coverage, see "Cost of Risk Survey" conducted by the Public Entity Risk Institute (PERI) at http://www.riskinstitute.org.
44 C.F.R. §206.253. For additional information, see CRS Report RS22945, Flood Insurance Requirements for Stafford Act Assistance, by [author name scrubbed].
42 U.S.C. §5170c and 5133.
For more information, see CRS Report R43384, Emergency Relief for Disaster Damaged Roads and Transit Systems: In Brief, by [author name scrubbed].
For additional discussion of this law, see CRS Report RL34209, Commercial Fishery Disaster Assistance, by [author name scrubbed].
For more information, see CRS Report RS21212, Agricultural Disaster Assistance, by [author name scrubbed]. Also see CRS Report R43594, Analysis of Senate-Passed S. 2198: Emergency Drought Relief Act of 2014, by [author name scrubbed] and [author name scrubbed].
For further discussion see CRS Report R41101, FEMA Disaster Cost-Shares: Evolution and Analysis, by [author name scrubbed].
For further discussion of this provision see CRS Report R42991, Analysis of the Sandy Recovery Improvement Act of 2013, by [author name scrubbed], [author name scrubbed], and [author name scrubbed].
DHS/FEMA, Sandy Improvement Act of 2013, Program Update, March 2014, https://www.fema.gov/about-agency/sandy-recovery-improvement-act-2013. Status confirmed October 17, 2014.
P.L. 109-295, §689g, 120 Stat. 1453.
Report from FEMA's Office of Legislative Affairs, May 13, 2014. This information was confirmed as still accurate by that office on October 17, 2014.
This statement remains accurate. However, since FEMA has begun to list PDA information on its website, it should be possible to begin to assess the efficacy of the factors employed to determine IA damage and declaration criteria.
P.L. 113-2, Section 1109, 127 Stat. 47.
U.S. Government Accountability Office, Disaster Assistance: Improvement Needed in Disaster Declaration Criteria and Eligibility Assurance Procedures, GAO-01-837, August 2001, p. 11.
The Preliminary Damage Assessment (PDA) process is a mechanism used to determine the impact and magnitude of damage and resulting needs of individuals, businesses, public sector, and community as a whole. Information collected is used by the State as a basis for the governor's request for a major disaster or emergency declaration, and by the President in determining a response to the governor's request (44 C.F.R. §206.33).
When a governor's request for major disaster assistance under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (Stafford Act) is under review, a number of primary factors are considered to determine whether assistance is warranted. These factors are outlined in FEMA's regulations (44 C.F.R. §206.48). The President has ultimate discretion and decision making authority to declare major disasters and emergencies under the Stafford Act (42 U.S.C. §5170 and §5191).
Affected: some damage to the structure and contents, but still habitable.
By law, federal disaster assistance cannot duplicate insurance coverage (44 C.F.R. §206.48(b)(5)).
Special populations, such as low-income, the elderly, or the unemployed may indicate a greater need for assistance (44 C.F.R. §206.48(b)(3)).
Based on state population in the 2010 Census.
Statewide Per Capita Impact Indicator for FY2014, Federal Register, October 1, 2013.
Countywide Per Capita Impact Indicator for FY2014, Federal Register, October 1, 2013.


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Economiccomponentoflegalizationofthecriminalincome (economical and legal aspects) Abakanova V. A.
Specificity of entrepreneurship in the agricultural sector in Russia and economic security in providing the country with food Alpatov G.Е.
Modern personnel technologies public authorities Aslanov M.A.
Application of fuzzy logic in the management of food industry enterprises Baychenko A.A., Baychenko L.A., Aret V.A.
Tools of formation of customer loyalty in the field of restaurant industry Bakharev V.V.
Crisis management: Foreignexperienceand practice in Russia Belous E.V., Petropavlova G.P.
Reflection of state regulation of innovative activity in Russia in training courses for bachelors Valdaytseva M.V.
Analysis of Essence and Prospects of Forms of Settlements in Domestic and Foreign Economy between Business Entities Vitsko E.A.
Economic maintenance and problems of creation of food clusters in Ukraine Glebov R.V.
Modern trends in consumer behavior on the consumer goods market of Samara city Grigoryants I. A. , Bobkova E.Y.
Balanced scorecard to assess the sustainability companies Fayzullin R.V., Davletova R.S.
The formation of the system of key indicators of efficiency and the problem of evaluation of activity of employees of scientific - research laboratories in industry Davidovsky F.N.
To a problem of an assessment of efficiency of activity of service on human resource management Dolgopolova I.V.
Experience of cooperation commercial bank with the higher education institutions Dolzhenko R.A.
Perspectives of natural water rational using Evdokimov A.A., Kiss V.V., Karjaubaev А.А. , Shaposhnikova М.М.
Modeling service consumer behaviour Zemskova A.V. , Bugorsky V. N.
Hypothesis of convergence of real and financial sectors of economy Zueva O.A.
Organization of problem teaching students during the development of the educational program Kleshcheva I.V.
Dilemma of Partnership in Business Kovalenko B.B.
Improving quality of personal and business university teaching as an important factor in the effectiveness of educational process: normative - legal and social issues Kolotilin A.V.
The development and implementation of a multi-disciplinary course for higher environmental education “Introducing eco-innovations in urban governance” Kopyltsova S.E., Kulyk M.I. , Falaleeva М.А. , Khandogina O.V. , Shilova I.V.
Value of registration and analytical information in ensuring tax safety of the managing subject (on the example of the small innovative enterprise of the industry of JSC Reflaks-S) Koroleva L.P., Gavina E.V.
Risks of public-private cooperation in the field of military logistics Kurbanov A. Kh., Krekotnev R.N., Pakhomov V.I.
Comparative characteristics of innovative forms of financing business Laskina L.Y., Vlasova M.S. , Pogostinskaja N.N.
Evaluation of recreational load on topsoil and solutions for decreasing the forest ecosystems digression in the national natural park “Skole Beskids”, Ukrainian Carpathians Lenevych O.I. , Shestakova E.S. , Rudyk A.N. , Kopyltsova S.E.
To the question of scenario management of enterprise products promotion Lochan S.A. , Fedyunin A.I.
Economic Factorsin Modern Theories of Institutional Trust Lukin V. N. , Musienko T. V.
Методология разложения общего эффекта влияния девальвации на национальных производителей на эффект замены и эффект дохода с учетом доли импорта во внутристрановом спросе (на примере резкого снижения курса рубля в 1998 и 2008 гг.) Malykh E.B.
Hotel chains as the only effective form of organization of hotel business at the present stage of development of services Malyushenkova E.D. , Morozova M.A.
Value of activity of ITMO university for development of innovative technologies of training in modern Russia Malyavko D.P., Kolotilin A.V.
Social aspects of ecology and humankind ecological Sobornost Melokumov E.V.
Strategic planning and forecasting of innovative development of the enterprises Mukhina T.N. , Minaichenkova E.I. , Filatov V. V.
The impact of innovation on competitiveness of Russian enterprises Mukhina T.N. , Minaichenkova E.I. , Filatov V. V.
Evaluation of the effectiveness of the network form organizations hospitality at the present stage of development of the sphere of hotel services Malyushenkova E.D. , Morozova M.A., Skvortsova M.V.
Methodological aspects of regulation and development of the urban land market for housing construction Muratova Y.D.
Cost methods of evaluating the effectiveness of the company’s management Nazarova V.V., Birukova D.S.
Evaluation of long-term investment projects in shipbuilding Nazarova V.V., Karpova D.A.
Decentralization of Bank capital as an indicator of the trust level in the interbank lending market Oleshewa E.E.
Study of economic mechanisms and functional characteristics market management innovations Polozhentseva I.V. , Palastina I.P. , Filatov V. V.
Methods of risk management in metallurgical industry Prihodko R.V., Kochegarova T.S.
NGO transition from “third” to “forth” sector: new solution for old problems Rozhdestvenskaia N.V. , Boguslavskaya S. B.
Innovative education - innovation economy - innovative society Rukina I.M. , Filatov V. V.
Selection of a buyer of industrial service Samsonova A.S., Lipatnikov V.S.
Corporate culture - factor business success Semenchenko T.V. , Kovalenko B.B.
Modern concepts and enhancement tools effectiveness of corporations Sidorova L.V. , Kovalenko B.B.
Analysis of Financial Stability and Directions of Innovative Development of the Enterprise by the example of JSC Plant “Energy” Vasilenok V.L., Silakova L.V., Yakovleva E.A.
Informal component of internal institutional environment of franchise network Lipatnikov V.S., Timofeeva E.G.
Analysis of the functioning transportation system region during the implementation of transport Tohirov T. I.
Analysis of environmental charges the enterprise Sue "Vodokanal of St. Petersburg" Treiman M.G. , Siniakova M.A.
Using randomized indicators for qualitative assessment of the feasibility of IT projects Tushavin V. A.
Forecasting of development of the market of innovations sectoral economic systems in conditions of uncertainty of the environment Filatov V. V.
The aspect of mass media in the classes of Russian as foreign languages as an important factor of forming linguistic and cultural competence by the foreign students of economics Finagina Y.V.
About specific causes of monopolization of public procurement market, or how to "kill" competition with auctions Khvalynskiy D.S.
Dynamics of development of small business: problems and prospects Hnykina T.S. , Fomichenko I.A.
Investigation of the performance of the environmental management systems implementation. Process approach implementation in the environmental management Khoroshavin A.V.
Tools of outsourcing cooperation management for internal troops of the Russian Federation Kurbanov A. Kh., Yamaletdinov A.F.
Methods used for effective management decision-making in entrepreneurship Negreeva V.V., Aleksashkin Y.N. , Tretyakov K.N.
Generalized Darwinism as an Economical Theory Levit G.S., Hossfeld Uwe , Polatayko S.V. , Lvov A.A.
Scientific and technological progress: demographic determinism, resources and ecology Shestakova I.G.
Improved and Accelerated Multiresolution Linear Algorithm for Data Clustering Smirnov A.A. , Sharlay V.V., Mehta Parth J.
Agroecological assessment of soil and conditions of the winter wheat crop formation in the North-West Black Sea region Floria L.V. , Kopyltsova S.E.

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PAUL MULFORD vs. JOSEPH MANGANO.
Present: LIACOS, C.J. WILKINS, NOLAN, LYNCH, & O'CONNOR, JJ.
In an action by a restaurant employee, injured when he fell from the hood of a coemployee's automobile in the restaurant's parking lot, brought against the coemployee, summary judgment was incorrectly entered in favor of the defendant on the ground that the action was barred by the workers' compensation immunity, where there remained a genuine issue of material fact whether the defendant was, at the time of the accident, acting in the course of his employment.  O'CONNOR, J., concurring.
CIVIL ACTION commenced in the Superior Court Department on December 13, 1989.
The case was heard by Catherine A. White, J., on a motion for summary judgment.
Mark A. Gallant for the plaintiff.
Mary Secor Sullivan for the defendant.
Marc L. LaCasse & Marjorie O. Dresser, for Alliance of American Insurers, amicus curiae, submitted a brief.
WILKINS, J. We granted the defendant's application for further appellate review following the Appeals Court's issuance of its opinion in Mulford v. Mangano, 35 Mass. App. Ct. 800 (1994). The defendant Mangano argues that, as a coemployee of the plaintiff, he is immune from liability in this case.
The plaintiff argues that the Appeals Court erred in applying the traditional workers' compensation "course of employment" standard in determining whether Mangano as a coemployee was immune from tort liability under the workers' compensation act. G. L. c. 152 (1992 ed.). We shall also consider whether the Appeals Court applied the proper rule of law in determining whether the defendant was acting in the course of his employment, where arguably he was acting either for a job-related purpose or for a personal reason, or perhaps both, when the plaintiff was injured. We conclude that the Appeals Court properly reversed the summary judgment entered for the defendant.
"The plaintiff [Mulford] and the defendant [Mangano] were employed at a Papa Gino's restaurant in Stoneham. On April 23, 1987, Mulford worked his regular shift as a dishwasher. Mangano, employed as a cook, was not scheduled to work that day but came to the restaurant around 9:00 P.M. for two reasons, according to his deposition testimony. He came to observe the cashing-out procedure followed by the managers at the end of the day, in the hope of learning skills to become in time a manager himself, and also to watch the end of a Boston Celtics playoff game, on a television that had been installed by employees, for the playoffs, in a back room of the restaurant. He had watched an earlier part of the telecast at home.
"Mangano was to give Mulford a ride home; both left the restaurant around 11:00 P.M. and proceeded to the restaurant parking lot. There, in circumstances that are disputed, Mulford fell from the hood of Mangano's automobile as Mangano backed it from its space." Mulford v. Mangano, supra at 800-801.
The Appeals Court assumed, and no party has objected, "that Mangano was not scheduled to work the evening of the accident, that he had not been encouraged by the employer to learn managers' skills, that cashing out was no part of his duties as a cook, that he did not punch the time clock on coming or leaving, and that he did not expect to be paid or otherwise credited for his presence that evening." Id. at 802.
The plaintiff brought this action to recover for his injuries. Mangano moved for summary judgment on the ground that he was a coemployee entitled to immunity under the workers' compensation act. A Superior Court judge allowed summary judgment for the defendant. [Note 1] As we have said, we agree with the Appeals Court's conclusion that summary judgment was inappropriately entered.
Section 26 (1992 ed.), to an employee (who has not preserved his common law rights) who receives a personal injury "arising out of and in the course of his employment." If "compensation benefits are available under G. L. c. 152, an employee injured in the course of his employment by the negligence of a fellow employee may not recover from that fellow employee if he also was acting in the course of his employment." Saharceski v. Marcure, 373 Mass. 304, 306 (1977). See G. L. c. 152, Section 15 (next to last sentence).
this country among States providing tort immunity for coemployees. See 2A A. Larson, Workmen's Compensation Section 72.23, at. 14-171 -- 14-174 (1993) ("The more satisfactory test, unless expressly ruled out by statute, . . . simply use[s] the regular workmen's compensation course of employment standard"); Annot., 21 A.L.R. 3d 845, 876-879 (1968 & Supp. 1993). The use of a course of employment rule provides a ready source of law for deciding claims of coemployee immunity. It also protects a coemployee to the same degree as the employer from common law liability for the coemployee's negligence, thereby not leaving the coemployee standing alone to face a common law claim. This protection for the coemployee is part of the exchange for the employee's surrender of common law rights.
In what we have just said, we have expressed no disagreement with what the Appeals Court stated on the same subject (except for our emphasis that the phrase "course of employment" should be used and not "scope of employment"). In fact, we agree with the Appeals Court on a number of points: (1) the plaintiff, as a matter of law, was injured in the course of his employment in his employer's parking lot as he was leaving work, Mulford v. Mangano, supra at 801; (2) the question in this case is whether the defendant Mangano was acting in the course of his employment, id. at 801-802; (3) in deciding that question "[i]t is enough if he is upon his employer's premises occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment," id. at 802, quoting Souza's Case, 316 Mass. 332, 335 (1944); (4) if Mangano had gone to his place of employment solely to watch a basketball game and he did only that, he would not have qualified for coemployee immunity, id.; and (5) if he had been there solely with the bona fide and reasonable job-related purpose of upgrading his job skills and his employer knowing of it did not discourage such activity, he would have been acting within the course of his employment and entitled to coemployee immunity, id. at 803.
The issue here is what to do when it appears that there may have been or were two purposes, one that would make the injury compensable and one that would not. "While an employee may have more than one motive for performing an act, as long as one significant purpose is related to the employment the employee will be considered to be acting in the course of her employment." Mendes v. Tin Kee Ng, supra at 134-135. See Locke, supra at Section 247. The question then becomes what proof is required to demonstrate that the job-related purpose was a "significant" one. The Appeals Court's opinion correctly did not say that, where an employee acts for two purposes, one that would make the injury compensable and another that would not, the employee's testimony is controlling as to whether a particular purpose was or was not a significant reason for his action. See Mulford v. Mangano, supra at 803-804. Such an exclusively subjective source for determining the presence or absence of a job-related purpose for an employee's action would be inappropriate. it would involve a difficult factual inquiry and might well be unreliable because circumstances may tend to lead the employee to opt for the answer, which, in an after-the-fact assessment, appears more likely to benefit him financially. We thus reject any test that looks solely to an employee's state of mind to see if the job-related purpose was so significant that he would have acted on that motive even if the private purpose had not existed. If we were to adopt such a test, summary judgment in this case would likely be inappropriate in any event because Mangano's motive, intent, or state of mind and his credibility would be the major issues. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991), and cases cited.
did at the restaurant that night and at any other time concerning the learning of the cashing-out process would be relevant. We agree with the Appeals Court that the employer's encouragement or discouragement, if any, of employees' attempts to learn the cashing-out process and other similar job skills bears on the question whether the defendant was acting in the course of his employment. Mulford v. Mangano, supra at 803. What employees knew about management's attitude toward such training would also be relevant.
The absence of any evidence of what Mangano actually did that night and had done previously concerning the cashing-out process and the absence of evidence of his employer's attitude toward such job-skills training make the award of summary judgment inappropriate. Mangano's uncontroverted testimony that one of his reasons for going to the restaurant that evening was job related, although relevant to the question, does not establish for summary judgment purposes that his job-related purpose was a significant reason for his presence at the restaurant. Objective evidence might warrant a contrary finding, and the summary judgment record does not foreclose the possibility that objective evidence would do so. Hence, because there is a genuine issue of material fact on the question whether he was acting within the course of his employment, Mangano was not entitled to summary judgment.
ing the cashing-out procedure was to gain knowledge that might help him to become a manager some day.
I agree with the court that the defendant is not entitled to summary judgment and that the judgment must be reversed. The defendant's purpose for being at the restaurant when the plaintiff was injured is an essential component of his coemployee immunity defense, and the plaintiff cannot properly be foreclosed from litigating that matter. As the Appeals Court said, 35 Mass. App. Ct. 800, 804 (1994), "Where a party's motive or state of mind is at issue, summary judgment is rarely appropriate."
I write separately only to express my disagreement with the court in one important respect. The court states its agreement with the Appeals Court that, if the defendant had been on the restaurant property "solely with the bona fide and reasonable job-related purpose of upgrading his job skills and his employer knowing of it did not discourage such activity, he would have been acting within the course of his employment and entitled to coemployee immunity." Ante at 411. It is obvious from the context that the "job-related purpose of upgrading his job skills" to which the court refers is the defendant's objective of acquiring familiarity with a managerial job, a job other than the one he was employed to do. There is, of course, no suggestion by anyone that the defendant's objective also was to upgrade his cooking skills. It is clear, then, that the court is of the view that an employee, who goes onto his employer's property for the sole purpose of preparing himself for a job which he has not been employed to do, is acting in the course of his employment for workers' compensation benefit purposes, in addition to coemployee immunity purposes, if his employer failed to discourage the practice after learning of it. The result is that an employee who is injured in such circumstances may be entitled to workers' compensation benefits despite the fact that the employee was serving his own interests and none of his employer's.
the job he was employed to do, would be acting in the course of his employment. I would agree, too, that an employee, who acts in response to his employer's express or implicit encouragement to go onto the property to acquire information about other jobs, would be acting in the course of his employment. It is a very different proposition, however, and one with which I do not agree, to say that an employee acts in the course of his employment if he goes onto his employer's property to serve an interest of the employee alone and the employer, aware of the employee's interest but not sharing it, fails to discourage that conduct. The court cites no case, and I am aware of none, that supports such an unfair proposition.
The defendant's deposition testimony establishes, favorably to the plaintiff, that neither of the defendant's purposes for being on his employer's property was related to cooking, which was the job he was employed to do. Furthermore, the defendant has not established for summary judgment purposes that he was explicitly or implicitly encouraged by his employer to be on the employer's premises to observe cashing-out procedures. In my view, that is a second reason why the summary judgment for the defendant that was entered in the Superior Court should be reversed.
[Note 1] In fairness to the motion judge, we should note that the distinction between "scope of employment" and "course of employment" asserted by the plaintiff on appeal was not advanced in the memoranda submitted to her on the summary judgment question. Mangano's deposition which provides the facts on which, by assent of both parties, the issues on appeal are argued apparently was not presented to the judge until the plaintiff moved for reconsideration of the order allowing summary judgment for the defendant. The defendant did not argue, and does not now argue, that issues of mixed purpose coemployee activity were not properly before the Appeals Court.
[Note 2] The plaintiff strenuously argues to the contrary in his supplemental brief to this court filed after we allowed further appellate review in this case. The point was presented less clearly in the plaintiff's original appellate brief. The Appeals Court opinion does not analyze the point but correctly applies the rule we now expressly recognize. See Mulford v. Mangano, 35 Mass. App. Ct. 800, 801-802 (1994).
[Note 3] It is true that from time to time opinions (as did the Appeals Court opinion in this case) have used the phrases "scope of employment" and "course of employment" interchangeably, but never with any suggestion that the correct test for purposes of the coemployee immunity rule, "course of employment," meant anything different from "course of employment" for workers' compensation coverage purposes. See, e.g., O'Connell v. Chasdi, 400 Mass. 686, 690-691 (1987); Mendes v. Tin Kee Ng, 400 Mass. 131, 134-135 (1987); Murphy v. Miettinen, 317 Mass. 633, 635 (1945).
The very name of the analogous common law "fellow servant rule" suggests that the tort law "scope of employment" principle applies because it applies only to those agents who were servants acting in the scope of their employment. This case does not involve the common law fellow servant rule. General Laws c. 152, Section 15, refers to the "insured person's employees."

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Justia › US Law › Case Law › California Case Law › Cal. 2d › Volume 3 › Gillis v. Pan American Western Pet. Co.
Gillis v. Pan American Western Pet. Co.
HECTOR GILLIS et al., Appellants, v. PAN AMERICAN WESTERN PETROLEUM COMPANY (a Corporation) et al., Defendants; EDWARD L. DOHENY et al., Respondents.
W. A. Alderson, L. Frank Ottofy, G. C. De Garmo, W. M. Crane, Mott, Vallee & Grant, John G. Mott and Paul Vallee for Appellants.
Latham, Watkins & Bouchard, Dana Latham, Paul R. Watkins, U.S. Webb, Attorney-General, and Ralph O. Marron, Deputy Attorney- General, as Amici Curiae on Behalf of Appellants.
Laurence W. Beilenson as Amicus Curiae on Behalf of Respondents.
The plaintiffs commenced this action against the defendant corporation and its directors to recover from them the amounts paid by them for capital stock of the corporation, it being alleged that no permit had been issued authorizing issuance of stock in California. Demurrers to the complaint and amended complaint having been sustained, with leave to amend, plaintiffs filed their second amended complaint, to which the individual defendants interposed a demurrer, which was sustained without leave to amend. This appeal is from the judgment of dismissal in favor of the demurring defendants rendered pursuant to the foregoing order.
The allegations of the second amended complaint, to which we shall refer hereafter as the complaint, may be briefly summarized as follows: The individual defendants were the incorporators and at all the times mentioned the directors of the defendant corporation. They organized it under the laws of Delaware for the purpose and with the plan of taking title to certain California property, and of conducting its business and maintaining its principal place of business at Los Angeles, California, and since its incorporation the company has maintained its principal place of business at Los Angeles, and has transacted all of its business there, including the holding of its meetings of directors. It is alleged that the plan of incorporating under the laws of Delaware was designedly and purposely followed for the purpose of evading the Corporate Securities Act of this state. It is then set forth that subsequent to the establishment of its principal place of business the individual defendants as directors and at meetings of the board in California, ordered issued certain of its capital stock, including that sold to appellants, and did order issued and did issue to appellants in California twenty-two hundred shares, for which appellants paid the sum of $63,357.50. Allegations then follow to the effect that the defendant corporation had not applied for a permit authorizing it to issue its capital stock, and had wholly failed to comply with the provisions of the Corporate Securities Act; that the certificates issued to appellants were void and worthless; that all [3 Cal. 2d 252] of the defendants knowingly directed and aided and assisted in the issuance of the stock; that appellants, although they commenced their purchases on December 16, 1925, and ended them on April 3, 1928, did not nor did either of them know that the corporation had not complied with the provisions of the Corporate Securities Act until the 10th of October, 1930, at which time an article was published in a Los Angeles newspaper to the effect that the corporation had sold its stock without a permit; that plaintiffs relied implicitly upon the genuineness of the stock issued to them and believing that the corporation had complied with all the provisions of the Corporate Securities Act; and finally that appellants were damaged in the sum paid for the stock which has been lost to them by the issuance of said stock.
 We are concerned, of course, with whether the demurrer was properly sustained and must of necessity examine the contentions of respondents to determine the question. They assert that the issuance of capital stock is an internal affair of a corporation governed by the law of the state where it was incorporated, and rely upon such authorities as Southern Sierras Power Co. v. Railroad Commission, 205 Cal. 479 [271 P. 747], In re Fryeburg Water Co., 79 N. H. 123 [106 Atl. 225, 18 A.L.R. 1373], and Mau v. Montana Pacific Oil Co., 16 Del. Ch. 114 [141 Atl. 828]. An examination of the cited authorities demonstrates that they are not persuasive of the point that the state lacks the power to declare void the issuance of stock in this state by a foreign corporation. The Southern Sierras case was one where a Wyoming corporation, engaged in this state in the generation and sale of electrical energy, sought to compel the Railroad Commission to grant it permission to issue $2,000,000 of its preferred stock for the purpose of refunding or paying its outstanding obligations. The court held that the commission was without jurisdiction, for the reason that it was never intended by the Public Utilities Act of this state "to subject foreign corporations to regulation concerning the exercise of the inherent corporate powers conferred upon them by the legislative power of the incorporating state". It was largely grounded upon the Fryeburg case, which was very similar in character. The Fryeburg Water Company was a Maine corporation doing business in both Maine and New Hampshire. It sought to [3 Cal. 2d 253] compel the public service commission to approve that portion of a stock dividend which was represented by its capital investment in New Hampshire. The court refused the writ upon the statement that while the language of the act conferring authority upon the commission was quite broad it would not be "presumed that the legislature intended to give the commission power to regulate the internal affairs of such corporations". We have no criticism of these authorities. Indeed, in Commonwealth Acceptance Corp. v. Jordan, 198 Cal. 618 [246 P. 796], this court called attention to the well-known fact that the laws of the several states authorize different capital stock structures for corporations, and under the doctrine of comity they are allowed, in the absence of express constitutional or statutory inhibitions, to enter other states for the purpose of doing business, regardless of whether a corporation with like structure is permitted to be formed in the latter states. However, these authorities are far from holding that the issuance and sale of the stock in a state other than that in which the corporation is formed is not a proper subject for legislative action. A number of authorities by their conclusions confirm the right of the state to protect its citizens, by legislative interposition, against the issuance or sale of stock in the state. Among these we cite, Hohn v. Peters, 216 Cal. 406 [14 PaCal.2d 519]; Hayden Plan Co. v. Friedlander, 97 Cal. App. 12-16 [275 P. 248, 253]; In re Flesher, 81 Cal. App. 128 [252 P. 1057]. In the case of London, Paris & American Bank v. Aronstein, 117 Fed. 601-609, it is said: "It is true that the courts in California cannot control the internal affairs of any foreign corporation. Such matters are to be conducted in pursuance of and in compliance with the provisions of the charter of the foreign corporation, and the laws of the country where it was created; but in the management and method of its business affairs in California with the citizens and residents thereof, in the sale or disposition or transfer of the shares of stock, it must conform to the laws of California in relation to such matters, and is bound thereby. In the recent case of Williams v. Gaylord, supra, 186 U.S. 157 [22 S. Ct. 798, 46 L. Ed. 1102], the Supreme Court of the United States said: 'When a corporation sells or encumbers its property, incurs debts, or gives securities, it does business; and a statute regulating such transactions does not regulate [3 Cal. 2d 254] the internal affairs of the corporation.' " (Italics ours.) In Hall v. Geiger-Jones Co., 242 U.S. 539-550 [37 S. Ct. 217, 61 L. Ed. 480, Ann. Cas. 1917C, 643, L.R.A. 1917F, 514], we find a similar statement of the purpose of legislation similar to that we are considering which is helpful in arriving at a sound conclusion. It is as follows: "It will be observed, therefore, that the law is a regulation of business, constrains conduct only to that end, the purpose being to protect the public against the imposition of unsubstantial schemes and the securities based upon them. Whatever prohibition there is, is a means to the same purpose, made necessary, it may be supposed, by the persistence of evil and its insidious forms and the experience of the inadequacy of penalties or other repressive measures." To like effect is Merrick v. N.W. Halsey & Co., 242 U.S. 568 [37 S. Ct. 227, 61 L. Ed. 498]. The case of Biddle v. Smith, 148 Tenn. 489-494 [256 S.W. 453], is authority for the proposition that in order "to protect residents of the state against the imposition of worthless investments offered by domestic and foreign investment companies under whatsoever guise presented", the legislature is empowered to restrict valid issues to those which are in accordance with a permit therefor and to declare void other issues. To the same effect is Edward v. Ioor, 205 Mich. 617 [172 S.W. 620, 15 A.L.R. 256]. Conceding, therefore, the premise of respondents' argument that ordinarily speaking the issuance of capital stock or the stock structure of a corporation is an internal affair, yet the issuance and sale of stock within a state other than that of its organization may be regulated in order to protect the residents and citizens of the former state. And in order to render such regulation effective it is undoubtedly within the legislative power to declare that acts done in contravention of the statute shall be void. From the foregoing observations it becomes apparent that the element which takes the forbidden acts beyond the realm of the corporation's internal affairs, is that of dealing with the stock in this state in such a manner that residents of this state may not be defrauded by dishonest corporations. Corporations conducted in good faith must submit to its regulation in order to prevent the operation of those which are not so run.
We are not convinced by the reasoning in Mau v. Montana Pacific Oil Co., supra. What is there said to the contrary [3 Cal. 2d 255] of our conclusions was not necessary to a decision of the case, and appears to have entirely overlooked the protective factor which we have assigned as the justification for such legislation. This may possibly be explained by the fact that the state wherein it was rendered is one of two where similar legislation has not been adopted.
 It is next asserted by respondents that the complaint is not grounded in fraud, but upon contract. Their argument in this particular is to the effect that while the sale of stock may be void, the issuance thereof is not, hence the purchasers received valid stock, or, as phrased in the brief, "got just what he bargained for, to wit: validly issued stock". Assuming that it is necessary to do more than point out the circuitous route of the argument, we think the conclusion reached upon the first contention effectually disposes of this suggestion. However, respondents say, assuming the invalidity of the issuance of stock, yet the plaintiffs have elected to disaffirm the contract and sue in contract--or have disaffirmed the contract because of lack of consideration and are seeking the recovery of the moneys paid out thereunder. With this argument we may also consider the assertion, separately stated by respondents, that plaintiffs have pleaded no actionable fraud. In substance, as already observed, the plaintiffs alleged that these respondents ordered the stock to be issued and sold in California; that the defendant corporation had no permit; and that plaintiffs were unaware of this noncompliance with the law when they purchased the stock so ordered to be issued; that plaintiffs relied upon the genuineness of the stock; that all of respondents knowingly aided and assisted in the issuance of the stock; and that the plan of organization was designed by respondents to evade the laws of California. We think respondents misconceive the purpose of these allegations. In Green v. Caribou Oil Min. Co., 179 Cal. 787 [178 P. 950], involving a certificate of stock illegally issued, this court in referring to fraud said: "It comes from the false issue itself, which is the act of the corporation officers within the apparent scope of their authority, which, in effect, is a representation by the corporation itself to the purchaser from the original holder that the false stock is genuine."  So, here, when respondents valued the stock issued and took all the necessary preliminary steps, and had the corporation issue the stock to appellants, they, in effect, represented that [3 Cal. 2d 256] they had complied with the Corporate Securities Act and had obtained a permit without which the stock could not be issued or sold. Such is the effect of Boss v. Silent Drama Syndicate, 82 Cal. App. 109 [255 P. 225], where the court said that the purchaser had the right to rely upon a similar representation. And in MacDonald v. Reich & Lievre, Inc., 100 Cal. App. 736-742 [281 P. 106], we read: "When a corporation issues to the public certificates of stock, regular on their face, it amounts substantially to a representation that the certificates are regular and valid. Certificates of stock so issued by a corporation, but which were irregular or void for reasons not participated in by the stockholder, have been held to amount to a misrepresentation and fraud upon the part of the corporation officials for which the corporation is answerable." (Citing cases.) To the same effect reference may be had to Walker v. Harbor Realty & Development Corp., 214 Cal. 46 [3 PaCal.2d 557]; Randall v. California L. B. Syndicate, 217 Cal. 594 [20 PaCal.2d 331], Mannion v. Baldwin, 217 Cal. 600 [20 PaCal.2d 678], and Holmquist v. Kent, 219 Cal. 231 [25 PaCal.2d 977]. The allegations of the present case bring it within the rule announced--and we are not called upon to consider an assumed situation where the information of the purchasers is sufficient to remove it from the operations of the rule.
 An argument is advanced to the effect that inasmuch as the issue is void and cannot be affirmed we must as a matter of logic hold, since contracts induced by fraud may be ratified, that fraud cannot be made the foundation of the action. This contention overlooks the fact that the contract is void irrespective of the fraud and not by reason of it. The fraud induced a void contract, it is true, but assuming that there had been no fraud the contract would still have been void, even though in certain circumstances under the rule of pari delicto the courts would render no relief to the purchaser.
Other claims are made, which when analyzed are found to be restatements of points already sufficiently discussed. We believe that no useful purpose would be served by extending this opinion. From what has already been said it is obvious that the complaint stated a cause of action, and that the demurrer should have been overruled.
Shenk, J., Preston, J., Seawell, J., Curtis, J., and Waste, C.J., concurred.

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