Wednesday, July 21, 2010


Executive Order 12148
SOURCE: The provisions of Executive Order 12148 of July 20, 1979, appear at 44 FR 43239, 3 CFR, 1979 Comp., p.412, 50 USC App.2251 note.

Okay a starting point to give a side by side of E.O. 12148 vis a vis the Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 100-707 which amended in part, supplemented in part, and revoked in part the Disaster Relief Act of 1974, P.L. 93-288.

See below:
E.O. 121 Robert T. Stafford Act
2-101.   The Director of the Federal Emergency Management Agency shall establish Federal policies for, and coordinate, all civil defense and civil emergency planning, management, mitigation, and assistance functions of Executive agencies.
2-102. The Director shall periodically review and evaluate the civil defense and civil emergency functions of the Executive agencies.  In order to improve the efficiency and effectiveness of those functions, the Director shall recommend to the President alternative methods of providing Federal planning, management, mitigation, and assistance.
Declaration of Policy (42 U.S.C. § 5195)
§ 601. The purpose of this title is to provide a system of emergency preparedness for the protection of life and property in the United States from hazards and to vest responsibility for emergency preparedness jointly in the Federal government and the States and their political subdivisions. The Congress recognizes that the organizational structure established jointly by the Federal government and the States and their political subdivisions for emergency preparedness purposes can be effectively utilized to provide relief and assistance to people in areas of the United States struck by a hazard. The Federal government shall provide necessary direction, coordination, and guidance, and shall provide necessary assistance, as authorized in this title so that a comprehensive emergency preparedness system exists for all hazards.
Administration of Title (42 U.S.C. § 5195b)
§ 603. This title shall be carried out by the Director of the Federal Emergency Management Agency.

(42 U.S.C. § 5156)
§ 313. The President shall establish comprehensive standards which shall be used to assess the efficiency and effectiveness of Federal major disaster and emergency assistance programs administered under this Act.; The President shall conduct annual reviews of the activities of Federal agencies and State and local governments in major disaster and emergency preparedness and in providing major disaster and emergency assistance in order to assure maximum coordination and effectiveness of such programs and consistency in policies for reimbursement of States under this Act.
[National Dam Safety Program Act , 33 U.S.C. 467]
2-103. The Director shall be responsible for the coordination of efforts to promote dam safety, for the coordination of natural and nuclear disaster warning systems, and for the coordination of preparedness and planning to reduce the consequences of major terrorist incidents. § 611(d) Communications and Warnings.

The Director may make appropriate provision for necessary emergncy preparedness communications and for dissemination of warnings to the civilian population of a hazard.

(42 U.S.C.§ 5132)
§ 202. (a) The President shall insure that all appropriate Federal agencies are prepared to issue warnings of disasters to State and local officials.

(b) The President shall direct appropriate Federal agencies to provide technical assistance to State and local governments to insure that timely and effective disaster warning is provided.

(c) The President is authorized to utilize or to make available to Federal, State, and local agencies the facilities of the civil defense communications system established and maintained pursuant to § 611(c) of the Act [42 U.S.C. § 5196(c)], or any other Federal communication system for the purpose of providing warning to governmental authorities and the civilian population in areas endangered by disasters.

(d) The President is authorized to enter into agreements with the officers or agents of any private or commercial communications systems who volunteer the use of their systems on a reimbursable or nonreimbursable basis for the purpose of providing warning to governmental authorities and the civilian population endangered by disasters.
2-104. The Director shall represent the President in working with State and local governments and private sector to stimulate vigorous participation in civil emergency preparedness, mitigation, response, and recovery programs. TITLE II ---- DISASTER PREPAREDNESS ASSISTANCE


(42 U.S.C. § 5131)

§ 201. (a)  The President is authorized to establish a program of disaster preparedness that utilizes services of all appropriate agencies and includes ----
         (1) preparation of disaster preparedness plans for mitigation, warning, emergency operations, rehabilitation, and recovery;
         (2) training and exercises;
         (3) post disaster critiques and evaluations;
         (4) annual review of programs;
         (5) coordination of Federal, State, and local preparedness programs;

         (6) application of science and technology;
         (7) research.
(b)  The President shall provide technical assistance to the States in developing comprehensive plans and practicable programs for preparation against disasters, including hazard reduction, avoidance, and mitigation, for assistance to individuals, businesses, and State and local governments following such disasters; and for recovery of damaged or destroyed public and private facilities.

(c)  Upon application by a State, the President is authorized to make grants not to exceed in the aggregate to such State $250,000, for the development of plans, programs, and capabilities for disaster preparedness and prevention.  Such grants shall be applied for within one year from May 22, 1974.  Any State desiring financial assistance under this section shall designate or create an agency to plan and administer such a disaster preparedness program, and shall, through such agency, submit a State plan to the President, which shall ----

         (1) set forth a comprehensive and detailed State program for preparation against and assistance following, emergencies, and major disasters, including provisions for assistance to individuals, businesses, and local governments; and

        (2) include provisions for appointments and training of appropriate staffs, formulation of necessary regulations and procedures and conduct of required exercises.

(d)  The President is authorized to make grants not to exceed 50 percent of the cost of improving, maintaining and updating State disaster assistance plans including evaluation of natural hazards and development of the programs and actions required to mitigate such hazards, except that no such grant shall exceed $50,000 per annum to any State.
2-105. The Director shall provide an annual report to the President for subsequent transmittal to the Congress on the functions of the Federal Emergency Management Agency.  The report shall assess the current overall state of effectiveness of Federal civil defense and civil emergency functions, organizations, resources, and systems and recommend measures to be taken to improve planning, management, assistance, and relief by all levels of government, the private sector, and volunteer organizations. Annual Report to Congress (42 U.S.C. § 5197c)
§ 624.  The Director shall annually submit a written report to the President and Congress covering expenditures, contributions, work, and accomplishments of the Federal Emergency Management Agency pursuant to this title, accompanied by such recommendations as the Director considers appropriate.
2-201.  In executing the functions under this Order, the Director shall develop policies which provide that all civil defense and civil emergency functions, resources, and systems of Executive agencies are:
(a) founded on the use of existing organizations, resources, and systems to the maximum extent practicable;
(b) integrated effectively with organizations, resources, and programs of State and local governments, the private sector and volunteer organizations; and
(c) developed, tested and utilized to prepare for, mitigate, respond to and recover from the effects on the population of all forms of emergencies.
Use of Existing Facilities (42 U.S.C. § 5197b)

§ 623. Use of Existing Facilities.

In performing duties under this title, the Director ----

         (1) shall cooperate with the various departments and agencies of the Federal government;

         (2) shall use, to the maximum extent, the existing facilities and resources of the Federal government and, with their consent, the facilities and resources of the States and political subdivisions thereof, and of other organizations and agencies; and
            (3) shall refrain from engaging in any form of activity which would duplicate or parallel activity of any other Federal department or agency unless the Director, with the written approval of the President, shall determine that such duplication is necessary to accomplish the purposes of this title.
2-202. Assignments of civil emergency functions shall, whenever possible, be based on extensions (under emergency conditions) of the regular missions of the Executive agencies. § 404(c).  Utilization of Government resources and facilities.  In performing his functions, the Director of the Federal Emergency Management Agency shall utilize to the maximum extent the facilities and resources of the departments and agencies of the Government. (50 U.S.C.§ 404)
2-203. For purposes of this Order, "civil emergency" means accidental, natural, man-caused, or wartime emergency or threat thereof, which causes or may cause substantial injury or harm to the population or substantial damage to or loss of property. § 602.       (A) Definitions.  For purposes of this title only:

(1) Hazard.

The term “hazard” means an emergency or disaster resulting from-

         (A) a natural disaster; or         

         (B) an accidental or man-caused event.

(2) Natural Disaster.
The term “natural disaster” means any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, drought, fire, or other catastrophe in any part of the United States which causes, or which may cause, substantial damage or injury to civilian property or persons.
2-204. In order that civil defense planning continues to be fully compatible with the Nation’s overall strategic policy, and in order to maintain an effective link between strategic nuclear planning and nuclear attack preparedness planning, the development of civil defense policies and programs by the Director of the Federal Emergency Management Agency shall be subject to oversight by the Secretary of Defense and the National Security Council. § 404(b) Functions.  It shall be the function of the Director of the Federal Emergency Management Agency to advise the President concerning the coordination of military, industrial and civilian mobilization, including--

         (1) policies concerning industrial and civilian mobilization in order to assure the most effective mobilization and maximum utilization of the Nation’s manpower in the event of war;

         (2) programs for the effective use in time or war of the Nation’s natural and industrial resources for military and civilian needs, for the maintenance and stabilization of the civilian economy in time of war, and for the adjustment of such economy to war needs and conditions;

         (3) policies for unifying, in time of war, the activities of Federal agencies and departments engaged in or concerned with production, procurement, distribution, or transportation of military or civilian supplies, materials, and products;

         (4) the relationship between potential supplies of, and potential requirements for, manpower, resources, and productive facilities in time of war;

         (5) policies for establishing adequate reserves of strategic and critical material, and for the conservation of these reserves;

         (6) the strategic relocation of industries, services, government, and economic activities, the continuous operation of which is essential to the Nation’s security;
50 U.S.C. § 404(b)
2-205. To the extent authorized by law and within available resources, the Secretary of Defense shall provide the Director of the Federal Emergency Management Agency with support for civil defense programs in the areas of program development and administration, technical support, research, communications, transportation, intelligence, and emergency operations.
2-206. All Executive agencies shall cooperate with and assist the Director in the performance of his functions.

The emphasis in the above extract of E.O. 12148 is supplied and is not in the original. Note the transition provisions of 2-301 and 2-302 as well as the entire remaining provisions of E.O. 12148 are of  no longer of interpretive importance due to intervening legal developments including the enactment of legislation and signature of later Executive Orders. The only other current legal effect of E.O.12148 is to provide a Presidential delegation of those Titles (all Titles other than VI) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, and sections of  the Earthquake Hazards Reduction Act of 1977, as amended, not directly vested in the Director by the law. Because of the creation of the Department of Homeland Security all delegations to FEMA from the President are first to the Secretary DHS who much redelegate his/her authority to the FEMA Administrator. Since the enactment and effective date of PKEMA of 2006, effective March 31, 2007, this editor knows of any current Secretarial level delegations to the FEMA Administrator, and certainly none published in the Federal Register or in accordance with the Administrative Procedures Act of 1947. The Executive order is also the only specific reference to the consequences of terrorism role (see House Document 105-29). The Executive orders that amended E.O. 12148 include EO’s 12155, 12156, 12319,12356,12379,12381, and all those implementing the creation of the Department of Homeland Security.

Why is Executive Order 12148 so important to FEMA role in civil domestic crisis response and recovery and the chain of command? First, FEMA never had an explicit statutory charter outside of the provisions of Reorganization Act No. 3 of 1978. Thus, the implementing Executive Orders, primarily E.O. 12127 and E.O. 12 148 became its charter. Note that Reorganization Plans do have the force of statute but Reorganization Plan No. 3 has been superseded by operation of law, specifically the Homeland Security Act of 2002.

So with all the discussion of the “new” FEMA post-PKEMA of 2006 (meaning post March 31, 2007) has FEMA really been reconstituted as the organization with the same clout as prior to DHS.  My answer would be no way. Not only is FEMA subordinated to DHS chain of command but it no longer has the direct charter of E.O. 12148 but only delegated authority pursuant to the Stafford Act and other statutes. All of which necessarily pass through the Secretary DHS.

And of course I have concluded that in fact, and in law, and despite its continued citation by FEMA and DHS, E.O. 12148 is no longer effective as a charter to FEMA and should be repealed as helping to mislead the American people as much as the administrative adoption of the FEMA name in August 2003 as a branding strategy not a legal renaming of the Emergency Preparedness and Response Director that contained elements of the pre-DHS FEMA prior to March 1, 2003, when DHS started its operations.

My arguments over the issue of whether FEMA should be in or out of DHS rely in part on the notion that the existence of a FEMA is not important. What is important is that a civil domestic crisis response and recovery system exists and a civil chain of command for catastrophes.
More will be posted on this later. Note also that FEMA no longer is in direct daily contact with the NSC and its combined NSC and HSC staff, known now as the NSS (national security staff). The vagueness of the arrangements on the above issues and policies is positively scary given that catastrophes do happen.