Erosion of FEMA's Legal Authority

Now as everyone knows who works with FEMA, that Executive Branch organization is essentially a bureau within the Department of Homeland Security. Several past Secretaries of DHS have stated that they spent more time on FEMA issues than any other component within DHS that they managed and administered. Some organizations within DHS of course are largely independent such as the US Coast Guard and almost no DHS management oversight exists for that entity.

So let's first take a look back at February 28th,2003 the last day of FEMA's status as an independent Executive Branch agency. Ignoring for the purposes of this blog statutory assignments directly to the Director FEMA on that date, and noting that they were few and far between, I think it is useful to review the principal Executive Orders delegating authority to FEMA on that date. Here is the list:


Presidential Executive Orders Delegating Authority to FEMA

Executive Order 11988 of May 24, 1977, as amended, Floodplain Management, 3 CFR, 1977 Comp., p. 117, 42 U.S.C. §4321 note p.191. (See 44 CFR Part 9)

Executive Order 12127 of March 31, 1979, Federal Emergency Management Agency, 3 CFR, 1979 Comp., p. 376. (Implements Reorg. Plan No. 3 of 1978)

Executive Order 12148 of July 20, 1979, as amended, Federal emergency management, 3 CFR, 1979 Comp., p. 412. (Implements Reorg. Plan No. 3 of 1978)

Executive Order 12241 of September 29, 1980, National Contingency Plan [Radiological Emergencies], 3 CFR, 1980 Comp., p. 282. (Note-Source of FRERP).

Executive Order 12472 of April 3, 1984, Assignment of national security and emergency preparedness telecommunications functions, 3 CFR, 1984 Comp., p.193. (See 47 CFR Part 201)

Executive Order 12580 of January 23, 1987, as amended, Superfund Implementation, 3 CFR, 1987 Comp., p. 193 (Note: Amended by E.O. 12777 of October 18, 1991, and further amended by E.O. 13016 of August 28, 1996). (See 40 CFR Part 300).

Executive Order 12656 of November 18, 1988, Assignment of Emergency Preparedness Responsibilities, 3 CFR, 1988 Comp., p. 585. (See 47 CFR Part 201)

Executive Order 12657 of November 18, 1988, Federal Emergency Management Agency Assistance in Emergency Preparedness Planning at Commercial Nuclear Power Plants, 3 CFR, 1988 Comp., p. 611. (See 44 CFR Part 352)

Executive Order 12673 of March 23, 1989, Delegation of Disaster Relief and Emergency Assistance Functions, 3 CFR, 1989 Comp., p. 309. (See 44 CFR Part 206)

Executive Order 12699 of January 5, 1990, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction, 3 CFR, 1990 Comp., p. 269.

Executive Order 12742 of January 8, 1991, National Security Industrial Responsiveness, 3 CFR, 1991 Comp., p. 309.

Executive Order 12919 of June 3, 1994, National Defense Industrial Resources Preparedness, 3 CFR, 1994 Comp., p. 901. (See 15 CFR Part 700, 44 CFR Parts 321- 336)

Executive Order 12941 of December 1, 1994, Seismic Safety of Existing Federally Owned or Leased Building, 3 CFR, 1994 Comp. , p. 955.



[Executive Orders serve to delegate legal authority, provide legal interpretation, and provide policy guidance. When issued pursuant to law they have the force and effect of federal law.]

Several newly minted political General Counsels of FEMA admitted to me that they were not familiar with authority delegated to an agency through Executive Orders. And the erosion of the importance has occurred pretty general in last several decades. Why is that? First they always avoid being tied to any funding stream. That is left to later in time budget submissions by the department or agency impacted. And yes some really really important stuff gets put in Executive Orders. The second reason is that except where the order clearly is one of internal management of the subject within the Executive Branch and they are not based on a specific statute their authority is quite limited. This is in fact one area where the Imperial Presidency has eroded. Oddly it is difficult without good research skills to understand exactly what Executive Orders are still in effect or how they have been amended. Over 20 years ago, the National Archive and Records Administration produced a book of Executive Orders still in effect as of the date of publication in 1989 and as currently amended. That document should be updated and made virtual. It also attempted to index to some degree extant Executive Orders.
That stated where does FEMA stand today in delegated authority it previously held?
Well first of all several of the orders listed above have been formally amended to interpose the Secretary DHS between the President and FEMA which is as it should be. But some of those assignments have drifted off elsewhere in DHS and no longer are housed in FEMA. Since no really accessible and accurate public document exists indicating delegations to subordinates of the Secretary DHS exists this is left to be figured out by interested persons. I still have not been able to do so.
But it now appears that Executive Order 12656 will be repealed shortly by the Obama Administration and no replacement will be made. This Executive Order was never self-implementing but it did provide a useful quick listing of lead and support roles that were the assignment of key Executive Branch entities although seemingly limited to National Security Emergencies. A term that does appear elsewhere but was of extreme importance in this order. What we have learned since the Jackson Hearing on Presidential autority in the mid-70's is that President's no longer want to have their hands tied by declarations of various kinds of emergencies because it limits their flexibility. It also keeps interested citizens from finding out what its government is up to at any given moment.

Anyhow expecting repeal of at least one Executive Order that assigned some responsibity to FEMA under President Ronald Reagan. Perhaps another chip in the facade of FEMA, or perhaps even an erosion of its underpinnings.
As we approach the end of the first decade of DHS a report card on each of its components that joined on March 1, 2003 would be interesting to me. Oddly I would argue that both TSA and the Coast Guard and all the border security agencies have been badly compromised capability wise by DHS and probably FEMA is the biggest loser in being rolled into DHS. Perhaps this evolution and diminished capabilty is a valid management choice, but given lack of meanngful oversight of DHS by Congress [despite DHS complaints] no more could have been expected. Time will tell whether DHS management choices were correct ones.

Disaster Warnings

There are huge technical differences between the terms "Warning" and "Alerting" and "notification" and "mobilization"! Largely based on the seminal research of Dr. Dennis Mileti, PhD in Sociology and largely paid for by the Department of Defense and the Nuclear Power Industry, this somewhat dated research is still relevant until superseded by more current research will will have to encompass WEB 2.0 and the new social media. After 9/11/2001 however based on assessments of need a PUBLIC Private Partnership was funded by the US government to develop a national warning strategy. That strategy is posted on the baseline document section of this blog. It should be required reading for all in Homeland Security and Emergency Management. There is also an implementing Executive Order!

Executive Order 13407 of June 26, 2006, Public Alert and Warning System; published at 71 Fed. Reg. pp 36975-6, on Wednesday, June 28, 2006.

The Executive Order delegates all of its authority directly to the Secretary DHS and this blogger is not sure how it has been redelegated within DHS. Section 5 of the order is quite interesting. It reads:
Se.5. Amendment, Revocation, and Transition.

(a)Section 3(b)(4) of Executive Order 12472 of April 3, 1984, as amended, is further amended by striking "Emergency Broadcast System" and inserting in lieu thereof "Emergency Alert System".

(b) Not later than 120 days after the date of this order, the Secretary of Homeland Security, after consultation with the Assistant to the President for Homeland Security and Counterrorism {Fran Townsend at time],shall issue guidance under section 2(c) of this order that shall address the subject matter of the presidential memorandum of September 15, 1995, for the Director, Federal Emergency Management Agency, on Presidential Communications with the General Public During Periods of National Emergency, and upon issuance of such guidance such memorandum is revoked.

(c) The Secretary of Homeland Security shall ensure an orderly and effective transition, without loss of capability, from alert and warning systems available as of the date of this order to the public alert and warning system for which this order provides."

In the meantime a quick survey of DHS/FEMA obligations on warning is useful. A mandate that used to be to FEMA alone is now unclear do to lack of delegations being published by the Secretary DHS. So here goes:

LEGAL REFERENCES TO WARNING, THREATS, AND PUBLIC INFORMATION

IN THE ROBERT T. STAFFORD ACT DISASTER RELIEF AND EMERGENCY ASSISTANCE ACT (CODIFIED AS CHAPTER 68 OF TITLE 42 OF THE U.S. CODE)

[It should be noted that the Stafford Act, Public Law 100-707, amended in part, superseded in part and supplemented in part the Disaster Relief Act of 1974 (Public Law 93-288); all of the above codified at 42 USC Sections 5121 and following]

SUBCHAPTER II -- DISASTER PREPAREDNESS ASSISTANCE DISASTER WARNINGS
(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(d) of the Act [42 U.S.C. §5196(d)], 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.

SUBCHAPTER IV -- MAJOR DISASTER ASSISTANCE PROGRAMS GENERAL FEDERAL ASSISTANCE
(42 U.S.C. §5170a)
§402. In any major disaster, the President may --- . . . . . .

(3) provide technical and advisory assistance to affected State and local government for - 

(B) issuance of warnings of risks of hazards; . . .

ESSENTIAL ASSISTANCE
42 U.S.C. §5170b)

§403 (a) In General. Federal agencies may on the direction of the President, provide assistance to meeting immediate threats to life and property resulting from a major disaster, as follows:

(3) Work and Services to Save Lives and Protect property. Performing on public or private lands or waters any work or services essential to saving lives and protecting and preserving property or public health and safety, including ---

(F) warning of further risks and hazards;

(G) dissemination of public information and assistance regarding health and safety measures;

(H) provision of technical advice to State and local governments on disaster management and control; and

(I) reduction of immediate threats to life, property, and public health and safety.

EMERGENCY COMMUNICATIONS
(42 U.S.C. §5185)
§418. The President is authorized during, or in anticipation of, an emergency or major disaster to establish temporary communications systems and to make such communications available to State and local government officials and other persons as he deems appropriate.

TITLE VI -- EMERGENCY PREPAREDNESS
SUBTITLE A -- POWERS AND DUTIES

§611(d) Communications and Warnings.

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

§611(g) Public Dissemination of Emergency Preparedness Information.

The Director may publicly disseminate appropriate emergency preparedness information by all appropriate means.

FEMA, STAFFORD ACT, AND LOYALTY OATHS

Okay you thought Loyalty Oaths went out with the McCarthy era. Surprise-- Section 623(d) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act contains a non-waivable Loyalty Oath provision not just for federal employees but also STATE and LOCAL employees participating in disaster operations. Where did this requirement come from? Amazingly it was contained in the old Federal Civil Defense Act of 1950, Public Law 920 of the 81st Congress. As early as 1955 the Department of Justice issued a formal letter based on court tests of this requirement in other contexts to the Defense Civil Preparedness Agency created in 1972 as the successor organization to all predecessor civil defense agencies. And it was located in the DOD but at that time changed reporting from the Department of the Army and Secretary of the Army to the Secretary of Defense. This of course was in part an expression of lack of interest in the Department of the Army from being involved in various civil defense controversies although oddly the NIXON/KISSINGER duo had some interest in civil defense even conducting and developing a PRM of that effort.

Okay so how did it [the Loyalty Oath] end up in the Robert T. Stafford Act? As liason to the hill for technical support on repeal of the CDA and incorporation in part of the Stafford Act, I gave the Chief Counsel of the House Armed Services Committee the Chief Counsel of the Senate Armed Services Committee a package containing the DOJ non-enforcement memo and several court cases asking that in any transfer this obsolete provision be repealed. After the fact the Chief Counsel in the House said that leaving it out was too controversial. Note this is in 1994 when Public Law 103-337 repealed Public Law 920 of the 81st Congress as then amended incorporating some portions into the Stafford Act.

Note that the history of the Loyalty Oath and its application in full fury to the STATE and LOCAL governments was largely through the CDA!

So I just thought I would mention this in my blog since all GENERAL Counsels of FEMA, Chief Counsel of FEMA, and their legislative and program attorneys have been notified by me of this history, and if not before because of personnel turnover again by this blog post.

What is interesting of course is that DOJ should have recommended veto of Public Law 103-337 based on this UnConstitutional provision. I wish I could write a book on how the American people have been more than occassionally mistreated by their DOJ but don't have the time.

Again hoping someone is listening.

Is FEMA the Nation's Safety Net?

In the January 2009 Natural Hazards Observer I wrote a letter to the editor about the non-declaration of an emergency or disaster under the then current disaster legislation known by some as the Robert T. Stafford Disaster Relief and Emergency Assistance Act. That statute (Public Law 100-707) amended in part, supplemented in part, and repealed in part the Disaster Relief Act of 1974 (Public Law 93-288. The letter explained some history of that non-declaration. What it did not contain was the document that was given to the Senate Appropriations Committee explaining the non-declaration.
That piece of the puzzle is avail now from this blogger.

We now after almost 2 months again have a non-declaration situation in the BP oil spill situation. It appears that the rationale for the non-declaration in Exxon Valdez is now being used by this administration to argue that the plan published in the CFR at 40 CFR Part 300 is adequate. Whether or not the escrow fund is ever created now appears 24 hours after its announcement to be in some doubt. BP wants a firm cap at $20 B and the administration argues that is only a starting point. So stay tuned.
What is important is the exercise of discretion by the President not to declare a Stafford Act disaster or emergency. Could he yes? Will he? Not sure! But the non-declaration so far has in fact yielded an important policy issue that has not yet been discussed until this blog post!

First, if the rationale of the non-declaration in Exxon Valdez is used several consequences follow: First, legal enforcement of civil and criminal penalties against those who caused the incident/event must be pursued not just diligently but first before any relief to citizens of the US by its government. This is ridiculous for the following reasons: First that process is slow and cumbersome. Second, a declaration of disaster or emergency exonerates no one from their other legal responsiblity for damages or wrongdoing.
Second: If the rationale provided to the Senate Committee informally by the Office of Congressional Relations in FEMA after the appropriations hearing which covered Exxon Valdez then FEMA should always include a detailed analysis in its declaration recommendations to the President a complete analysis of all other applicable law with respect to any given incident/event. Well with an Office of Chief Counsel of 70 people including paraglegals, FEMA is not up to the this questionable practice. But hey the Department of Justice should be more than up to it.

So before they pain and suffering and losses of the American people are ignored like they were at EXXON VALDEZ and now in the BP Oil Spill then let's have the Office of Legal Counsel at DOJ prepare a comprehensive list of all statutory schemes that are so pervasive and comprehensive that should they fail in their protection of public health and saftety they should still result in the PRESIDENT not declaring a disaster or emergency.

We need to know that now not later as the interested public. Need an example? What is the interplay of the Stafford Act and the Price-Anderson Act concerning nuclear power? This question has never received a ruling from the Department of Justice despite in formal testimony before Congress the Commission On Federal Response to a Catastrophic Nuclear Accident declared that the Stafford Act had NO applicability to such an event. Then in an effort to avert the logical consequences of this testimony the NRC Commisssion staff, later approved by the full Commission, issued a document NUREG 1437 [sic] arguing that the Stafford Act fully applied to such a castrophic event. This was published with the signature of a low-level FEMA civil servant and NO legal review was sought.

So before the next Core-Melt Accident (the last was TMI) let's pin this down. Good luck OLC but time you earned you pay when not trying to avoid due process for US citizens that are rightfully labeled terrorists.

The Independent FEMA's Office of the General Counsel

From April 1, 1979 until March 1, 2003, the independent Executive Branch agency FEMA had its own Office of the General Counsel. It was headed by a number of personnel including George Jett, Spence Perry, George Watson, Katherine Newman, Patricia Gormley, John Carey, Ernest Abbott, and at the end of its days by Michael Brown and David Trissel. Some of these individuals were in an acting capacity. The position of the GC was career reserved until the administration of George H.W. Bush. None of these individuals were appointed by the President and confirmed by the Senate. Five were Presidentially appointed and a number were non-career SES. This office was underfunded and understaffed throughout my time in FEMA from 1979-1999. I could rank these people in overall competence but will not because each had specific strengths and weaknesses which sometimes became critical to damaging or helping FEMA survive in the milieu of bureacratic infighting in Washington. I tried, sometimes unsuccessfully, to keep the focus of the OFFICE on FEMA programs, functions, and activities and their successful implementation or rejection of challenges to them. Why me? Will in a way I helped create FEMA even though relatively junior in the Civil Service heirarchy. In 1977 President Carter created a Presidential Reorganization Project that led to the creation of FEMA and I attened periodic meetings of lawyers working on issues related to that reorganization and after April 1, 1979 until September 10, 1979, actually headed the HUD legal team that became a formal part of the already established OGC operations of FEMA but not administratively centralized. This did occur finally at FEMA's I street, N.W. location after FEMA lost out in a battle for the Winder Building on 17th Street (a building that originally housed the telegraph offices of the Union Army where President Lincoln read telegraphed messages throughout the Civil War).
My point in stating these facts is not just history but also to provide a brief intro to critical legal and administrative decisions that impacted FEMA throughout its history as an independent agency. Over time several will be discussed in this blog.
One of the key decisions supported by all of the individuals who ran FEMA OGC over the years was that the Office would never SELF-INITIATE a formal legal opinion to a client unless asked for that opinion in writing. There are arguments both as to the wisdom and stupidity of this policy but that is not my purpose here. In fact, IMO Congress should draft an statute like the CFO and CIO statutes that deals with the position and responsibilty of Department and Agency General Counsels. FEMA now has an Office of the Chief Counsel that reports to the General Counsel of DHS.
In the fall of 1998 I prepared a short note to the General Counsel and staff of OGC that dealt with programmatic legal issues. The text follows and you can draw your own conclusions:

"Next spring on April 1, 1999, FEMA completes its first 20 years as a federal agency. No General Counsel of FEMA has addressed, and more importantly no FEMA official has requested the General Counsel to address, a number of issues that over the years have impacted [IMO] programs and operations of what is now the RESPONSE AND RECOVERY Directorate portfolio. Perhaps, between now and next April, these issues could either be addressed in legal opinions, 1 or 2 per month, or a determination be made that only a legislative solution exists. [And of course this did NOT happen]
LEGAL ISSUES IMPACTING PROGRAM OPERATIONS

The following list briefly discusses legal issues not comprehensively addressed in written OGC opinions presently impacting on program operations in a manner that could prevent efficient and effective implementation of current FEMA policies.
KEY ISSUES FOR RESPONSE AND RECOVERY DIRECTORATE

1. What restrictions exist on the Director's authority to pre-deploy FEMA personnel or mission assign other departments and agencies prior to the declaration of a disaster or emergency?

2. What authority does FEMA have to directly respond to events that are disasters or emergencies where STATE or local government is overwhelmed or non-operative?

3. What is the Director's discretion to provide non-financial assistance to STATE and local governments during disasters and emergencies?

4. What legal limits exist on the Director's furnishing financial assistance to the federal, STATE, and/or local law enforcement community?

5. What training and protective gear must be provided under OSHA to FEMA personnel prior to their employment in potentially contaminated areas?

6. Is FEMA excluded by any federal, state, or local law from providing humanitarian assistance, including financial, in any particular type of class of events that might otherwise be considered a disaster or emergency?

7. What is the inter-play between the Robert T. Stafford Act and the Price-Anderson Act?

8. Whate are the specific sections of the statutes and executive orders delegating Presidential authority that provide response and recovery authority?

9. Did the repeal of the Federal Civil Defense Act of 1950 (Public Law 920 of the 81st Congress) have any direct legal impact on RESPONSE AND RECOVERY programs, functins, or activities or operations?

10. Does new Title V of the Robert T. Stafford Act give the Director any new authority that is potentially applicable to the RESPONSE AND RECOVERY DIRECTORATE programs, functions, and authorities?

11. Should other departments and/or agencies decline or fail to carry out their statutory or executive order roles in emergency preparedness, mitigation, response or recovery is FEMA legally the saftey net?

12. Are there any present legal gaps in the Director's authority that could cripple (i.e. make ineffective or inefficient) the operations of FEMA in a disaster or emergency?

13. Do any of the statutes vesting authority in the Director or Response and Recovery Directorate by delegation so far not utilized in planning, preparedness, mitigiation, response or recovery?"

It would be interesting to know if any of the topics listed above could be considered addressed even partially over a decade later. One might add of course what authority exists elsewhere in DHS to assist FEMA in its disaster response and recovery operations.

A second policy of FEMA's independent OGC that was effectively in force during my service and modified only by GC Pat Gormley was the policy of never identifying other legal authorities that might be of assistance to FEMA in its programs, functions, and activities when the client requested an opinion under a specific statute! This policy and its implications will be discussed in a later post. Ah yes stovepipes exist even in the legal world of the federal government.

PKEMA of 2006

I have been having an ongoing debate with friends in high places and low places as to whether PKEMA actually granted much brand NEW legal authority to FEMA when enacted. So I thought I would have some fun. PKEMA of 2006 of course was not an entirely independent statute but buried in Title VI-NATIONAL EMERGENCY MANAGEMENT of Public Law 109-295, enacted October 4, 2006. So I thought I would review what FEMA itself thought of the new statutory scheme an now provide what was a September 26, 2006 predecisional document discussing PKEMA of 2006. I will let the readers of this blog decide on their own but my informal estimate is that almost 75% of the statutory mandates, which in fact often just require FEMA to exericise what it had discretion to do all along, and almost always issue a report or something similiar, have NOT been met and in many cases no evidence exists of their even being started. Somewhate shocking is both the DHS/OIG and GAO have tentatively reviewed portions of this statute and made recommendations and suggestions but have not actually stated that NO PROGRESS was found on these mandates and listed those they believe no progress made. Some are obvious and probably will blog about them at some time. Let's take an example of the three dedicated National Strike TEAMS trained and ready for all hazards. Well hoping they have oil spill expertise.

Anyhow for what it is worth this is how FEMA itself described the new statute:

POST-KATRINA EMERGENCY MANAGEMENT REFORM ACT OF 2006
SECTIONAL SUMMARY

TITLE VI—National Emergency Management

Sec. 601. Short Title. This Act may be cited as the “Post-Katrina Emergency Management Reform Act of 2006”.

Sec. 602. Definitions. Creates new definitions for “appropriate committees of Congress”, “catastrophic incident”, “emergency management”, “emergency response provider”, “National Incident Management System”, “National Response Plan” and “surge capacity”. “Emergency,” “major disaster” and “Federal Coordinating Officer” have the same meanings that they do under the Stafford Act.

Subtitle A —Federal Emergency Management Agency.

Section 611. Amends Title V of the Homeland Security Act. The following section references refer to that Act.

Sec. 501. Definitions. Defines “Administrator” as the Administrator of FEMA. Creates new definitions for “catastrophic incident”, “emergency communications capabilities”, “interoperable”, “National Incident Management System”, “National Response Plan” and “surge capacity.”

Sec. 503. Federal Emergency Management Agency. Re-designated section 503 “creates” the Federal Emergency Management Agency and adds new mission and responsibilities to the Administrator of FEMA. The Administrator’s mission is to reduce the loss of life and property and protect the Nation from all hazards, by leading and supporting the Nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation. The Administrator is responsible for preparing for, protecting against, responding to, recovering from and mitigating against the risk of a natural disaster, act of terrorism, or other man-made disaster. The Administrator shall partner with State, local governments and other emergency providers to build a national system of emergency management. The Administrator shall integrate the Agency’s emergency preparedness, protection, response, recovery, and mitigation responsibilities to confront the challenges of a natural disaster, act of terrorism or other man made disaster. Finally, the Administrator shall coordinate the implementation of risk-based, all-hazards strategy.

Section 503(c) states that the Administrator shall be appointed by the President and confirmed by the Senate and shall be an individual with a demonstrated ability in and knowledge of emergency management and homeland security, and at least 5 years of executive leadership and management experience. The Administrator shall report directly to the Secretary. The Administrator is the principal advisor to the President, Homeland Security Council, and the Secretary for all matters relating to emergency management in the United States. Advice can be provided on request to any of these entities. After informing the Secretary, the Administrator can make recommendations to Congress relating to emergency management. The President may designate the Administrator to serve as a member of the Cabinet in the event of natural disasters, acts of terrorism, or other man-made disasters. Nothing in the above is to be construed as affecting the authority of the Secretary under the Homeland Security Act.

More responsibilities are added to the Administrator’s duties in section 504. The Administrator shall assist the President in carrying out functions of the Stafford Act, and carry out the mission to protect the Nation from all hazards by leading and supporting a risk-based, comprehensive emergency management system. The Administrator would also be responsible for supervising FEMA’s grant programs and administering the National Response Plan. The Administrator would also assist the President in carrying out the functions of the national preparedness goal and the national preparedness system.

Sec. 505. Functions Transferred. New section 505 transfers all of the functions, assets and personnel of FEMA and most of the Directorate of Preparedness (as both were constituted on June 1, 2006) to the “new” FEMA. The following functions, personnel, assets and authorities in the Preparedness Directorate shall not be transferred: The Office of Infrastructure Protection, the National Communications System, the National Cybersecurity Division, and the Office of the Chief Medical Officer.

Sec. 506. Preserving the Federal Emergency Management Agency. New section 506(a) mandates that the new agency shall be maintained as a distinct entity within the Department, and new section 506(b) states that section 872 of the Homeland Security Act shall not apply to the new agency including any function or organizational unit of the entity. Section 506(c) further limits the Secretary’s authority to change the responsibilities or functions of the new agency prohibiting the diversion of any asset, function, or mission to any other entity of the Department. Section 506(d) limits the Secretary’s authority to reprogram or transfer funds.

Sec. 507. Regional Offices. New section 507 establishes 10 Regional Offices within FEMA as identified by the Administrator. Each Regional Office shall be headed by a Regional Administrator, appointed by the Administrator, in consultation with State and local governments in the region. The Regional Administrators report directly to the Administrator and are to be SESs. Each Regional Administrator should have demonstrated ability in and knowledge of emergency management and homeland security, and the Administrator must consider the familiarity of each with the geographical area to which they are assigned.

Section 507(c) outlines the responsibilities of the Regional Administrators. They include ensuring effective and coordinated regional preparedness, response, recovery and mitigation activities for natural disasters and acts of terrorism. They are also responsible for coordinating the establishment of effective regional operable and interoperable emergency communications capabilities, staffing and overseeing 1 or more strike teams, and assisting in the development of regional capabilities needed for a national catastrophic response system. Each Regional Administrator is also required to undergo training, and participate in regional and national exercises.

Section 507(d) creates Area Offices for the Pacific, for the Caribbean, and requires the establishment of an Area Office in Alaska. All three are to be created as components in the appropriate Regional Office.

Section 507(e) creates a Regional Advisory Council, who shall advise the Regional Administrators on emergency management issues specific to their region and on unique characteristics of the region. A State, local, or tribal government may nominate official to serve as members of the Regional Advisory Council.

Section 507(f) provides each Regional Administrator authority over multi-agency Regional Office Strike Teams. Each strike team shall consist of a designated Federal coordinating officer, a defense coordinating officer, liaisons to other Federal agencies, individuals from agencies with primary responsibility for the functions of the National Response Plan, personnel trained in incident management, and others deemed appropriate. The members of the strike teams shall be based primarily in the region to which they are assigned. Each strike team shall be trained as a unit on a regular basis for preparedness. If the Administrator determines that the statutory authority under this subsection is inadequate for the preparedness and deployment of these strike teams, he shall submit a report to Congress regarding what authorities are needed.

Sec. 508. National Advisory Council. Within 60 days of enactment, the Secretary is required to establish an advisory body under section 871(a) of the Homeland Security Act to ensure effective coordination of Federal preparedness, protection, response, etc. The National Advisory Council advises the Administrator on emergency management, members shall be appointed by the Administrator, and they shall represent a geographic and substantive cross section including the private sector and nongovernmental organizations. The Administrator must coordinate the selection of health or emergency medical service professionals with the Secretaries of HHS and DOT. The Administrator shall designate 1 or more officers of the Federal Government to serve as ex officio members. After the initial appointments, each member serves a 3 year term. For the initial appointments, one third of the members are appointed for one year, and one third shall be appointed for two years. Most provisions of the Federal Advisory Committee Act apply.

Sec. 509. National Integration Center. New section 509 establishes a National Integration Center in the new entity. Through this Center, the Administrator shall ensure ongoing management and maintenance of the National Incident Management System, the National Response Plan, and any successor to such system or plan. The Center shall review and revise as appropriate the National Incident Management System and the National Response Plan.

Section 509(c) requires the Secretary, acting through the Administrator, to ensure that the National Response Plan provides for a clear chain of command to lead the Federal response to any natural disaster, act of terrorism, or other man-made disaster. Such chain of command should account for the Administrator’s role as the principal emergency management advisor to the President, Homeland Security Council, and Secretary. The Plan should also provide a role for the Federal Coordinating Office consistent with section 302(b) of the Stafford Act. The Principal Federal Official shall not direct or replace the incident command structure established at the incident, or have directive authority over the Senior Federal Law Enforcement Official, Federal Coordinating Officer, or other Federal and State officials.

Sec. 510. Credentialing and Typing. The Administrator shall enter into a MOU with the administrators of the Emergency Management Assistance Compact, State and local governments, emergency response providers, and their representatives to collaborate on developing standards for deployment capabilities, including credentialing of all personnel and typing of resources likely needed to respond to a natural disaster, act of terrorism, or other man-made disaster.

Sec. 511. The National Infrastructure Simulation and Analysis Center. This Center is created within the Department, and shall serve as a source of national expertise to address critical infrastructure protection and continuity through support for activities related to counterterrorism, threat assessment, risk mitigation, natural disasters, acts of terrorism, or other man-made disasters. The Center shall include modeling, simulation, and analysis of the system and assets comprising critical infrastructure. Each Federal agency and department with critical infrastructure responsibilities under HSPD-7 shall establish a formal relationship, including an agreement regarding information sharing, with the Center, through the Department.

Sec. 512. Evacuation Plans and Exercises. Grants made through the State Homeland Security Grant Program or Urban Area Security Initiative may be used to establish and maintain mass evacuation plans, prepare for the execution of such plans, and conduct exercises of such plans. Section 512(b) outlines what factors States or local governments should consider when developing a mass evacuation plan. Section 512(c) allows the Administrator to establish any guidelines, standards or requirements determined appropriate to administer this section and the Administrator shall make assistance available to assist hospitals, nursing homes, and other institutions that house individuals with special needs to establish plans that coordinate with State, local and tribal plans.

Sec. 513 Disability Coordinator. Amends the Homeland Security Act by adding a new section which calls for the appointment by the Administrator of a Disability Coordinator to ensure the needs of individuals with disabilities are being properly addressed in emergency preparedness and disaster relief. The Disability Coordinator reports directly to the Administrator. Section 513(b) outlines the Coordinator’s responsibilities.

Sec. 514. Department and Agency Officials. Subsection (a) authorizes the President to appoint no more than 4 Deputy Administrators of the new entity. This section also creates an Assistant Secretary for Cybersecurity and Telecommunications within the Department, as well as giving the Administrator of the US Fire Administration the rank equivalent to an assistant secretary of the Department.

Sec. 515. National Operations Center. New section 515 establishes the National Operations Center as the principal operations center for the Department, which shall provide “situational awareness” and a common operation picture for the entire Federal government, and for State and local governments as appropriate, in the event of a natural disaster, act of terrorism, or other man-made disaster. The National Operations Center shall also ensure that critical terrorism and disaster-related information reaches government decision makers.

Sec. 516. Chief Medical Officer. New section 516 creates a Chief Medical Officer in the Department, appointed by the President and confirmed by the Senate. The CMO shall have the primary responsibility within the Department for medical issues related to natural disasters, acts of terrorism, and other man-made disasters, including serving as the principal advisor to the Secretary and Administrator on medical and public health issues. The CMO serves as the primary contact point for medical and public health issues, as well as coordinating the biodefense activities of the Department. The CMO also will ensure internal and external coordination of all medical preparedness and response activities of the Department.

Section 612. Technical and Conforming Amendments. This section creates the Administrator as an Executive Level II rank position. Any reference in any law to the Director of FEMA shall be considered to refer to the Administrator of FEMA. The Undersecretary for Preparedness and the Director of FEMA shall take such actions as necessary to provide for an orderly implementation by March 31, 2007.

Section 613. National Weather Service. This section protects the authorities and activities of the National Weather Service.

Section 614. Effective Date. Most of the provisions take place on the date of enactment, but some are not effective until March 31, 2007. These provisions are the creation of the Federal Emergency Management Agency, the additional authority and responsibilities of the new entity, the transfer of functions, the creation of regional offices, the National Advisory Council, and the creation of Department Officials.


Subtitle B—Personnel Provisions
Chapter 1—Federal Emergency Management Personnel

Sec. 621. Workforce Development.

§ 10101. Definitions. “Agency”, “Administrator”, “Appropriate committee of Congress”, “Department” and “Surge Capacity Force” are defined.

§ 10102. Strategic Human Capital Plan. Requires the Administrator of FEMA to develop a human capital strategy to ensure that FEMA has a workforce of appropriate size and with appropriate skills and training to carry out FEMA’s mission. This strategy is to be developed no later than 6 months after the date of the enactment. No later than May 1, 2007 and May 1 of each year until 2012, the Director is required to submit an update of the strategic human capital plan.

§ 10103. Career Paths. Requires the Administrator to 1) ensure that appropriate career paths for personnel are identified, including the education, training, experience, and assignments necessary for career progression within the Agency and 2) publish information on the career paths described in requirement 1.

§10104. Recruitment bonuses. Authorizes the Administrator to pay individuals bonuses for recruitment purposes for difficult to fill positions in the absence of such a bonus. All bonuses are paid out in accordance with the completed Strategic Human Capital Plan. Authority terminates 5 years after enactment.

§10104. Retention bonuses. Authorizes the Administrator to pay, on a case-by-case basis, a bonus to an employee if 1) that employee is uniquely qualified and it is essential to retain that employee and 2) that employee is likely to leave FEMA. All bonuses are paid out in accordance with the completed Strategic Human Capital Plan. Authority terminates 5 years after enactment.

§ 10106. Quarterly Report on Vacancy Rate in Employee Positions. No later than 3 months after the enactment of this Act, the Administrator is required to submit to Congress a report on the vacancies in employee positions of the Agency. No later than 3 months after the initial report, the Administrator is required to update Congress on the progress of the Agency in filling vacant employee positions for 5 years.

Sec. 622. Establishment of Homeland Security Rotation Program at the Department of Homeland Security. Amends Title VIII of the Homeland Security Act of 2002 by inserting the following after section 843:

Sec. 844 – Homeland Security Rotation Program. No later than 180 days after the enacted of this section, the Secretary is required to establish the Homeland Security Rotation Program for employees of the Department. The Rotation Program shall use applicable best practices, including those from the Chief Human Capital Officers Council. No later than 180 days after the enactment of the Rotation Program, the Secretary is required to submit a report on the status of the Program to Congress.

Sec. 623. Homeland Security Education Program. Amends Title VIII of the Homeland Security Act of 2002 by inserting the following after Section 844:

Sec. 845 – Homeland Security Education Program. Acting through the Administrator, the Secretary is directed to establish a graduate-level Homeland Security Education Program in the National capital Region to provide educational opportunities to senior Federal officials and selected State and local official with homeland security and emergency management responsibilities. The Administrator will appoint an individual to administer the activities under this section.

Sec. 624. Surge Capacity Force. No later than 6 months after the enactment of this Act, the Administrator is required to prepare and submit to Congress a plan to establish and implement a Surge Capacity Force for deployment of individuals to natural disasters and to acts of terrorism and other man-made disasters, including catastrophic incidents. The Surge Capacity Force should be trained and deployed under the authorities set forth in the Stafford Act. If the existing authorities are inadequate, the Administrator must report to Congress the additional statutory authorities necessary.


Subtitle B, Chapter 2 –Emergency Management Capabilities

Sec. 631. State Catastrophic Incident Annex. This section amends section 613 of the Stafford Act to require State and local governments to include catastrophic incident annexes as part of their planning in order to be eligible to receive FEMA funds. The specific requirements for such catastrophic incident annexes are delineated.

Sec. 632. Evacuation Preparedness Technical Assistance. Requires the Administrator, in coordination with appropriate Federal Agencies to provide evacuation preparedness technical assistance to States and local governments, including technical assistance in the preparation of hurricane evacuation studies and evacuation plans assessing storm surge estimates, evacuation zones, evacuation clearance times, transportation capacity, and shelter capacity.

Sec. 633. Emergency Response Teams. Amends section 303 of the Stafford Act to add a new section b, which calls for the establishment of at least 3 national response teams and sufficient regional and other response teams as may be necessary. The Administrator must evaluate team readiness on a regular basis and report team readiness levels in the report required under section 652.

Sec. 634. National Urban Search and Rescue Response System. This section recognizes the Urban Search and Rescue Response System and makes specific appropriations.

Sec. 635. Metropolitan Medical Response Grant Program. The program is to continue to function as it did on June 1, 2006.

Sec. 636. Logistics. Requires the Administrator to develop an efficient, transparent, and flexible logistics system for procurement and delivery of goods and services necessary for an effective and timely response to major disasters, acts of terrorism, and other emergencies and for real-time visibility of items at each point throughout the logistics system.

Sec. 637. Prepositioned Equipment Program. The Administrator is required to establish a prepositioned equipment program to preposition standardized emergency equipment in selected geographic areas to sustain and replenish critical assets used by State and local governments in the wake of major disasters, acts of terrorism, and other emergencies. The Administrator must notify State and local officials 60 days prior to the date a location for the prepositioned equipment program will be closed. There should be at least 11 locations fully funded and operational at all times.

Sec. 638. Hurricane Katrina and Rita Recovery Offices. Prescribes the establishment of long-term recovery offices in the following States, if necessary: Mississippi, Louisiana, Alabama, and Texas. Each long-term recovery office shall be led by an executive director. The Administrator shall identify performance measures and provide incentives f the timely closeout of public assistance projects under sections 406 and 407 of the Stafford Act. Each recovery office shall terminate at the discretion of the Administrator.

Sec. 639. Basic Life Supporting First Aid and Education. Requires the Administrator to enter into agreements with organizations to provide funds to emergency response providers to provide education and training in life supporting first aid to children.

Sec. 640. Improvements to Information Technology Systems. Requires the Administrator, in coordination with the Chief Information Officer of DHS, to take appropriate measures to update and improve the information technology systems of the Agency, including NEMIS, and to send to Congress a report describing the implementation of this section within 270 days after the date of enactment of this Act.

Sec. 640a. Disclosure of Certain Information to Law Enforcement Agencies. In an evacuation, sheltering, or mass relocation, the Administrator may disclose information in any individual assistance database of the Department, in accordance with the Privacy Act, to any law enforcement agency of the Federal, State, or local government in order to identify illegal conduct or address public safety concerns, including sex offender notification laws.


Subtitle C – Comprehensive Emergency Preparedness System

Chapter 1—National Preparedness System

Sec. 641. Definitions. “Capability”, “Hazard”, “Mission Assignment”, “National Preparedness Goal”, “National Preparedness System”, “National Training Program”, “Operational Readiness”, “Performance Measure”, “Performance Metric”, and “Prevention” are defined.

Sec. 642. National Preparedness. Requires the President consistent with section 601 of the Stafford Act and title V of the Homeland Security Act of 2002 to develop a national preparedness goal and a national preparedness system.

Sec. 643. National Preparedness Goal. Requires the President, acting through the Administrator, to complete, revise, and update as necessary a national preparedness goal that defines the target level of preparedness to ensure the Nation’s ability to prevent, respond to, recover from, and mitigate against natural disasters, acts of terrorism, and other man-made disasters. The Goal should be as consistent as possible with NIMS and the NRP.

Sec. 644. Establishment of the National Preparedness System. Requires the President, acting through the Administrator, to establish a national preparedness system to enable the Nation to meet the national preparedness goal.

Sec. 645. National Planning Scenarios. Directs the Administrator to work with the heads of appropriate Federal agencies and the National Advisory Council, to develop planning scenarios to reflect the relative risk requirements presented by all hazards, including major disasters, acts of terrorism, and other emergencies in order to provide the foundation for the flexile and adaptive development of target capabilities and the identification of target capability levels to meet the national preparedness goal.

Sec. 646. Target Capabilities and Preparedness Priorities. Within 180 days of enactment, the Administrator must work with the heads of appropriate Federal agencies, including the National Council on Disability, and the National Advisory Council, to complete, revise, and update as necessary guidelines to define the risk-based target capabilities for Federal, State, and local government preparedness that enables the Nation to prevent, respond to, recover from, and mitigate against all hazards, including major disasters, acts of terrorism, and other emergencies. These guidelines are to be provided to Congress and the States, who are encouraged to distribute to local jurisdictions. The Director may provide support for the development of mutual aid agreements within states.

Sec. 647. Equipment and Training Standards. Directs the Administrator to work with the heads of appropriate Federal agencies and the National Advisory Council to support the development, promulgation, and updating, as necessary, national voluntary consensus standards for the performance, use, and validation of equipment used by Federal, State, and local governments and nongovernmental emergency response providers and national voluntary consensus standards for training.

Sec. 648. Training and Exercises. Requires within180 days of enactment, the Administrator must work with the heads of appropriate Federal agencies, including the National Council on Disability, and the National Advisory Council, to carry out a national training program to implement the national preparedness goal, national incident management system, national response plan, and other related plans and strategies. Within 180 days, the Administrator shall also work to carry out a national exercise program to test and evaluate (exercise) the goal, NIMS, NRP and other related plans. No less than biennially, there must be national level exercise to test and evaluate the capability of Federal, State, and local governments to respond detect, disrupt, and prevent threatened or actual catastrophic acts of terrorism, and to test the readiness of Federal, State, and local governments to respond and recover in a coordinated and unified manner to catastrophic incidents.

Sec. 649. Comprehensive Assessment System. The Administrator shall work with the National Council on Disability and the National Advisory Council to establish a comprehensive system to asses on an ongoing basis, the Nation’s prevention capabilities and overall preparedness, including operational readiness.

Sec. 650. Remedial Action Management Program. Requires the Administrator to work with the National Council on Disability and the National Advisory Council to establish a remedial action management program to look at events, training and exercises to identify lessons learned, generate after action reports, monitor the implementation of lessons learned,

Sec. 651. Federal Response Capability Inventory. Consistent with Title VI of the Stafford Act, requires the Administrator to accelerate the completion of the inventory of Federal response capabilities, to create a database of those capabilities, and to work with DOD to develop a list of functions that can be uses to provide civil support during disasters, acts of terrorism or other emergency.

Sec. 652. Reporting Requirements. Within 12 months of enactment and annually thereafter, the Administrator is required to work with the heads of appropriate Federal agencies to submit to the appropriate committees of Congress a report on the Nation’s level of preparedness for all hazards, including natural disaster, acts of terrorism, and other man-made disasters. Annually, the Administrator shall develop and submit to the appropriate committees of Congress an estimate of the resources necessary to respond to a catastrophic incident. Within 15 months of enactment and annually thereafter, a State receiving Federal assistance must submit a report to the Administrator on the State’s level of preparedness.


Sec. 653. Federal Preparedness. Requires the President to ensure and annually certify that each Federal agency with responsibility for responding under the NRP 1) have operational capability to meet the national preparedness goal 2) comply with NIMS 3) develop a deliberate planning capability and 4) develop, train and exercise rosters of response personnel to be deployed when the organization is called upon to support a Federal response. Requires the President to ensure that agencies have prescripted mission assignments.

Sec. 654. Use of Existing Resources. Requires the Administrator in establishing the national preparedness goal and national preparedness system to use existing preparedness documents, planning tools, and guidelines to the extent practicable and consistent with the Act.

Chapter 2 – Additional Preparedness

Sec. ¬¬661. Emergency Management Assistance Compact Grants. The Administrator may make grants to administer the Emergency Management Assistance Compact. $4,000,000 is authorized for FY08 and is to remain available until expended.

Sec. 662. Emergency Management Performance Grants. Authorizes to be appropriated for the Emergency Management Performance Grants Program for FY08, an amount equal to the amount appropriated for the program for FY07 and an additional $175,000,000.

Sec. 663. Transfer of Noble Training Center. Transfers the Noble Training Center to the Center for Domestic Preparedness. The Center for Domestic Preparedness is to integrate the Noble Training Center into the program structure of the Center for Domestic Preparedness.

Sec. ¬664. National Exercise Simulation Center. Requires the President to establish a national exercise simulation center that uses a mix of live, virtual, and constructive simulations.

Subtitle D―Emergency Communications
Section 671. Emergency Communications.
This section, entitled the 21st Century Emergency Communications Act of 2006, amends the Homeland Security Act by inserting a new Title XVIII, consisting of eight new sections (numbered 1801-1808) that provide as follows:
Sec. 1801. Office of Emergency Communications.
This section establishes a new “Office of Emergency Communications,” with a Director who would report to the “Assistant Secretary for Cybersecurity and Communications.” The responsibilities of the Director would include:
• assisting the Secretary in developing and implementing the public safety communications interoperability program in Section 7303(a)(1) of the Intelligence Reform and Terrorism Prevention Act (IRTPA);
• administering Integrated Wireless Network (IWN) program, and the SAFECOM program (except those elements related to R&D, testing, and standards), which the Secretary is directed to transfer to the Director for Emergency Communications, along with the Interoperable Communications Technical Assistance Program.;
• conducting outreach and performing such other duties of DHS necessary to support and promote the ability of emergency response providers and “relevant” government officials to continue to communicate in a natural or man-made disaster;
• conducting outreach to encourage development of operable and interoperable communications by State/regional/local/tribal (S/R/L/T) government, public safety agencies, and consortia;
• providing technical assistance to S/R/L/T officials relative to interoperable emergency comms capabilities;
• coordinating with the Regional Administrators regarding the activities of the Regional Emergency Communications Coordination Working Groups (see sec. 1805 below);
• promoting development of standard operating procedures and best practices for use of interoperable comms capabilities in incident response and promoting information sharing to develop and enhance such capabilities;
• in cooperation with the National Communications System (NCS), coordinating establishment of a national response capability for deploying comms equipment for “relevant” S/L/T governments and emergency response providers during a catastrophic loss of local/regional emergency comms;
• assisting POTUS and EOP (NSC, HSC, OMB) in ensuring the continued operation of Federal telecommunications functions and responsibilities (excluding spectrum management);
• working with Director of Office for Interoperability and Compatibility (see Sec.872, below) to establish requirements for non-proprietary interoperable emergency comms capabilities for all public safety radio and data systems purchased using DHS-administered assistance funds, but excluding any alert and warning devices, technologies, or systems;
• (in consultation with A/S Grants & Training) reviewing all Federal/State/local/tribal interoperable emergency comms plans developed using DHS-administered assistance funds;
• developing and periodically updating a National Emergency Communications Plan (see proposed sec. 1802); and
• performing other duties of DHS necessary to achieve, maintain, and enhance interoperable emergency comms capabilities.
The section requires the Director to coordinate with the Director of the Office for Interoperability and Compatibility (see Sec.872, below), and with the Administrator of FEMA with respect to the foregoing responsibilities.
Reporting Requirement: Finally, subsection (f) requires the Secretary within 120 days after enactment to provide to Congress a sufficiency of resources plan that identifies the resources and personnel needed to carry out the assigned responsibilities, the validity of which report is to be separately reviewed by the Comptroller General within 60 days after the date of submission of the plan by the Secretary.
Sec. 1802. National Emergency Communications Plan.
Reporting Requirement: Within 180 days following completion of the baseline assessment required by proposed section 1803 (see below), this section requires the Secretary, through the Director/Emergency Comms, and in cooperation with the Ðepartment of National Communications System (as appropriate)”, to work with Federal D/As, State/local/tribal governments, emergency response providers, and the private sector to develop a National Emergency Communications Plan with recommendations on how the U.S. should support and promote the ability of emergency response providers and “relevant” government officials to continue to communicate in a natural or man-made disaster and attain interoperable emergency communications nationwide. The bill directs the Emergency Communications Preparedness Center to coordinate the “Federal aspects” of the Plan.
The bill also prescribes the contents of the Plan, which include: recommendations (with FCC and NIST) for encouraging more rapid development of national voluntary equipment standards; an identification of the emergency comms capabilities necessary for emergency response providers and “relevant” government officials to continue to communicate in a natural or man-made disaster; an identification of the interoperable emergency comms capabilities necessary for F/S/L/T governments for a natural or man-made crisis; short and long-term solutions for deploying interoperable emergency comms systems for F/S/L/T governments and for ensuring that emergency response providers and “relevant” government officials can continue to communicate during natural and man-made disasters; identification of how Federal D/As that engage in disaster response can work with State/local/tribal/other entities; identification of obstacles to and recommended solutions for attaining nationwide interoperable emergency comms; recommended goals and timeframes for deploying an emergency, command-level comms system and interoperable emergency comms systems across the nation; and recommended measures that emergency responders should use to ensure continued operation of “relevant” governmental communications infrastructure during natural and man-made crises.

Sec. 1803. Assessments and Reports.
Reporting Requirement: Subsection (a) requires the Secretary, through the Director/Emergency Comms, to develop a baseline operability and interoperability assessment of Federal/State/local/tribal government identifies what interoperable emergency communications capabilities are needed to continue to communicate in the event of a natural or man-made disaster or to respond to certain events, what capabilities exist, and assesses the gap between existing capabilities and needs. The section also directs the Secretaries of Homeland Security and Commerce, and the FCC Chairman, to compile a national inventory of interoperable emergency communications used by Federal departments and agencies and for public safety systems. The first report is due one year after enactment with updates at least every five years thereafter. The bill provides that the Report may include a classified annex and the baseline assessment may incorporate findings from previous assessments conducted before enactment.
Reporting Requirement: Separately, subsection (b) directs the Secretary to provide a progress report to Congress within one year, and every two years thereafter, on the status of DHS’s efforts in implementing the bill’s requirements and achieving improvements in interoperable emergency communications nationwide and gaps that remain to be addressed.
Specifically, the progress report is required to include: a description of the findings of the most recent baseline assessment; a determination of the degree to which interoperable emergency comms have been achieved and remaining gaps; an assessment of the ability of communities to provide and maintain operable and interoperable emergency comms among emergency managers, emergency response providers, and government officials in a crisis; a list of best practices among communities for providing and maintaining operable and interoperable emergency comms; and an evaluation of the feasibility and desirability of DHS developing, alone or with DOD, a mobile communications capability that could be deployed to support emergency communications needs at the site of a natural or man-made disaster.
Sec. 1804. Coordination of Department Emergency Communications Grant Programs.
Subsection (a) tasks the Director of the Office of Emergency Comms to ensure that guidelines for DHS grant assistance for interoperable emergency communications are aligned with goals and recommendations set forth in the National Emergency Communications Plan, discussed above.
Subsection (b) authorizes the Assistant Secretary for Grants and Training, in consultation with the Director/Emergency Comms, to prohibit State/local/tribal governments from using DHS grant funds for interoperable emergency communications purposes if the entity has not submitted a Statewide Interoperable Communications Plan (required by sec. 7303(f) of the IRTPA); is proposing to use the funds for equipment or systems that do not meet or exceed national voluntary consensus-based standards (unless a reasonable explanation is provided); or if such voluntary standards have not been developed within three years after the release of the first National Emergency Communications Plan. The bill specifically directs the Secretary to work with NIST, the FCC, and other Federal agencies with standards-setting responsibilities to support the development and promulgation of such standards.
NOTE: An un-numbered draft section received from the Committee captioned Emergency Communications and Interoperability Grants would direct the Secretary to establish a grant program to make funds available to States and regions to support improvements in statewide, regional, national and, in certain circumstances, international emergency communications interoperability. The program must only be established, however, after the National Emergency Communications Report (sec. 1802) and the Baseline Assessment (sec. 1803) have been completed and submitted to Congress, and the Secretary has determined that there has been substantial progress toward the development and promulgation of voluntary, consensus-based standards.
Once the program is established, the bill permits the specified grant funds to be used to support short-term or long-term solutions for emergency communications operability and interoperability across the system life cycle (e.g., planning, system design/engineering, procurement and installation, exercises, technical assistance/training, etc.).
Sec. 1805. Regional Emergency Communications Coordination.
This section creates within each of the Regional Offices of the new entity a Regional Emergency Communications Coordination Working Group (RECC-WG), each of which reports to its respective Regional Administrator and coordinates its activities with its corresponding Regional Advisory Council. The RECC-WGs are to consist of non-Federal subject matter experts (SMEs) representing State and local officials (including emergency managers, homeland security advisors, and State administrative agencies) and police departments; local fire departments; local 911 services; and representatives from DHS, FCC, and other Federal departments and agencies with responsibility for coordinating emergency communications or providing emergency support services to State/local/tribal governments.
In performing their specified duties, the RECC-WGs are required to coordinate their activities with communications service providers across the range of sub sectors (e.g., local telephone companies, wireless carriers, local broadcasters, satellite service providers, cable television operators, etc.), equipment manufacturers, and other entities such as hospitals, public utilities, ambulance services, and amateur radio operators. Their duties include evaluating local emergency communications systems to determine whether they meet the goals of the National Emergency Communications Plan and reporting to their respective Regional Administrators, the Director for Emergency Communications, the FCC Chairman, and the Asst Secy of Commerce for Information and Communications on the status of efforts within the region to develop robust interoperable voice and data emergency communications networks.

Sec. 1806. Emergency Communications Preparedness Center.
The bill establishes an Emergency Communications Preparedness Center as an interagency body jointly operated by the Secretary, the Chairman of the FCC, the Attorney General, and the Secretaries of Defense, Commerce, and the heads of other Federal departments and agencies, pursuant to a Memorandum of Understanding entitled the Emergency Communications Preparedness Center (ECPC) Charter. The ECPC is charged to serve as a focal point for interagency efforts and as a clearing house for intergovernmental information to support and promote interoperable emergency comms and the ability of emergency response providers and “relevant” government officials to continue to communicate in a natural or man-made disaster.
Reporting Requirement. The bill also requires the Center annually to provide Congress with a strategic assessment regarding the coordination efforts of Federal D/As to advance the objectives of interoperable communications. In preparing this strategic assessment, the Center is directed to consider the goals contained in the National Emergency Communications Strategy Plan.
Sec. 1807. Urban and Other High Risk Area Communications Capabilities.
The bill requires the Secretary, in consultation with the FCC Chairman and the Secretary of Defense, and “appropriate” State/local/tribal officials, to provide assistance (including technical guidance and training) to support rapid establishment of interoperable emergency comms capabilities in urban and other areas that the Secretary determines are a consistently high risk from natural and man-made disasters (including acts of terrorism). At a minimum, the interoperable emergency comms capabilities must ensure the ability of all levels of government, emergency response providers, and the private sector to communicate with each other during an emergency, and must support appropriate and timely access to the Information Sharing Environment (ISE).
Sec. 1808. Definitions.
The bill defines “interoperable” by referring to the definition assigned in section 7303(g)(1) of the IRTPA (6 U.S.C. 194(g)(1)).
Section 672. Office for Interoperability and Compatibility.
This section amends Title III of the Homeland Security Act to insert a new Proposed Section 314, which outlines those responsibilities that would be retained by the Office for Interoperability and Compatibility in the Science and Technology Directorate. Specifically, these responsibilities include assisting with development and implementation of the S&T aspects of the public safety communications interoperability program in Section 7303(a)(1)(D)-(G) of the Intelligence Reform and Terrorism Prevention Act (IRTPA); in coordination with the FCC, NIST, and other Federal D/As with standards responsibilities, supporting the development of national consensus-based voluntary standards for interoperable emergency communications; and research, development, and testing to improve interoperable emergency comms (including for the SAFECOM program); and working with the Director of the Office of Emergency Communications to establish capabilities requirements for all public safety radio and data communications equipment purchased using DHS grant funds, and conducting pilot projects to test and demonstrate technologies to enhance interoperable voice, data, and video emergency communications capabilities.
NOTE: The draft contains a typographical error. It incorrectly designates the fourth subsection of proposed section 314, captioned “Clerical Amendment”, as (b). It should be designated as subsection (d).
Section 673. Emergency Communications Interoperability Research and Development.
Like the previous section, this section also would amend Title III of the HSA by inserting a new Proposed Section 315, which would establish a comprehensive emergency communications interoperability research and development program to be carried out by the Director of the Office for Interoperability and Compatibility within S&T. The R&D program would support competitive research efforts using HSARPA, and S&T is also directed to consider establishing a Center of Excellence for enhancing information and communications systems for emergency response providers.
Section 674. 911 and E911 Services Report.
Reporting Requirement. The bill requires the Chairman of the FCC to report to Congress within 180 days after enactment on the status of efforts of State/Local/Tribal governments to develop plans for rerouting 9-1-1 and e9-1-1 services in the event that public safety answering points (PSAPs) are disabled during a natural or man-made disaster.
Section 675. Savings Clause.
The bill explicitly states that nothing in Subtitle D shall be construed to transfer to the Office of Emergency Communications any function, personnel, asset, component, authority, grant program, or liability of FEMA as constituted on June 1, 2006.

Subtitle E - Stafford Act Amendments

Sec. 681. General Federal Assistance. Amends Section 402 of the Stafford Act by expanding efforts to include “response or recovery efforts, including precautionary evacuations.” The Federal government may also provide technical and advisory assistance to affected State and local governments for “recovery activities, including disaster impact assessments and planning” and may “provide accelerated Federal assistance and Federal support where necessary to save lives, prevent human suffering, or mitigate sever damage, which may be provided in the absence of a specific request and in which case the President” will work in conjunction with State and local officials. Section 681(b) amends section 502 of the Stafford Act to allow for assistance in an emergency for “precautionary evacuations” and to provide accelerated assistance in the absence of a specific request. Section 681(c) requires the President to promulgate guidelines to assist Governors in requesting an emergency declaration.

Sec. 682. National Disaster Recovery Strategy. The Administrator, along with various other government agencies (including the Assistant Secretary for Indian Affairs and representatives of nongovernmental organizations) and State and local government officials, shall develop, coordinate, and maintain a National Disaster Recovery Strategy.

Sec. 683. Disaster Housing Strategy. The Administrator, in coordination with Federal agencies and other organizations (listed in (b)(2)), the National Advisory Council, the National Council on Disability, and other entities at the discretion of the Administrator will develop, coordinate, and maintain a National Disaster Housing Strategy. The Strategy, in part, calls for a requirement that a sufficient number of housing units are provided to individuals with disabilities and also requires the Strategy to promote the repair or rehabilitation of existing rental housing. Within 270 days of the enactment of this Act, the Administrator is required to submit to Congress a report with the specifics of the Strategy and update the report when changes. In the absence of changes, the Administrator must submit a report to congress once every five years.

Sec. 684. Hazard Mitigation Grant Program Formula. This section changes the formula for HMGP to increase funding from 7.5% to 15% for amounts spent up to $2 billion, 10% for amounts spent between $2 billion and $10 billion, and 7.5% for amounts spent between $10 billion and $35.33 billion.

Sec. 685. Housing Assistance. Amends section 408 of the Stafford Act by striking “remote” and to authorize both “semi-permanent, or permanent housing” construction.

Sec. 686. Maximum Amount Under Individual Assistance Programs. Amends section 408 of the Stafford Act to eliminate the sub-limits applicable to repair and replacement assistance.

Sec. 687. Coordinating Officers. Allows for the President to appoint a single FCO for an entire affected area, including when such area encompasses more than one state.

Sec. 688. Definitions. Amends definition of private nonprofit facility to add additional facilities; and adds definition of “Individual with disability.”

Sec. 689. Individuals with Disabilities. This section would require the Administrator to develop standards to accommodate individuals with disabilities. Additionally, individuals with disabilities would be added to section 308 of the Stafford Act, which describes nondiscrimination policies in disaster assistance. Providing durable medical equipment is added to section 403(a)(3)(B) as an essential service to saving lives and protecting and preserving property or public health and safety. Persons with disabilities whose primary residences are rendered inaccessible are added as eligible persons for housing assistance under section 408. This section also adds language requiring that readily fabricated dwellings, to the extent practicable, must be located on a site that meets the physical accessibility requirements for individuals with disabilities.

Sec. 689a. Nondiscrimination in Disaster Assistance. Amending section 308(a) by inserting “English proficiency” after “age.”

Sec. 689b. Reunification. Within 180 days after the enactment of this act, the Administrator, in coordination with the Attorney General, shall establish the National Center for Missing and Exploited Children National Emergency Child Locator Center to assist in the tracking of displaced individuals under 21 years of age. Within 270 days of the enactment of this Act, the Administrator is required to submit a report to Congress describing in detail the status of the Child Locator Center.

Sec. 689c. National Emergency Family Registry and Locator System. No later than 180 days after the enactment of this Act, the Administrator is required to establish a National Emergency Family Registry and Locator System to help reunify families separated after an emergency or major disaster. Within 270 days the Administrator must submit a report to Congress describing in detail the status of the National Emergency Family Registry and Locator System.

Sec. 689d. Federal Assistance to Individuals and Households. Amends section 408(c)(1)(A) authorizing financial assistance for temporary housing to include assistance for the payment of utilities, security deposits and hookups.

Sec. 689e. Disaster Related Information Services. Amending Subtitle A of title VI of the Stafford Act to add section 616, which requires Administrator of FEMA to ensure that reasonable steps are taken to ensure effective communication with people with limited English proficiency, disabilities or special needs.


Sec. 689f Transportation Assistance and Case Management Services to Individuals and Households. Adds two new sections to Title IV of the Stafford Act: Sec. 425 Transportation Assistance to Individuals and Households and Sec. 426 Case Management Services. Sec. 425 authorizes the payment of transportation assistance to relocate individuals from their disaster-impacted primary residence to alternative locations where short or long-term housing solutions have been identified. This language also authorizes for transportation assistance to return to the primary residence or an alternative location, if deemed necessary by the President. Sec. 426 authorizes the President to provide case management services, including financial assistance to government agencies or qualified nonprofits to conduct such services.

Sec. 689g. Designation of Small State and Rural Advocate. Amends title III of the Stafford Act by adding section 326, which requires the President to designate a Small State and Rural Advocate within FEMA. No later than 180 days after the enactment of this Act, the Administrator is required to submit a report detailing disaster declaration regulations with respect to less populated States.

Sec. 689h. Repair, Restoration, and Replacement of Damaged Private Nonprofit Educational Facilities. Amends section 406(a)(3)(B) of the Stafford Act by inserting “education” after “communications,” thereby making educational facilities “critical” and eliminating the need for them to first apply to the SBA.

Sec. 689i. Individuals and Households Pilot Program. The Administrator, in coordination with State and local governments, is required to establish and conduct a pilot program, which is designed to make better use of existing rental housing, located in areas covered by a major disaster declaration, in order to provide timely and cost-effective temporary housing assistance to individuals and households eligible for assistance under section 408 of the Stafford Act where alternative housing options are less available or less cost-effective. The Administrator may enter into lease agreements and make improvements to properties. A report is due to Congress no later than March 31, 2009 on the effectiveness of the pilot.

Sec. 689j. Public Assistance Pilot Program. The Administrator, in coordination with State and local governments, is required to establish and conduct a pilot program to reduce the costs to the Federal Government of providing assistance to States and local government under, increase flexibility in the administration of, and expedite the provision of assistance to States and local governments provided under section 403(a)(3)(A), 406, and 407 of the Stafford Act. Several new procedures are authorized; current regulation may be waived; and a report is due to Congress no later than March 31, 2009 assessing the pilot. The pilot must be initiated within 90 days after the date of enactment of the Act.

Sec. 689k. Disposal of Unused Temporary Housing Units. Notwithstanding section 408(d)(2)(B) of the Stafford Act, if the Administrator authorizes the disposal of unused temporary housing units, they must be pursuant to subchapter III of chapter 5 of subtitle I of title 40.

Subtitle F—Prevention of Fraud, Waste, and Abuse

Sec. 691. Advance Contracting. No later than 180 days after enactment, the Administrator shall submit a report that identifies recurring disaster response requirements, including specific goods and services, for which the Agency can and cannot contract for prior to a natural disaster, act of terrorism or other man-made disaster in a cost effective manner. The report shall also identify a contracting strategy that maximizes the use of advance contracts to the extent practical and cost-effective.

Section 691(b) requires the Administrator, no later than one year after enactment, to enter into one or more contracts identified for each type of good or service identified in the report that can be contracted for in cost effective manner in advance of the incident. The Administrator shall consider section 307 of the Stafford Act before entering into any contract under this section. The Administrator shall also develop a process to ensure that Federal pre-negotiated contracts for goods and services are coordinated with State and local governments, and shall encourage State and local governments to enter into pre-negotiated contracts with vendors for goods and services. The Administrator is required to maintain contracts for the appropriate levels of good and services, as required by this section.

Section 691(d) requires a report at the end of each fiscal quarter on each disaster assistance contract entered into by other than competitive procedures to the appropriate committees of Congress.

Sec. 692. Limitations on Tiering of Subcontractors. This section requires the Administrator to promulgate regulations to minimize the excessive use by contractors of subcontractors or tiers of subcontractors to perform the principal work of the contract. The regulations shall prohibit a contractor from using subcontracts for more than 65 percent of the cost of the contract, or the cost of any individual task or delivery order, unless the Secretary determines that such requirement is not feasible or practicable. Covered contracts include any cost-reimbursement type contract or task or delivery order in an amount greater than the simplified acquisition threshold entered into by the Department to facilitate response to or recovery from a natural disaster, act of terrorism, or other man-made disaster.

Sec. 693. Oversight and Accountability of Federal Disaster Expenditures. The Administrator may designate up to 1 percent of the total amount provided to a Federal agency for a mission assignment as oversight funds to be used by the recipient agency for performing oversight activities carried out under the Agency reimbursable mission process. Funds are available until expended. Oversight funds may be used to monitor and audit expenditures, ensure proper management controls, investigate fraud, and review of selected contracts. Oversight funds may not be used to finance existing agency oversight responsibilities related to direct agency appropriations for disaster response, relief, and recovery activities. To the extent practicable, evaluations and audits under this section should be carried out by the Inspector General of the agency.

Section 693(e) requires an agency head, if the agency receives oversight funds for a given fiscal year, to develop a plan describing the oversight activities for disaster response, relief, and recovery anticipated to be undertaken the subsequent fiscal year.

Section 693(f) requires any Federal agency receiving oversight funds to submit an annual report to the Administrator and Congress regarding the use of such funds, including activities and results achieved.

Sec. 694. Use of Local Firms and Individuals. This section replaces section 307 of the Stafford Act. When Federal funds are expended on debris clearance, distribution of supplies, reconstruction, and other major disaster or emergency assistance activities, which may be carried out by contract, preference should be given to individuals and businesses residing or doing business primarily in the area affected by the disaster, to the extent feasible. This section does not restrict the use of DOD resources, and a contract or agreement may be set aside for award based on a specific geographic reason

Any contract not awarded for these activities shall be justified in writing in the contract file. An agency performing response, relief, and reconstruction activities shall transition work performed under contracts in effect on the date of the President declares the emergencies to local firms or individuals, unless the agency head determines that it is not feasible or practicable to do so.

This section does not affect contracts entered into before the occurrence of a major disaster or emergency.

Sec. 695. Limitation on Length of Certain Non-Competitive Contracts. The Administrator shall promulgate regulations that restrict the contract period of certain contracts entered into using noncompetitive procedures to the minimum contract period necessary to meet the urgent and compelling requirements of the work to be performed, and to enter into another contract through the use of competitive procedures. The regulations shall require the contract period to not exceed 150 days, unless the Secretary determines that exception circumstances apply. Covered contracts include any contract in an amount greater than the simplified acquisition threshold entered into by the Department to facilitate the response to or recovery from a major disaster or emergency.

Sec. 696. Fraud, Waste, and Abuse Controls. The Administrator shall ensure that the programs regarding disaster relief assistance develop and maintain proper internal management controls to prevent and detect fraud, waste, and abuse. Application databases used to collect information on eligible recipients must record disbursements, and must be integrated with application information. Any database or similar processing system must undergo a review by the Inspector General of the agency to determine the existence and implementation of the required controls.

Section 696(c) amends the section 408 of the Stafford Act to require the President (or his designee) to develop a system, including an electronic database, to verify the identity and address of the recipients of assistance to better ensure that eligible individuals receive assistance and that duplicative assistance is not paid.

Sec. 697. Registry of Disaster Response Contractors. The Administrator shall establish and maintain a registry of contractors who are willing to perform debris removal and other relief activities. The registry, among other things, shall include the name and location of the business, as well as whether the business is a small business. All information submitted shall be voluntary. The Administrator is required to verify the documentation provided by the business. The registry shall be made available on the agency’s website.

Sec. 698. Fraud Prevention Training Program. The Administrator shall develop and implement a program to provide training on the prevention of waste, fraud and abuse of Federal disaster relief assistance.

Subtitle G—Authorization of Appropriations

Sec. 699. Authorization of Appropriations. To carry out this title and the amendments made by this title, there is authorized for fiscal year 2008, an amount equal to the amount appropriated for fiscal year 2007 for administration and operations of the Agency, multiplied by 1.1. The same determination is made for fiscal years 2009 and 2010 (1.1 * the previous years appropriation).

Sec. 699a. Except as expressly provided otherwise, any reference to “this Act” contained in this titles shall be treated as referring only to the provisions of this title.

The Missing Link-The Unpublished NAPA Legal Appendix to Coping With Catastrophe (February 1993)

This document is not copyrighted
And is releasable to all interested persons.
Comments or corrections may be sent to
vacationlanegrp@aol.com


April 26, 2007

ANNOTATED VERSION OF UNPUBLISHED LEGAL
APPENDIX TO March, 1993 NAPA REPORT
“COPING WITH CATASTROPHE”


[Editor’s note—This document appears substantially as it did in the original version as prepared by Washington attorney John Bell for NAPA. Mr. Bell was a former federal government attorney retired the from the General Counsel’s Office of the Department of Housing and Urban Development as its highly respected and long-serving Associate General Counsel for Legislation. All footnotes appear in the original and are Mr. Bell’s. All annotations are marked in bold and are solely by the editor. Formatting has been slightly modified and typeface changed to improve readability. Typographical errors and grammar have also been corrected from the original. Because it is expected that comprehensive revision of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Public Law 100-707, November 23 1988 will occur in the 110th or 111th Congress this document is designed to facilitate research on that effort. A brief appendix to Stafford Act amendments is listed]


SUMMARY AND ANALYSIS OF GENERAL STRUCTURE AND DISASTER-RELATED LEGAL AUTHORITIES OF THE FEDERAL EMERGENCY MANAGEMENT AGENCY

February 17, 1993

This paper examines the statutory aspects of (1) FEMA’s general organization and structure, and (2) its authorities connected with major disasters. As statutory authorities, it covers both laws enacted by Congress and Executive orders. Some references are made to the formal published (CFR) regulations of the Federal Emergency Management Agency as they related to particular statutory provisions, but no effort has been made to summarize these regulations generally or to consider more informal agency issuances, such as the Civil Preparedness Guides. Citations to FEMA’s principal legislative and Executive order authorities appear in an appendix at the end.

[Note the appendix referenced has not been included in this document and instead an appendix listing FEMA’s cited legal authorities as of February 28, 2003 when it became part of DHS is included. Additional appendices are provided breaking down the authorities into statutory and delegated authority to conform to the NAPA analysis. The reason for this substitution is authority vested in the Director FEMA by statute or Executive order subsequent to the date of the NAPA analysis. An example of this is the repeal of the Federal Civil Defense Act of 1950, Public Law 920 of the 81st Congress (that statute vested authority in the President who then re-delegated his authority to various Executive Branch organizations including originally the Federal Civil Defense Administration, an independent unit in the Executive Branch and most recently to the Director of FEMA by E.O. 12148 and prior to its 1994 repeal by Public Law 103-337) and partial incorporation into the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707. Public Law 103-337, was signed in November 1994, eighteen months after the NAPA report was issued. That newly incorporated authority did not vest authority in the President, as does the rest of the Stafford Act, but vests authority in the Director of FEMA. It is the belief of the Editor of this annotated copy of the NAPA Legal Appendix that repeal of the FCDA was motivated at least in part by the NAPA report and this Editor provided the NAPA legal appendix to the House Armed Services Committee Staff. The Editor has no knowledge as to whether the NAPA team or other NAPA officials also provided the legal appendix to Congress. There are interested persons that argue the FDCA repeal has no legislative history. This Editor disagrees. In addition to the NAPA report and this legal appendix, in March 1992 the Acting Director of FEMA notified the Senate Armed Services Committee Chairman Sam Nunn that FEMA would soon submit the report mandated by Senate Report No. 102-527 concerning the National Defense Authorization Act for Fiscal Year 1993. This report was supposed to address civil defense reform but in fact addressed federal preparedness issues and general disaster relief administration. This occurred prior to Hurricane Andrew that made landfall in August 1992. On April 21, 1994 FEMA Director James L. Witt testified before the HASC (H.A.S.C. No. 103-40) as follows:
“As you may recall, last year, I announced our intention to get the Committee on Armed Services out of the FEMA business and noted that there was legislation that would affect this change. Too many House and Senate committees have legislative jurisdiction over FEMA’s activities.”
The Office of General Counsel of FEMA prepared a detailed paper analyzing the potential consequences of repeal of the FCDA. That document was also furnished to HASC staff. As a result rather than total repeal, a portion of the language was retained but modified to substitute the words “Emergency Preparedness” wherever the word “Civil defense” existed in the predecessor language, with one exception for civil defense communications systems, and was incorporated into the Stafford Act as a new Title VI. It is also true, however, that no organization or person has compiled a complete legislative history of the repeal of the FCDA. It is highly recommended that such a document be prepared but to do a complete job requires the substantial commitment of staff and funds. An accurate legislative history of the civil defense era from 1950-1994 is probably beyond the scope of any single individual without independent resources. Yet as a future is faced with multiple ballistic missile threats and increased numbers of states with nuclear weapons, as well as terrorism by non-state actors, the history of the federal civil defense effort should not be lost.]


I. FEMA’s General Organization and Structure

A. Types of Legal Authorities: Statutory and Presidential

1. Introduction.

FEMA was established by Reorganization Plan no. 3 of 1978, followed by the activating Executive order 12127 [March 1979] and Executive order 12148 [July 1979]. The plan and the Executive orders, as well as subsequent statutes and orders, make FEMA subject to two basic kinds of authorities, according to whether the grant of power to FEMA is statutory [by Congress] or Presidential [by delegation].

Statutory functions have been granted by or pursuant to Reorganization Plan No. 3 and a number of subsequent statutes. These functions can only be withdrawn or transferred by statute. For this purpose, a statute would include a reorganization plan, but general statutory authority[granted to the President] for reorganization plans has expired. (The President could, however, be authorized, by statute, to submit a plan covering a specific subject area, which Congress could approve by joint resolution.) [This discussion reflects INS v. Chada, a 1983 U.S. Supreme Court case involving Constitutionality of the one-house veto]

Presidential functions are largely derived from Executive order 12148 of 1979 that delegated to FEMA [legally to the Director of FEMA] various authorities, which had been given to the President by statute (including reorganization plans) or by the Constitution. Subsequent Executive orders have added to these FEMA functions. Unlike the statutory functions described above, these Presidential authorities can be withdrawn or reassigned, without changing the authorizing statutes.

In exercising these Presidential authorities, FEMA is in a position much like that of an office or division within a Federal department or agency that has been freely delegated authority by the agency head. See Footnote 1. The President may be considered to have a special interest in and authority over powers that he or she has delegated, distinct from the President’s general grant of executive power in Article II, section 1 of the Constitution. [Note that a general power to delegate his/her authority is vested in the President by 3 U.S.C. Section 301]
If the Attorney General interprets this delegated authority, it is generally safe to assume that, all other things being equal, it will be interpreted broadly in a manner that maintains the breadth of Presidential discretion. See Footnote 2.

2. Specific Statutory Grants of Authority

Responsibilities that have been directly lodged in FEMA by statute or reorganization plan include the flood insurance and crime insurance programs; [This latter program has not been statutorily repealed but authority to issue policies has expired. It was conducted pursuant to the Urban Property Protection Act of 1968 together with the Riot Reinsurance Program and that also no longer operates] fire safety training and research; funding and staff support responsibilities under title III of the Stewart B. McKinney Homeless Assistance Act; coordination, planning and assistance functions under the Earthquake Hazards Reduction Act; [Lead on the so-called NEHRP now 26 years in existence was transferred from FEMA to NIST in the 2003 Congressional reauthorization.] approval of State and local emergency plans for nuclear power plant accidents pursuant to several Nuclear Regulatory Commission authorization [and appropriation] acts [See footnote 3]; and monitoring of State and local training and planning under the Hazardous Materials Uniform Transportation [Safety] Act. FEMA also has statutory responsibilities relating to disasters in the insular areas under the Omnibus Insular Areas Act of 1992, PL 102-247, which places disaster relief authority in the President but unlike the Stafford Act, requires that the President act through FEMA. See Footnote 4.


3. Specific Presidential Grants of Authority

Most of the important FEMA functions that relate to federal emergencies and disasters involve the exercise of Presidential authority, having been given to FEMA by Executive order, even though the original source of that authority is usually to be found in a statute. This is true of FEMA’s disaster and emergency functions under the Federal Civil Defense Act of 1950 [Public Law 81-920], and mobilization, preparedness and continuity of government functions under the Defense Production Act [of 1950], National Security Act [of 1947], Executive order 12656 (national security emergencies) [signed November 18, 1988]. Executive order 12148 assigned to FEMA responsibility for coordinating planning to reduce the consequences of major terrorist incidents. Also, that order assigned responsibilities for dam safety, although this role appears to have been substantially limited by subsequent legislation (Public Law 99-662 giving dam safety responsibilities to the Secretary of the Army. [A new statute the National Dam Safety Program Act of 1995 vested authority for lead in the Director of FEMA. The Dam Safety and Security Act of 2002, Public Law 107-310 has now amended that statute. Both codified at 33 U.S.C. section 467 et seq.]

FEMA’s telecommunications responsibilities under Executive order 12472 are substantially Presidential, as is its responsibility under Executive order 12148 for “coordination of natural and nuclear disaster warning systems.” Also in this category are: any retained FEMA functions under the Comprehensive Environmental Response and Liability Act of 1980 (Superfund); FEMA’s responsibilities under Executive orders 12241 and 12657 for a “National contingency Plan” covering emergencies at nuclear power plants and, when those plants are not covered by State or local emergency plans, for approving private utility plans, planning the federal response, and coordinating and exercising “command and control” over that response; and FEMA’s responsibility under Executive order 12699 in connection with the carrying out of seismic safety requirements affecting Federal, Federally assisted and Federally regulated building. [See also E.O. 12941 concerning existing Federally owned or leased buildings.]


B. Status of FEMA as an Executive Branch Agency

1. Introduction

Reorganization Plan No. 3 of 1978 created FEMA as an independent agency and, like other Executive branch agencies, FEMA is of course subject to supervision by the President. But FEMA also has certain powers to control or “coordinate” other federal agencies, and it is also subject to certain special supervision, as provided for in or pursuant to Executive orders. See Footnote 5.

Generally, the effect of these provisions is - -

-to make FEMA, even in its natural disaster role, in large part an agency concerned with planning for and coordinating the actions of other agencies;
but also

-so far as nuclear attack hazards and national security emergencies are concerned, to place FEMA under the National Security Council and Department of Defense. (Note that the Executive orders as described set out the structure; that structure may not be in operation). [This is the conclusion reached by the NAPA author of the appendix since he did not have access to classified documents. A listing of Reagan/Bush/Clinton National Security Directives or Presidential Directives affecting FEMA is attached as an appendix. Also a number of HSPD’s (Homeland Security Presidential Directives) issued prior to the formation of DHS impacted FEMA]

2. Special “Coordinating” functions. These are primarily granted by Executive orders. Specifically - -

Executive order 12148 that issued originally in 1979 assigned to FEMA most of its emergency management responsibilities, including responsibility for civil defense under the Federal Civil Defense Act. Under this order:
-The FEMA director is responsible for establishing policies for, and coordinating, “ all civil defense and civil emergency planning, management, mitigation and assistance functions of Federal agencies” and for “periodically” reviewing and evaluating “civil defense and civil emergency functions of Executive agencies” and recommending to the President better ways of carrying out these functions.
-The FEMA director is made responsible for “the coordination of (1) planning to reduce the consequences of major terrorist incidents and (2) natural and nuclear warning systems.

-provision is made for interagency Emergency Management Council, which is to be chaired by the Director of FEMA and is to include the Director of OMB. This is to advise and assist the President on oversight and direction of Federal emergency management programs and to provide guidance to the FEMA director in performance of his or her duties. [The authority for the Council was revoked by E.O. 12919 in 1994]

-there is delegated to FEMA the President’s authority


(1) under the Stafford Act “to direct” other Federal agencies to take certain actions in connection with emergencies and major disasters;

(2) under the Civil Defense Act (sec 201 (a) and (b) to “direct” national plans and programs for civil defense and “review and coordinated civil defense activities” of other agencies with each other and with States and other countries; [Note repeal of Federal Civil Defense Act in 1994]

(3) under the Defense Production Act and Executive order 10480
“to coordinate all mobilization activities of the executive branch . . . including activities relating to production, procurement, manpower, stabilization and transport” and [Note E.O. 10480 revoked by E.O. 12919 in 1994]

(4) under Executive order 11912 and section 1019 (c) of the Defense Production Act to provide “overall coordination and direction” of the President’s power in certain circumstances to allocate and expand production of domestic energy. See Footnote 6. [This authority was repealed by E.O. 12919 in 1994]

Executive order 12656 is the most comprehensive document assigning responsibilities for national security emergency preparedness. These emergencies are defined to include not only those resulting from hostile action but also “any occurrence, including natural disaster . . . technological emergency, or other emergency, that seriously degrades or seriously threatens the national security . . . “Under this order:

-FEMA is to assist the National Security Council (NSC) in the “implementation of national security emergency preparedness policy by coordinating with other Federal departments and agencies and with State and local governments and by providing periodic reports to the National Security Council.”

-FEMA like other agencies is assigned various “primary” and “support” functions, some which call for it to “coordinate” the activities or to provide them with “guidance” concerning emergency preparedness plans and programs, continuity of essential domestic emergency functions during national security emergencies, mobilization of resources in response to national security emergencies, use of defense production authorities to meet national security needs, and (“in cooperation with the Secretary of Defense”) mutual civil-military support during national security emergencies. See Footnote 7.

Executive order 12742 delegates to the Secretaries of Agriculture,
Energy, Transportation and Commerce the President’s authority, under 50 U.S. C. App 486, to secure on a priority basis supplies and materials for the use of the armed services or atomic energy program when this is found by the Secretary of Defense to be in the interests of national security. Under this order, implementing regulations are to be issued by the Secretaries named and also by the FEMA Director who is to coordinate the implementing regulations and procedures.

3. Special Supervision and Oversight of FEMA

Executive order 12148. Under this order (sec. 2-204), FEMA is made “subject to oversight by the Secretary of Defense and National Security Council” in connection with its civil defense planning in order that this planning “is 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.”
[This oversight language continues to exist in E.O. 12148 as amended even though the Federal Civil Defense Act of 1950{Public Law 920 of the 81st Congress) has been repealed. It should be noted that NSDD-26 issued in 1982 linked civil defense to the strategic deterrence even though strategic doctrine did not otherwise reflect that linkage. The revocation of NSDD-26 by NSDD- 259 in 1987 changed that linkage. That NSDD-259 was in turn revoked by NSDD-66 in 1992 and that document completely eliminated civil defense from any vestige of being a factor in US strategic doctrine. Arguably, NSDD-259 revoked the linkage even before NSDD-26]

Executive order 12656. As explained above this order applies to preparedness for national security emergencies that may include natural or man-made attacks if they degrade or seriously threaten national security.

Under this order FEMA, besides being given specific independent responsibilities, and given certain powers to act on behalf of the National Security Council, is also made an advisor and support agency under terms that appear to subordinate it directly to the Council in connection with overall national security preparedness, including FEMA’s responsibilities in connection with, among other things, “mobilization preparedness, civil defense, continuity of government and technological disasters . . .”


II. General Categories of FEMA statutory authorities

A. Introduction.

FEMA has a variety of different authorities that can be divided by function or purpose into different categories. The following discussion covers both authorities that authorize FEMA to do certain things and the statutes that appropriate funds for FEMA’s activities. The former require distinguishing among various FEMA functions that the latter, for funding purposes, lump together so far as statutory restrictions are concerned.

B. Authorizing Statutes.

1. Basic categorization.

In general, FEMA’s various authorities can be categorized according to whether they relate primarily to
a) Local emergencies and events not individually of federal concern;
b) Mobilization and protection of production and related resources in time of war or an energy emergency;
c) Protecting citizens by preparing and responding to emergencies or disasters of federal concern that do not result from hostile actions;
d) Protecting the civilian population in time of war or enemy attack; and
e) Assuring continuity of government in the case of attack or national security emergency . . .

Categories a) and b) are relatively distinct from other FEMA functions, but may overlap to some extent other authorities. There is a great deal of overlap between categories c) and d). Category e) overlaps b) and d) to the extent that mobilization and protecting citizens after an attack depend upon the ability of the federal government to continue in operation. This problem of continuity is less likely in the event of a natural or technological disaster that is category c).

2. Individual categories of authorizing authority.

a) Authorities relating to events not individually of federal concern.

Some FEMA activities carried on pursuant to discrete authorities are also functionally distinguishable from the bulk of what FEMA does in that they relate more to a series of continuing, local events and situations than to disasters or emergencies that, in themselves, become matters of federal concern. Thus, homelessness may be a national problem, but the assistance authorized under the McKinney Act is more designed to alleviate an ongoing community problem than to respond to large scale, sudden events. Similarly, the great bulk of fires and property crimes, though unexpected, are local events, even though cumulatively and in certain kinds of disaster or certain circumstances fires and crimes may be of national concern.

The distinction between these authorities, particularly those of the Fire Administration and Fire Academy, and other FEMA functions may depend upon how they are administered and applied. Fire training, technical assistance and research could relate in substantial measure to emergency response to out-of the ordinary fires; under current statutory provisions, however, priority is to be given to reducing the incidence of residential fires. See Footnote 8

Among other FEMA authorities, the flood insurance program can be considered as locally focused in the sense that most floods don’t become matters of federal concern. Similarly, Federal assistance to State and local disaster preparedness programs has a “pay off” in connection with events that, more often than not, do not become Federal emergencies or major disasters. In both of these instances, however, the programs have a major purpose of preventing - - however effectively or ineffectively – events from becoming as large or devastating as to require a federal response.

b. Authorities relating to mobilization.

Executive order 12148 delegated to the FEMA Director the function under the National Security Act of advising the President concerning the coordination of military, industrial and civilian mobilization. Under Executive orders 10480 and 12656 FEMA has responsibilities relating to mobilization that are either specifically tied to or based upon the Defense Production Act.

All of these are war authorities, except for a provision of the Defense Production Act relating to energy emergencies. Moreover, as a practical matter, the “mobilization” authorities that FEMA derives from this Act under Executive orders 12148, 10480 and 12656 would ordinarily not be needed in dealing with a natural disaster or emergency of domestic origin. But there of course could be exception situations, as when a disaster disrupts production of equipment or supplies considered necessary for national defense. Executive order 12656 in effect recognizes this possibility by referring to a disaster that “seriously degrades or seriously threatens national security.” See footnote 9

In addition, Executive order 12742, as described above, gives FEMA certain coordinating jurisdiction over the placing of orders for military supplies in the interest of national security that is not necessarily limited to war or threat of war.
(Note that while this “mobilization” function may be considered to include FEMA’s continuity of government responsibilities, however, these are discussed separately as item e below)
[Note that no discussion of NSDD-47 issued in 1982 is contained in the appendix. This document mandated a single domestic mobilization system for both civil disasters and emergencies including attacks impacting domestically]

c. Authorities related to emergencies and disasters.

As explained above, there is much overlap between FEMA’s authorities in connection with emergencies and disasters and its authority related to civil defense against enemy attack. The overlap is noted, where relevant, in the following discussion of specific items.

Earthquake and nuclear power plant hazards.

FEMA has specific responsibilities in connection with earthquake and nuclear power plant hazards under specific statutes and Executive orders. Neither of these categories of authority would ordinarily to war or defense situations, although a nuclear facility could be the target for sabotage or terrorist activity. These specific authorities overlap FEMA’s more general authorities in that FEMA would apparently be authorized - -though not required - - to carry on most of the same activities under its delegated powers under the Federal Civil Defense Act of 1950, the Stafford Act, and Executive orders 12656 (national security emergencies) and 12472 (telecommunications). This would not be true, however, of FEMA’s role in enforcing Federal seismic standards.

Flood insurance.

This program is carried on pursuant to separate statutes that authorize many activities that could not be carried on pursuant to FEMA’s other, general authorities, although those authorities could be used to support some of the planning and technical assistance associated with flood plain identification and management. As a mitigation authority and source of financial assistance to flood victims, the flood insurance program is closely tied to FEMA’s disaster response authorities, a connection reflected in specific statutory provisions in both the Stafford Act and the flood insurance legislation.

Telecommunications.

FEMA derives communication responsibilities and authorities from a number of sources, including Executive orders 12148, 12472 and 12656, section 201(c ) of the Federal Civil Defense Act of 1950 and 418 of the Stafford Act (both as delegated under Executive order 12148) and sections 203 of Reorganization Plan No. 1 and 103 (b) of Executive order 12127. This authority is available for use in either attack or non-attack disaster situations. [See implementing regulations at 47 CFR Parts 11, and 201-212]

The Stafford Act.

This is commonly thought of as a “disaster” authority. It has, of course, always been so used in the past and, generally, has been designed to deal with various kinds of disasters, as opposed to national defense or civil defense problems. However, as explained below in connection with FEMA’s civil defense authorities, the Stafford Act also serves as a statutory authority that would undoubtedly be employed in the event of enemy attack. A detailed discussion of Stafford Act authorities appears later in this paper.

The Federal Civil Defense Act of 1950

This statute authorizes “civil defense” actions and defines that term to include both actions related to “natural and manmade” disasters as well as to enemy attack.

The Act requires that FEMA maintain a “program structure” for “attack-related civil defense” and another for “disaster-related civil defense,” as well as “criteria and procedures” to allow resources assigned to the two structures “to be used interchangeably”; it specifies a number of “elements” to be considered for the “attack-related structure; and it requires generally that the use of funds for “natural disasters” be “consistent with,” contribute to, and “not detract from attack-related civil defense. Yet most provisions of the Act that authorize specific activities - -financial assistance, training, acquisition and positioning of materials - -are written in terms of “civil defense” generally or “the purposes of this Act,” and can be cited in support of wither war or non-war preparedness activities.

Executive order 12148.

As indicated above, this order gives to FEMA responsibility for establishing Federal policies for, and coordinating, all civil defense and civil emergency planning, management, mitigation, and assistance functions of Executive agencies. “Civil emergency” is defined to include, not only a wartime emergency, but “any” accidental, natural or man-cause emergency or threat “which causes or may cause substantial damage to or loss of property.”

A specific provision of this order also made FEMA responsible for a dam safety program. As noted above, subsequent legislation established a dam safety program to be administered by the Secretary of the Army (33 U.S.C. section 467), although the conferees at the time expressed a desire that FEMA continue a modified program. [subsequent to this discussion dam safety legislation became law and should be separately analyzed for FEMA’s role. See the National Dam Safety Program Act and the Dam Safety and Security Act of 2003 both codified at 33 U.S. C. Section 467]

Executive order 12656.

This may be considered a disaster and general emergency authority to the extent that a national security emergency is defined to include a natural or technological disaster if it affects national security. As further noted below, some specific FEMA responsibilities under this order related expressly to war or attack situations, but others are not so limited. This Executive order, it should be noted, fixes responsibilities but, as with all Executive orders, does not necessarily carry with it the authority to do what it requires. This must be found either in specific statutes (such as the Stafford Act and Federal Civil Defense Act) or in the President’s Constitutional powers as chief executive and commander-in-chief. See Footnote 10.

d. Civil Defense (Attack-Related) Authorities.

FEMA’s responsibilities for civil defense against attack are primarily derived from three sources. The first two are statutes granting powers that were delegated by Executive order 12148. The last is an Executive order that does not itself delegate any authority but fixes responsibilities that depend upon the named agencies, including FEMA, having statutory authority form other sources or being able to rely upon the President’s Constitutional powers.

The Federal Civil Defense Act of 1950.

Originally, this statute contained both preparedness and, in Title III, emergency response authorities. The preparedness authorities covered preparedness against both natural disasters and enemy attacks. The response authorities became effective only upon a declaration of emergency by the President in the event of a threatened or actual attack. The Title III, response authorities were allowed to expire in 1974. The Act thus remains primarily as a preparedness authority, covering both attack and natural disaster risks.

Most of the authorities under this Act, including those authorizing financial assistance to States for “shelters” and federal purchase of such things as “radiological detection devices, protective devices and gas detection kits” could, literally be applied to various kinds of domestic events as well as enemy attack. However, some provisions demonstrate the original and continuing “attack” focus.
These include a requirement that funds to the States for “shelter and other protective facilities” be distributed according to relative urban population in “the critical target areas” and a similar requirement under which “criticality of the target . . . areas” is made a consideration in distribution of grants to the States for civil defense personnel and administrative expenses. Further, while the Act requires that there be a separate “program structure” for both “attack-related and “disaster-related” civil defense, it contains specific requirements only for the “attack-related” structure.

Finally, as already noted (see above “Federal civil Defense Act) in its statement of purpose, and provisions for allowing the States to use e funds for natural disasters, the Federal Civil Defense Act of 1950 gives priority to attack-related civil defense. Specifically, States may use funds for natural disaster purposes only “to the extent that . . . use . . . is consistent with, contributes to, and does not detract from attack-related civil defense preparedness. See Footnote 11.

The Stafford Act.

Generally regarded and used by FEMA as the principal “disaster” authority, this Act also serves as a defense authority. Thus

-Preparedness. Both Federal preparedness and assistance for State preparedness under section 201 of the Act clearly can be considered to extend to support of both “war” and “non-war” activities.

-Disaster Assistance and recovery. As amended in 1988, the statute specifically covers disasters other than those caused by natural events –“regardless of cause” –so long as their effect is produced by “fire, flood or explosion”; in any likely circumstance, therefore, an enemy or terrorist attack, upon the request of one or more governors, could be the basis for a disaster declaration that would make available all the procedures, responses, and benefits that the Act provides for major disasters.

-Emergency and advance response. The 1988 amendments to the Act established an “emergency” (section 501(b)) category for “Certain Emergencies Involving Federal Primary Responsibility” under which all the Act’s emergency response authorities – but not most of its disaster relief benefits – can be deployed either before or after a disaster without a governor’s request. These areas of “Federal Primary Responsibility” for which this authority could be used obviously include responsibility for national defense and response to attacks, as well as events directly involving major Federal facilities. Also presumably covered are emergencies affecting federally dominated activities, such as control or regulation of atomic energy, and any emergency so severe as to affect national security.

Executive order 12656. Most of the Federal government’s war and natural disaster preparedness responsibilities, including those of FEMA, are to some extent blurred under Executive order 12656, which brings together agency assignments in connection with national security emergencies. This order cites as statutory authority the Federal Civil Defense Act of 1950 [now repealed by Public Law 103-337, 1994], as well as the Defense Production Act, and the National Security Act – but not the Stafford Act. [The Stafford Act became law November 23, 1988 while the Executive order was signed on November 18, 1988] It defines a “national security emergency” to include “military attack” as well as a natural disaster . . . technological emergency, or other emergency” if it “seriously degrades or seriously threatens the national security of the United States.”

Many of the specific responsibilities assigned to the different agencies under Executive order 12656 are so worded that they could relate to either a war or non-war emergency. This is true of most of FEMA’s responsibilities, although some by their terms are specific to war or attack situations, including:

-developing and coordinating “programs . . . for crisis management, population protection, and recovery in the event of attack”;

-developing and maintaining, with the assistance of other agencies, “capabilities to assess actual attack damage and residual and residual recovery capabilities, as well as capabilities to estimate the effects of potential attack”;

-providing “guidance to . . . Federal . . . agencies on the appropriate use of defense production authorities; and

-assisting the Secretary of State . . . in [providing support] for NATO Wartime Agencies.”


Executive order 12148. This order has been described above. As relevant here:

-It gives to FEMA authority to prepare policies for and coordinate Executive agency planning, mitigation and assistance functions in connection with civil defense and civil emergencies that extends to war time emergencies.

-It gives to the Secretary of Defense, along with the National Security Council, oversight covering FEMA’s civil defense activities to assure that they are “fully compatible with overall strategic policy” and to maintain an “effective link” between strategic nuclear planning and nuclear attack preparedness.

-It directs the Secretary of Defense to provide the FEMA Director with support for civil defense programs “in the areas of program development and administration, technical support, research, communications, transportation, intelligence and emergency operations.”

-In addition, this order assigns to FEMA responsibility for coordinating planning to reduce the consequences of major terrorist incidents.

Telecommunications. FEMA’s telecommunications authorities, as described above in connection with its disaster authorities would also be applicable to attack-related emergencies and situations.


e. Continuity of Government.

Under National Security Act authority, as delegated by Executive order 12148, FEMA is responsible for advising the President concerning “coordination of military, industrial and civilian mobilization, including . . . the strategic relocation of . . . government . . . , the continuous operation of which is essential to the Nation’s security.

Under Executive order 12656, FEMA is assigned lead responsibility for coordinating the development and implementation of plans “for the operation and continuity of essential domestic emergency functions of the Federal Government during national security emergencies.” The essential responsibility represented by this assignment may be regarded as one vested in the President by the Constitution.


C. Appropriations Acts

FEMA’s budgets. FEMA’s budget requests have divided funding estimates and requirements into a variety of categories to accommodate different programs and projects undertaken under FEMA’s statutory authorizing authorities, as described above. As agreed to by Congressional appropriations committees, these budget categories are more or less constraining depending upon the degree to which those committees are willing to accept the shifting of funds among them. However, these restrictions are for the most part not statutory; they may be exceeded or changed by agreement without a change in statutory law as contained in appropriation acts.

Appropriations Acts. The statutory appropriations appear to impose relatively few restrictions, override some authorization, such as under the Federal Civil Defense Act, and – subject to agreements as described in the preceding paragraph –permit funds to be moved with relative freedom among different FEMA legal authorities to reflect both program needs and overlapping authorities, particularly in connection with the “preparedness” functions that are authorized under different statutes.

Specifically, under Public Law 102-389, the Veterans, HUD, Independent Agencies appropriation act for fiscal 1993 –

1) Funds are appropriated ‘for carrying out the functions of the Robert T. Stafford Disaster Relief and Emergency assistance Act” without a breakdown of specific amounts for particular provisions or purposes, except for limitations on direct loans.

2) A separate appropriation heading provides a sum for FEMA’s “Salaries and Expenses,” including attendance “of cooperating officials and individuals” at emergency preparedness meeting and transportation in connection with continuity of government functions. Another heading covers expenses of the Office of Inspector General. A “National Flood Insurance Fund” heading covers use of that Fund, with various provisions for transfers and limitation, including a permitted transfer to the emergency planning and management category, described immediately below.

3) Most significant, the Act also appropriates, in a lump sum, $253,243,000 “to carry out activities” described under the heading “Emergency Management Planning and Assistance,” as authorized under a number of statutes, all of which are listed without description or distinction. These are the Flood Disaster Protection Act of 1973, the Stafford Act, the Earthquake Hazards Reduction Act, the Federal Fire Prevention and Control Act, the Federal Civil Defense Act, the Defense Production Act, section 103 of the National Security Act, and Reorganization Plan No. 3 of 1979. In effect, this appropriation allows funds to be allocated for various kinds of preparedness assistance under these listed statutes substantially according to administrative discretion, except as particular uses or transfers among categories may require negotiation to accommodate committee report language or informal understandings with the appropriations committees.

III. FEMA and Federal Disaster Response and Relief Authorities.

A. Introduction: Terminology.

“Mitigation”, “preparedness”, “response” and “recovery” have become terms of art for those who study disaster programs of the Federal government. The first two are statutory terms. The latter two, however, while they appear in the Federal Response Plan under the Stafford Act, are generally not used or used in any consistent way in either the Stafford Act or its predecessor laws.

This paper observes the distinction between “response” and “recovery” where it appears that the discussion might otherwise be misleading, but where possible the terms are avoided in favor of the more general terms, “relief” or “assistance.”


B. Panoply of Federal Disaster Relief Programs

1. The multiplicity of authorities.

The 1989 digest of “Federal Disaster Assistance Programs” lists more than 90 separate programs – undivided between the various categories, “mitigation”, “preparedness”, “response” and “recovery” – which can be used to help those who are or may be affected by disasters. Only 18 of these are described as FEMA programs. A recent FEMA computer survey that used the “time of war” and “national emergency” as search terms produced 135 separate authorities. Of these, it appears that there are two dozen or more not administered by FEMA that either refer specifically to disasters or are of such a character that they might well be used without a war or attack in an emergency or disaster recognized under the Stafford Act.

The Federal Response Plan [superseded by the NRP (National Response Plan on April 12, 2005] touches only a few of these authorities and reaches none of those that would ordinarily be considered to fall in the “recovery” category.

One way of looking at these programs would be by kind or degree of emergency or disaster to which they typically relate. Thus, federal programs may be classified and discussed as follows:

Local events: federal actions that assist States and localities to deal with local events that may, cumulatively, be of national significance but may not individually rise to levels of federal concern.

Federal mitigation programs and efforts may be considered to fall in this category, as may federal assistance to State and local preparedness programs. The more able States and localities are to deal with emergencies and disasters, the more likely these events are to remain local. And if there is a call for federal action, the scope and cost of that action will be reduced to the extent that States and localities have taken active mitigation measures and are well prepared.

Events of limited federal interest: actions take by individual federal agencies to help those affected by emergencies and disasters that are not a part of a coordinated or multi-agency effort.

Major emergencies and disasters: federal actions that contemplate a combined or coordinated response by a number of federal agencies but that are not necessarily subject to immediate or personal control by the President.

Presidential Emergencies: coordinated federal actions relating to events of such magnitude or importance that what is done is made subject to the immediate control of the President, of individuals specifically designated to as personal representative of the President, or, in the case of national security emergencies, of the National Security Council. [Arguably now the Homeland Security Council created after 9/11 although the legal operational authority (meaning command and control as opposed to coordination) of either of these two organizations in the Executive Office of the President had been repeatedly questioned]

A particular federal program or system may fall under a different
Category, depending upon the circumstances. For example, under the Stafford Act, mitigation assistance and mitigation requirements –rather than being “local” in occasion and purpose – may accompany a system of relief following a major disaster. Similarly, an agency with a disaster relief authority that could be used individually – for an event of “limited” federal interest – could also agree or be required to use that authority in connection with a major disaster or a Presidential emergency. And a coordinated system of agency actions that would normally be taken in connection with a major disaster may rise to the Presidential category if the President acts to take personal control.

Subject to these qualifications, each of the categories is discussed separately below.

2. Specific categories of Federal disaster assistance efforts

a) Mitigation and preparedness assistance

1) Authorities of agencies other than FEMA.

Several Federal agencies other than FEMA are authorized to grant assistance to States or to State and local agencies to help them prepare for or mitigate the effect of various kinds of disasters. Thus, the Department of Transportation is authorized to make grants to assist States in preparing for accidents involving the transportation of hazardous materials, pursuant to the Hazardous Materials Transportation Uniform Safety Act of 1990 (49 U.S.C. sec. 1815), although this law also places on the Director of FEMA primary responsibility for monitoring local emergency planning and training for response to hazardous materials incidents. Public Law 99-662 (33 U.S.C. sec. 467g) requires the Secretary of the Interior to assist any State that establishes an approved dam safety program.

2) FEMA authorities.

(A) In general. FEMA is the principal federal agency responsible for assisting State and local governments to prepare for disasters. It authorities for this purpose include, in addition to fire safety legislation, two statutes providing for activities connected with special hazards – the program of grants and technical assistance to help States prepare for earthquakes, as authorized by the Earthquake Hazards Reduction Act; and advice, consultation and public information authorized in connection with the flood insurance program.

Two other major FEMA assistance authorities are available generally to cover various kinds of disaster preparedness, including earthquake hazards, flood hazards, and radiological emergencies. These are the provisions for technical and financial assistance to States in the Federal Civil Defense Act and the Stafford Act. Both of these statutes allow this assistance to be given to State and local governments to prepare for “disasters” or “natural disasters,” without specifying the size or scope of the possible events. And while a “major disaster” under the Stafford Act is specifically defined to exclude events caused by human actions that do not involve fire, flood or explosion, this limitation apparently does not extend to the authorization for preparedness assistance. Thus Stafford Act preparedness assistance, as well as that under the Federal Civil Defense Act, could be used to prepare for kinds of radiological emergencies that would not qualify under the Stafford Act as “major disasters.” [It should be noted that subsequent to enactment of the Stafford Act, a number of state directors of emergency management requested in writing that the Stafford Act be formally amended to encompass radiological releases of all kinds that impacted the public. That request was never acted upon by either the Executive Branch or Congress. In fact, in testifying before the Presidential Commission on Response to a Catastrophic Nuclear Accident, the FEMA witness testified supplemented by a written statement that the Stafford Act had no applicability to a nuclear accident at an NRC regulated facility. The statement based this conclusion on the existence of the Price-Anderson Act that reinsures the nuclear industry for accidents affecting the public. When the NRC obtained the formal commission report to Congress stating the FEMA testimony and position a NUREG was created discussing both statutes. This discussion was never reviewed by the Department of Justice so its accuracy is unknown to this date. It should also be noted that no amendment of coverage has occurred to definitions in the Stafford Act since September 11, 2001. The nuclear accident coverage or non-coverage of the Stafford Act was identified by the Editor of this annotated paper for each new general counsel reporting to FEMA from 1979 to the Editor’s retirement in 1999 from the General Counsel’s Office of FEMA. To date the issue, potentially the largest preparedness legal issue in emergency planning is still unaddressed by the Department of Justice.]

(B) The Stafford Act. The Stafford Act includes a broad authorization (section 201(b) for “technical assistance” to help States to: develop “comprehensive plans and practicable programs” to prepare for disasters, assist individuals, businesses and local governments after disasters, and provide for recovery of damaged or destroyed public and private facilities – all of which are activities parallel to the federal assistance the Act authorizes for major disasters. The Act also provides (section 201(d) for Federal grants for up to half the cost of improving, maintaining and updating State disaster preparedness plans, including mitigation activities, but these so-called improvement grants may not exceed in any year $50,000 per State. The State plans subject to improvement were to be developed with the assistance of one-time, $250,000 per-State grants and were to be “comprehensive and detailed,” but no conditions were established concerning the subsequent improvement grants. FEMA regulations governing these technical assistance and improvement grant authorities (44 CFR Part 300) add little detail to the statute and appear essentially perfunctory, except for a requirement that improvement grants result in “something measurable.”

(C) The Federal Civil Defense Act. This has served as the basis for FEMA grants covering both equipment, including facilities, and salaries and expenses in “civil defense” preparedness. This may include preparation for attack or natural disasters. Grants are generally limited to 50 per cent of costs. They are not subject to a fixed per state limitation as required under the Stafford Act, but funds used for administrative (salaries and expenses) grants are allocated among the States by formula, pursuant to some generally-worded statutory requirements, sufficiently flexible to allow the agency to direct funds substantially as it determines most appropriate. While the Act requires that States to receive these grants have approved civil defense plans, and sets certain requirements for these plans, the requirements are quite general, so long as the plan is in effect in all political subdivisions, is administered by a single State agency and provides for employment of a full-time civil defense director or deputy director. [Lost in history is the fact that both State merit staffing and loyalty oaths track to the language of the Federal Civil Defense Act and its administration. Oddly despite the fact that an opinion of OLC of DOJ indicated that the loyalty oath provision of the FCDA should not be enforced, and that opinion was furnished to the HSAC staff during discussion of FCDA repeal, the loyalty oath language survives and is now included in the Stafford Act. Additionally, after a large-scale RIF of FEMA Regional Staff and downgrades in the mid-1980’s FEMA no longer gave detailed review or threatened cessation of grants under the FCDA for non-compliance with FEMA’s regulatory requirement of an approved plan]

As noted earlier, the Act requires that funds granted for “civil defense” be used for natural disaster preparedness in a way that is consistent wit and does not detract from preparedness for enemy attack. FEMA’s formal regulations (44 CRF Part 312) include provisions designed to reflect this requirement, but these are so generally worded that they probably leave control of the limitation largely to FEMA’s own year-to-year budgetary and administrative priorities.

b. Single agency authorities.

Many if not most if not most agency authorities relating to disasters and emergencies are independent of any statute, such as the Stafford Act, which contemplates a coordinated or multi-agency response. In some instances, the agency authority may make no reference to the Stafford Act or other disaster authority; it may be completely independent. In other instances, the agency may have both an authority to act in the relation to a Presidentially declared Stafford Act emergency or disaster and also authority to act independently according to a determination of the agency head. This is true, for example, of Small Business Administration and Department of Agriculture loans.

Some of these authorities have historical ties to the general Federal disaster legislation now embodied in the Stafford Act. Both Small Business Administration and Farmers Home Administration disaster loan programs, for example, were provided for in the Disaster Relief Act of 1970. However, these and many other authorities can also be invoked independently of the Stafford Act. Thus, an event that is determined not of sufficient magnitude to be a major disaster under the Stafford Act may nevertheless be a disaster for the purpose of Department of Agriculture loans. Similarly, a riot considered to be only an “emergency” under the Stafford Act because the damage was principally caused by other than a fire, flood or explosion could nevertheless be an “other disaster” for the purpose of loans by the Small Business Administration.

And, as already indicated, an agency authority that can be exercised independently may also, by agreement or Presidential direction, be employed as part of a coordinated agency effort under the Stafford Act or other legislation contemplating such an effort.

Among the independent agency authorities are the authorities of:

-The Department of Transportation for assisting repair or reconstruction of highways, roads and trails seriously damaged by a “natural disaster over a wide area” or “catastrophic” failure from “any external cause.” (23 U.S.C. sec. 125). [See Title 49 of the United States Code for the recodified Transportation Laws]

-The Department of Agriculture for assistance to those engaged in farming, ranching or aquaculture in areas affected by a “disaster” (7 U.S.C. sec. 1961), and to agencies helping migrant or low income farm workers unable to work, stay or return home because of “a local, State or national emergency or disaster’ (42 U.S.C. sec. 5177a).

-The Department of the Army, Corps of Engineers, for emergency response to “any natural disaster,” for flood fighting, rescue and repair, and emergency shore protection (33 U.S.C. sec. 701n).

-The Department of the Interior, Bureau of Reclamation, for assuring the continued operation of reclamation projects affected by “unusual or emergency conditions,” including acts of God, the public enemy, fires, floods, droughts, epidemics and strikes (43 U.S.C. secs. 502, 503).

-The Small Business Administration for loans for repair, rehabilitation or replacement of property, real or personal, damaged as a result of “natural or other disasters,” for refinancing any mortgage or other lien against a totally or substantially damaged home or business concern, or for assisting businesses that have suffered substantial economic injury because of “a disaster, as determined by the Administrator” of SBA. (15 U.S. C. sec. 636)

-The Department of Defense for use of personnel, equipment or resources in connection with various kinds of emergencies involving civil disturbances, rebellions, or protection of military or other federal installations (see generally 32 CFR sec. 213.10). Also the President has statutory in certain circumstances when it is impracticable otherwise to enforce the laws to call upon the armed forces. (10 U.S. C. 332, 334).

c. Multi-agency systems other than for Presidential emergencies

1) Multi-agency authorities in agencies other than FEMA

There are several statutes calling for a coordinated, multi-agency response to specific kinds of disasters that do not depend upon the Stafford Act authorities. Thus, under the Comprehensive Environmental Response and Liability Act of 1980, the Federal Water Pollution Control Act and implementing Executive orders, the Environmental Protection Agency or Coast Guard [now part of DHS and at the time of preparation of this document in its original form by John Bell part of DOT] are to coordinate federal actions in response to hazardous substance or pollution or contaminant releases affecting the environment.

2) FEMA’s Authorities.

(A) FEMA’s Authority over other programs independent of the Stafford Act.

(I) In general: Legal theory. FEMA in theory, under Executive order 12148, has very broad authority, as described above, to “establish Federal policies for, and coordinate, all civil defense and civil emergency planning, management, mitigation, and assistance functions of Executive agencies.” (Emphasis added). This includes authority over both civil defense and civil emergencies, defined as “any 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.”
The order cites the President’s powers under the Constitution, as well as FEMA’s various statutory civil defense and disaster authorities. It may thus be considered to be broader than specific authorities delegated to FEMA under the Stafford Act ‘to direct”, agencies to act under that act. It extends, in theory at least, to authority over the various independent authorities described above. It could, therefore, in theory be used to establish a multi-agency response system or several such systems outside of the Stafford Act.

But FEMA’s authority is in any event subject to exceptions created under subsequent statutes or Executive orders. Thus, FEMA’s authority to act in connection with environmental emergencies has in effect been limited by the Federal Water Pollution Control Act, the Comprehensive Environmental Response and Liability Act of 1980, as carried out under Executive orders 12580 and 12777 that designate EPA and the Coast Guard as agencies with primary authority. See footnote 12. [FEMA was offered the lead under CERCLA, a statute that vest authority in the President and is then delegated, but the lead was rejected by then FEMA Director John Macey as not being an “Emergency Program.”]

Also, whatever legal authority FEMA may have over the programs of other agencies is of course limited in the case of Presidential emergencies, as described below.

(II) Practical limitations. In practice, absent direct Presidential intervention in its support, FEMA’s authority or power over other agencies with independent disaster or emergency authorities will normally depend upon FEMA’s ability to pay or reimburse the agencies for what they do. FEMA has specific reimbursement authority only under the Stafford Act “for expenditures under this ACT.” This ability to reimburse other agencies is central to the Federal Response Plan. Under the Plan and in any other instance when the Stafford Act is invoked, it thus becomes important to determine whether the action of another agency can be considered as having been taken “under this Act” or whether it has been taken under that agency’s independent authority. This is discussed further below in connection with FEMA’s authority to coordinate under the Stafford Act.


B) FEMA’s Authority in connection with earthquake and nuclear power plant hazards.

FEMA under Nuclear Regulatory Commission authorizing legislation and Executive orders 12241 and 12657, and under the Earthquake Hazards Reduction Act, has responsibilities for developing coordinated plans to respond to nuclear power plant emergencies and earthquakes. See Footnote 13. In neither of these is the authority specifically tied to the Stafford Act, but under both, in the event of an actual emergency, operations would probably require use of Stafford act “emergency” authorities, or, perhaps, some claimed Presidential authority under the Constitution. For example, in the event of a radiological emergency at a power plant not covered by a State or local emergency plan, Executive order 12657 requires FEMA to assume “any necessary command and control function or delegate such function to another agency.” To the extent this may require on-the-ground operations, it is not clear how FEMA would be legally able to carry it out without drawing upon some authority other than that provided by the order itself. See footnote 14. [See Editor’s previous discussion of Stafford Act and Price-Anderson Act. Also E.O. 12657 cites the now repealed Federal Civil Defense Act as authority.]

C) FEMA’s Authorities in connection with the Stafford Act.

This part of the paper discusses FEMA’s basic authorities under the Stafford Act in relation to emergencies and disasters other than national security emergencies or other events for which the President may assume direct responsibility.

(I) Other Federal Statutes Referring to the Stafford Act. A Presidential declaration of emergency or disaster under the Stafford Act may make available certain Federal authorities outside of the Stafford Act. These may be considered part of the general system of that Act, and FEMA’s action in recommending a Presidential declaration has the effect of making these authorities available; they are not, however, necessarily subject to FEMA’s control unless covered under some form of prior agreement or understanding.

An instance of this kind of statute would be the Cranston-Gonzalez National Affordable Housing Act that authorizes HUD to provide increased housing assistance (section 8 vouchers and certificates and section 8 moderate rehabilitation assistance) and to direct certain recaptured community development funds to families or areas affected by “a major disaster declared by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act.” See Footnote 15. Another example would be the special authority of the Small Business Administration to make loans to a private college or university damaged by a “major disaster” under the Stafford Act without regard to the usual requirement that credit be unavailable from private sources (15 U.S.C. sec. 636 (f)).

In addition, even when they do not specifically depend upon references to Stafford Act emergencies or disasters, certain agency authorities by prior agreement or practice may be linked to the Act. This would be true, for example, of both the Small Business Administration and Department of Agriculture Disaster loan programs, both of which were at one time authorized in general disaster legislation preceding the current Stafford Act. [Actually preceding the Disaster Relief Act of 1974, Public Law 93-288]

(II) Effect of other agency authorities on FEMA’s powers under the Stafford Act.

If other federal agencies act or can act in response to a disaster under independent authority, what effect should this have on FEMA’s authority under the Stafford Act? Sections 401 and 501(a) of the Act state that a condition for requesting a declaration of major disaster or emergency is a finding that a response to the event is “beyond the capabilities of the State and affected local governments.” These sections do not, however, contain any language relating a decision to provide assistance under the Stafford Act to other assistance that may be available from other Federal agencies under other statutory authorities. FEMA’s regulations, however, make the existence of other, independent Federal authorities a consideration affecting FEMA’s ability to act under the Stafford Act, depending upon whether the event is considered an emergency or a major disaster.

Major Disasters. FEMA’s published regulations (44 CFR Section 206.37 (c (1)) provide that, among a variety of other matters, FEMA will consider “assistance available from other federal sources” in determining whether to recommend a major disaster declaration. Thus, in disaster situations FEMA may or may not give significant weight to the fact that another federal agency may have independent authority to respond or may already have acted in response to the situation.

Emergencies. If, however, a governor requests only a declaration of emergency, or the situation does not appear to allow consideration of more than an emergency declaration, FEMA under its regulations (44 CFR section 206.37(c (2)) states that it will recommend the declaration only “after it has been determine that all other resources and authorities . . . are inadequate” [Emphasis added] Clearly, this language reaches other Federal resources. If the incident is one affecting a matter of primary Federal responsibility, the regulations (section 206.37(d) further state that an emergency declaration will not be recommended if “the authority to respond is within the jurisdiction of one or more Federal agencies without a Presidential declaration”’; under this language, if another agency were thought to have jurisdiction FEMA might consider itself bound not to act even if that other agency’s authority was in some respects inadequate. [It should be noted that the only existing budge execution authority for mass care, mass shelter, mass evacuation, mass medical services is pursuant to the Stafford Act. While other agencies may have related disaster authorities they have failed to seek an appropriation for contingencies that might arise and for which they are authorized by statute or the President to respond.] Another, somewhat confusing subsection of the regulations declares, generally, that “It is not intended for an emergency declaration to preempt other Federal agency authorities and/or established plans and response mechanisms in place prior to the Stafford Act (44 CFR 206.35 (d)).

These regulation provisions relating to the emergency authority apparently are based upon the legislative history of the 1988 amendments to the Stafford Act that revised the Act’s emergency authorities. See Footnote 16.

(III) Disaster and Emergency Response Authority under the Stafford Act.

The following parts of this section discuss various specific aspects of FEMA’s response and recovery authorities under the Stafford Act.

(i) Actions in advance or in Anticipation of a Major Disaster.

Generally, in using the Stafford Act, FEMA and other agencies may respond to events only after they have been declared by the President to be “major disasters” or “emergencies.” The declarations are to be based on a governor’s request, except when an emergency relates to a “subject area for which . . . the United States exercises an exclusive or preeminent responsibility and authority.”

There are, however, a number of specific or implied exceptions.

Use of other authority. The Stafford Act does not preclude agencies from using any independent authority they may have to provide assistance in anticipation of a disaster. FEMA itself has authority pursuant to the Federal Civil Defense Act to “procure . . . lease, transport [and] store materials and facilities for civil defense” that could apparently be used for propositioning purposes.

Preparedness authority. Section 201(a0 of the Stafford Act authorizes a program of Federal preparedness that “includes” certain elements. None of these specifically refers to positioning of resources or damage assessments to determine whether a major disaster has occurred. But it would be illogical to consider that one can prepare for a disaster that may be remote but not one that is imminent. Thus, depending upon fund availability, this provision may provide at least a limited basis for advance action. As explained below in connection with “Coordination” authorities, this would include appointment of coordinating officers.

Damage assessment. Either in advance of a governor’s request known with reasonable certainty to be coming, or before a decision has been made upon a request, FEMA and other agencies have implied authority to take whatever actions are appropriate to determine whether, in their judgment, the circumstances justify or will justify a Stafford Act response. This could include making preliminary assessments of the general level of damage and evaluating, on the scene, State and local capabilities.

Food stocks. Under the Stafford Act FEMA may – and, indeed, is required to - - have adequate stocks of food “ready and conveniently available” and thus can acquire and position food in anticipation of a governor’s request. A related provision – apparently permanent - - in the fiscal 1993 appropriation act, Public Law 102-389, allows FEMA to “store, stockpile or access” surplus Department of Defense “Ready-to-eat” meals.

Communications. The Stafford Act permits FEMA to establish temporary communications systems, not only during but “in anticipation of” an emergency or major disaster, an authority it would also have pursuant to the Federal Civil Defense Act and Executive order 12472. [Note that one of the authorities cited for E.O. 12472 is the Federal Civil Defense Act now repealed by Public Law 103-337]

Grass or forest fires. Another specific Stafford Act authority provides for assistance to States, in the form of money, equipment, supplies or personnel, to suppress forest or grass land fires that “threatens” to become a “major disaster.”

Emergency work. The Stafford Act in its 1988 enactment provides “[d] uring the immediate aftermath of an incident which may ultimately qualify for assistance” as either an emergency or a disaster, at a governor’s request, Department of Defense resources may be used for the purpose of performing, for not more than ten days, “emergency work” – defined to “include” clearance and removal of debris and wreckage and “restoration of essential public facilities and service.” This provision parallels an earlier, independent authority granted to the Army Corps of Engineers in 1986 (Public Law 99-662)
To perform similar services when the Corps is already carrying on emergency work in an area, and the governor of the affected State then submits a request for a declaration of emergency or major disaster. (33 U.S.C. 701n).

Declaration of emergency at governor’s request. The Act defines “emergency” to include any occasion or instance in which action is “needed . . . to lessen or avert the threat of a catastrophe.” See Footnote 17. Because a request for an emergency declaration requires less documentation and should, generally, be more quickly obtained than a declaration of major disaster, or in the case of an event of spreading severity, it should be possible to deploy federal resources under the emergency authority as a way of anticipating - - or perhaps avoiding – a major disaster; the disaster declaration could, in most cases, be declared later if the situation required, provided that the damage resulted either form natural causes or from fire, flood or explosion produced by human action. See Footnote 18.

Federal emergencies. If an emergency event falls within an “area of primary Federal concern” response action can then be taken in advance of or without a governor’s request. If the event otherwise qualified as a major disaster, the governor of the affected area could subsequently request a disaster declaration.

(ii) Coordination of Federal actions.

As pointed out earlier, FEMA in large measure is a coordinating agency. This is true of its disaster planning relief responsibilities as well as those having to do with overall emergency and war preparedness. However, while “coordination” is a term often used in federal laws, it is rarely defined. Under the Stafford Act, the term is used only to describe on-the scene activities. FEMA’s role as a headquarters agency is not specifically addressed.


Local coordination.

Statute and regulations. The Stafford Act requires that there be appointed an on-the-scene “Federal coordinating officer” “immediately upon the declaration of a major disaster or emergency,” but the Act does not specify just what authority a coordinating officer will have in relation to other Federal agencies, other than generally requiring that he or she “make an initial appraisal of the types of relief most urgently needed, “ “establish field offices” and “coordinate the administration of relief,” including activities of State and local governments and private agencies which agree to operate “under his advice or direction.” Also, there is a general catch-all category directing the coordinating officer to “take other action . . .as. necessary to assist local citizens and public officials in promptly obtaining assistance to which they are entitled.”

In describing the role of the Federal Coordinating Officer, (FCO) the regulations generally follow the statutory language, except that they say the FCO “shall undertake appropriate action to make certain that all . . . Federal agencies are carrying out their appropriate disaster assistance roles under their own legislative authorities and operational policies.” This implies that the FCO should have a working knowledge of what other agencies can and cannot do under their laws, regulations, and policies. [Formal training of FCO’s was intensified under Director of FEMA Witt. The editor of this document taught several groups of FCO trainees on legal authorities of other agency and how to resolve issues arising under the authority of legal schemes other than the Stafford Act, as for example the principal of statutory construction that Congress is presumed to know its own mind as statutes should be construed if at all possible to not conflict. In the event of a direct and irreconcilable conflict typically the statutory language later in time controls.]

State coordination. The Statute also requires that a “request” be made to the Governor to appoint a State coordinating officer to coordinate State and local disaster assistance efforts with those of the Federal government. FEMA’s regulations (44 CFR sec. 206.41 (c) make this mandatory – “the Governor shall designate” –and also require the Governor to designate a Governor’s Authorized Representative” “to administer Federal disaster assistance programs on behalf of the State and local governments and other grant and loan recipients.” (44 CFR Sec. 206.41(d))

Advance action. The statutory provisions just described require that certain actions be taken “immediately upon declaration.” If they were not in the law, it would nevertheless be proper to provide for Federal and State coordinating representatives as part of the disaster preparedness provisions of section 201 (a). It should therefore also be possible to designate coordinating officers in advance of a declaration, when this appears to be necessary or appropriate.


Headquarters and regional coordination.

Theory: Directives. The Act is, of course, written in terms of Presidential authority and assumes or, in many instances, expressly provides that the President may “direct” Federal agencies to act. This authority has been delegated to FEMA, whose regulations accordingly provide in various places that a FEMA Associate Director or Regional Direct may “direct” or issue “directives’ to other Federal agencies,“ although reimbursement of other agencies is made to depend upon whether they have provided “requested assistance.” (44 DFR sec. 206.8(c). See Footnote 19.

Practice: Reimbursement: In practice, whether in a statute or Executive order, a grant of power enabling a Federal agency to “direct” action by other agencies of similar, or perhaps higher rank, is rarely effective, in itself. Coordinated action rather usually depends upon the expressed immediate interest of the President or upon an advance agreement or understanding among the agencies in question, as expressed either through a multi-agency plan or individual agency agreements. If agencies have independent sources of funding that is to be used for disasters, they may be willing to enter into such an agreement or understanding without securing payment from FEMA. In general, however, the best way of obtaining an agency’s agreement to participate in a coordinated effort is to have the ability and funds to pay or reimburse that agency for what it is asked (or “directed”) to do.

While authorizing a “program” of “disaster preparedness that utilizes the services of all appropriate agencies,” the Stafford Act does not specify just how those services are to be obtained. It does not require the agencies to develop a specific plan or plans, such as those required under the Federal Water Pollution Control Act and the Comprehensive Environmental Response, Compensation and Liability Act, or the Earthquake Hazards Reduction Act. See Footnote 20. The promise of reimbursement thus provides FEMA with an inducement it needs to develop a document like the Federal Response Plan, as well as memoranda of agreement or understanding with particular agencies.

The plan or agreement assumes, of course, that agencies can agree to do what they are asked or directed to do - -that is, that they have legal authority as well as funds. The Stafford Act specifically authorizes Federal agencies – not just FEMA – to provide what are categorized as “essential services” and, through authority granted to the President, to take certain other actions, such as clearing debris and paying unemployment benefits. However, it does not necessarily authorize all actions that might be considered desirable or helpful in responding to a disaster or providing disaster assistance, even though these might be provided for in an agreement or plan that has been developed under the Act.

Since, as already described above, many agencies have independent authority to act in connection with a disaster, they may act under that authority rather than the Stafford Act in responding to an emergency or major disaster declared under the Stafford Act. But FEMA’s authority to reimburse other agencies is limited to their expenditures made “under this Act.” Thus, if an agency is considered to have acted under its independent authority, even though its action is connected with a declared major disaster or emergency under the Stafford Act, FEMA not only considers that it need not reimburse that agency but, under its regulations, precludes itself from doing so (44 CFR Sec. 206.8(b)) See Footnote 21.

Funding coordination. The effectiveness of these advance understandings on a particular occasion will commonly depend upon whether FEMA has or can be expected to have necessary funds and also upon whether the other agencies concerned have funds that can be used in advance of reimbursement. The Department of Defense has been appropriated funds to be used specifically in advance of reimbursement from other agencies or State and local governments when responding to natural or manmade disasters. (Public Law 101-165) Most agencies, however, depend upon advance assurances of FEMA funding, and, while FEMA may be able to divert funds from prior disasters to fund current ones in expectation of deficiency appropriations, this will not ordinarily cover the situation of a very large disaster.

Duplication of benefits. A specific problem in coordination arises from the Stafford Act’s prohibition of duplicative benefits. For administrative purposes, in connection with its own provision of assistance to individuals and families, FEMA by regulation recognizes a “delivery sequence” of programs that has the effect of generally requiring that determinations of eligibility or entitlement follow a specified order, beginning with assistance provided by voluntary agencies, and continuing through insurance, temporary housing, SBA loans, FEMA funded family and individual grants, and volunteer agency “additional assistance” programs and the Cora Brown fund. (44 CFR section 206.191). The regulation apparently assumes that each agency, in most instances, will decide eligibility or entitlement separately, according to its order in the sequence. There appears to be no mechanism that would allow one agency to decide eligibility or entitlement under another agency’s authority.

(iii) Relation of Emergency and Major Disaster provisions.

The Stafford Act provides generally for two classes of events – emergencies and major disasters. The two are distinguished in part because some kinds of events that qualify as emergencies cannot qualify as major disasters because they are caused by human action or inaction. This is so no matter how serious the consequences may be. They also differ in that the relief or benefits that can be provided are much more extensive if an event is declared to be a major disaster, rather than an emergency. There are also differences, at least under FEMA’s regulations that depend upon whether assistance under other federal programs is available. Also, there is an overall $5M limit on expenditures in connection with any one emergency, although the President can exceed this if he or she determines that it is necessary to do so to meet an immediate need. No similar dollar limitation applies to individual major disasters. [A close reading of the dollar limitation indicates that it is simply a notice to Congress requirement not a report and wait requirement. Thus, no dollar cap actually exists as long as notice is given to Congress.]

In some instances, an event originally declared to be an emergency may later be declared a major disaster. However, this is not always possible. In other instances, an event that, under FEMA’s regulations, could not be declared an emergency may nevertheless be declared a major disaster.

These various complications are explained below:

Casual events. If it causes sufficient damage to be beyond State and local capacity to respond, and if the State agrees to pay its requisite share of costs, any natural event may be declared a major disaster. However, if the damage results from human action (including negligence or inaction), then no matter how severe its effects, it cannot be declared to be a major disaster unless those effects come about through fire, flood or explosion. [It should be noted that no Presidential disaster declaration has ever been made on account of riots or civil disorders. Thus, the 1992 Los Angeles riots were declared because of fire.]

No such distinction in causes applies to emergencies. An emergency is defined as “any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe . . .”

In the case of major disasters, the definition –as revised in 1988 –makes major disaster benefits unavailable for a variety of events. These include immigration influxes –a point of earlier dispute [between the Senate and FEMA during the Cuban Mariel Boatlift in 1980]—and also, to the extent that they do not result from fire or explosion, civil disturbances and various kinds of radiological accidents the problem being that an unplanned radiological release might not be an explosion] even though FEMA has specific responsibilities for preparedness planning and plan execution in connection with possible accidents at nuclear facilities. [NRC and FEMA have jointly issued NUREG-0654/FEMA REP-1 that lists planning requirements and assuming that a release impacting the 10 EPZ and the 50 plume zone has occurred. These perimeters are based on EPA and FDA PAGs (Protective Action Guidance)]. Oil spills apparently have not been regarded as ‘floods” and so cannot be considered major disasters unless they result form a natural event, like a tidal wave or storm. National Security Emergencies [See E.O. 12656, as amended], however severe, will not necessarily qualify, legally as major disasters. And a situation exists in which FEMA’s very broad “preparedness” authorities allow it to assist States and localities to prepare for events to which FEMA may not be able to adequately respond. See Footnote 22.

Effect of other agency programs. As already noted, FEMA considers that an emergency should generally not be declared when other federal programs are available. The regulations state that an emergency declaration will be recommended “only after it has been determined that all other resources and authorities available to meet the crisis are inadequate.” The availability of other federal disaster assistance programs is only one consideration among others in determining whether to recommend a declaration of major disaster. (44 CFR 206.37 (c (1) & (2))

Comparison of benefits. A Federal coordinator is to be appointed, and Federal support teams organized, whether an event is categorized as an emergency or major disaster. Certain other benefits are the same for both. These include:

--emergency assistance to save lives, protect property and preserve public health and safety;

--technical and advisory assistance to State and local governments;

--debris removal;

--providing mass care, emergency medical care, food, and medicine and other emergency assistance through federal agencies or state and local agencies;

--assistance in meeting temporary housing needs;

--emergency communications;

--up-to-ten day use of the Department of Defense for emergency work in advance of the declaration.

For emergencies, there is also a generally worded provision of somewhat uncertain significance, section 502(b), stating that “whenever other authorized assistance is inadequate,” emergency assistance may include “efforts to save lives, protect property and public health and safety, and lessen or avert the threat of catastrophe.”

But many benefits that might be authorized, depending on needs and circumstances, in connection with a major disaster cannot be provided under an emergency declaration:

--federal procurement of construction materials;

--federal agency repair or reconstruction of federal facilities in advance of an appropriation;

--unemployment benefits;

--individual and family grants;

--distribution of food coupons;

--grants for repair, restoration or replacement of public or private nonprofit facilities;
--legal services;

--professional crisis counseling;

--emergency public transportation; and

--contributions for hazard mitigation measures.

(iv) Administration of major disaster benefits.

Determining benefits to be provided.

A declaration of a “major disaster” does not necessarily make available all major disaster benefits. Generally, the Stafford Act merely authorizes various kinds of assistance but does not specify the conditions under which that assistance should be provided. The regulations (44 CFR sec. 206.40(a) ) leave the determination of the kinds and types and extent of assistance to be provided to the “discretion” of the Associate Director, unless the benefits are specified in the President’s declaration.

State agreement.

Although not required or mentioned in the statute, the regulations require, as a condition of assistance under a declaration, that the governor for the State enter into a legally enforceable agreement specifying, among other things, the period for assistance, the type and extent of Federal assistance, and the funds the State will provide. The regulations (44 CFR 206.44) provide that “No FEMA funding will be authorized or provided to any grantees or other recipients, nor will direct Federal assistance be authorized, until such time as this agreement for the Presidential declaration has been signed, except where it is deemed necessary . . . to begin the process of providing essential emergency services or temporary housing.”


Need that Governors request specific kinds of assistance.

Several provisions of the Stafford Act provide for requests or agreements by the Governor or other official in addition to the request for a declaration of emergency or major disaster. Thus, a Governor’s request is required before Department of Defense resources can be used for emergency work in advance of a declaration. Also, under section 407(a), debris removal can be undertaken only after the affected State or local government has given “an unconditional authorization” and agreed to indemnify the Federal government against claims by private property owners.

In addition to these provisions, and the general regulations requirement for an agreement, FEMA’s General Counsel this January [January 15, 1993. It should be noted that the opinion was drafted to defend FEMA’s position that it could not act prior to its receipt of the Governor’s specific requests in Hurricane Andrew. The FEMA position was that a formal amendment of the Stafford Act was required. To date no such amendment has been requested or occurred. It is arguable that the Stafford Act amendments in the Post-Katrina Emergency Management Reform Act correct this deficiency] took the position that all emergency assistance under the Act – sections 402, 403 and 502 –must be specifically requested by a governor. This opinion appears to be based on language in the Stafford Act, in legislative history and prior statutes that refer to disaster relief as a program of “assistance” that “supplements” State and local government efforts, as well as upon general concepts of federalism. The specific question at issue was whether FEMA could direct the Department of Defense to provide active duty military forces after a declaration but before specifically requested by a Governor. See Footnote 23. [These issues also arose during the Federal response to Hurricane Katrina in 2005]

d. Presidential emergencies.

In any disaster or emergency, the President may transform the character of the Federal response and relief effort by assuming direct control, either in person or through a personal representative, or through officials or organizations closely associated with Presidential actions.

Ad hoc Presidential participation. The President may act, ad hoc, in response to the circumstances, but without any advance plans or systems. This has been done on a number of occasions. It of course raises questions of the relationship between the person or organizations exercising Presidential authority and those who would be authorized to act without it. [The editor interprets the words “without it” as meaning “acting under other authority than as a Presidential representative.”]

National System for Emergency Coordination. Two documents, one relatively informal and the other an Executive order, contemplate systems of Presidential intervention. The first, in the form of a January 1988 MEMORANDUM FOR THE DOMESTIC POLICY COUNCIL, purports to establish a “National System for Emergency Coordination.”

This memorandum applies to what are described “extreme” emergencies. These are not further described or defined. The memorandum generally provides that “interagency functional groups” will be established “to support and coordinate relief operations . . . consistent with those called for in existing emergency plans.” These groups are organized according to various categories of emergencies, with “lead agencies” designated according to “recognized leadership roles, resources, inherent authorities, and/or relevant expertise.” The memorandum states that in an extreme emergency the President “may” designate a National Coordinator as his representative, who will “ordinarily” be chosen from designated lead agencies. [It should be noted that in January 1988 no Federal Response Plan existed and during that year the Response Plan for Response to a Catastrophic Earthquake was morphing into a Natural Disaster Response Plan that in turn morphed in the Federal Response Plan in May 1992 approximately 100 days before Hurricane Andrew]

FEMA under this system is designated as a lead agency only for natural disasters. Also, whenever the President “activates the system,” FEMA is to inform the Governors of the Federal government’s plan of action.

Despite its stated “principle” of consistency with “current emergency plans,” this memorandum apparently assigns to FEMA a smaller role than that contemplated by Executive orders 12148 and 12657 (nuclear power plant emergencies). [E.O. 12657 was not signed until November 18, 1988, the same date E.O. 12656 was issued. The Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707 was signed into law on November 23, 1988.] What effect it might have, or might have had, is unclear. It is not in form a directive. And when it was transmitted by the Chairman Pro Tempore of the Domestic Policy Council, agency heads were merely “encouraged” to ensure that they would be able to carry out “their respective operational responsibilities.” [The explanation for the confusion is simple. The NSEC was a FEMA initiative because the then Director Julius Becton was trying to simplify the FEMA portfolio and focus only on natural disasters. An effort welcomed by portions of the FEMA bureaucracy and essentially adopted as a NAPA recommendation in March 1993. That this effort to refine FEMA’s portfolio was unsuccessful remains for analysis in a separate effort. It suffices to state that events were soon to indicate in the form of the impact of Hurricane Hugo and the Loma Prieta Earthquake that even natural disasters were perhaps beyond FEMA’s capabilities long before Hurricane Katrina.]

National Security Emergencies. Executive order 12656, already described in this paper, establishes a system of Presidential control, through the National Security Council (NSC), for emergencies affecting national security, that are specifically described to include natural and technological disasters as well as hostile action. FEMA, as already indicated, is designated as an advisor and support agency to the NSC. [The principal Executive order revoked by E.O. 12656 is E.O. 11490 from 1969 that was designed for a system led by the Office of Emergency Preparedness in the Executive Office of the White House. E.O. 12656 was issued after a eight year drafting effort. It has been amended several times and is now under active revision by the White House Office of Homeland Security in accordance with the Katrina report issued by that office.]

This order is apparently comprehensive in the that it contains many and detailed assignments to most major agencies. It is, however, entitled “Assignment of Emergency Preparedness Responsibilities” [Emphasis added]. It does not describe a procedure or system for actually carrying out Federal actions in an emergency, except to direct that “plans and procedures will be designed and developed to provide maximum flexibility to the President for his implementation of emergency action.” Thus, even if FEMA is designated to assist the NSC in its preparedness activities, it does not necessarily follow that it would have a similar role in execution once an emergency occurred. And, as earlier indicated, Executive order 12656 does not in itself provide agencies with the authority they may require to carry out their assigned responsibilities.

[This last conclusion is based on specific language in the order that states as follows:

(a) Section 102(b) This Order does not constitute authority to implement the plans prepared pursuant to this Order. Plans so developed may be executed only in the event that authority for such execution is authorized by law. [Extract E.O. 12656]

FOOTNOTES

1. “Freely delegated” excludes the common kind of statutory provision that places authority in an agency head but instructs him or her to “act through” a designated subordinate.

2. But see memorandum, Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, to Rudolph W. Giuliani, Associate Attorney General, Nov. 19, 1982, p.5, note 7, that explains “some confusion” in the Office of Legal Counsel’s efforts to reach a consistent conclusion on whether the general disaster relief legislation covers events “other than those usually thought of as ‘natural.’”

3. FEMA legal staff does not regard this as a permanent authority. However, section 109(b) of Public Law 96-295 requires that the Nuclear Regulatory Commission establish by rule a procedure for approving licenses only after approving a State or local radiological emergency response plan “in consultation with the Director of the Federal Emergency Management Agency.” This appears to be a permanent requirement in that it does not set a time limit on the applicability of the rule.

4. Not listed are statutes that merely make FEMA a member of some board, commission or task force, such as the National Dam Safety Review Board 933 U.S.C. 467h) or the Market Impact Committee created to advise National Stockpile Manager under the Strategic and Critical Materials Stock Piling Act (50 U.S. C. 98h-1, as amended by sec. 3314 of Public Law 102-484, 106 Stat. 2654).

In addition, various statutes establish FEMA organizational structures or assign internal responsibilities, These include general statutes, such as the Inspector General Act. More specific statutory provisions relating to internal organization include the “not more than four” Associate directors subject to Senate confirmation provided for by Reorganization Plan No. 3 of 1978; the United States Fire Administration, its Administrator and the National Academy for Fire Prevention and Control; and the position of Federal Insurance Administrator. The Earthquake Hazard Reduction Act requires that FEMA’s planning and coordination responsibilities under that Act be carried out by a “principal official . . .at a level no lower than Associate Director; and the Urban Property Protection and Reinsurance Act requires that “FAIR Plans” be reviewed through an “Office of Compliance under the Federal Insurance Administrator.” Public Law 102-389, the Veterans-HUD-Independent Offices appropriation act for fiscal year 1993 requires that a hazardous materials unit be placed under the United States Fire Administration. [The Homeland Security Act of 2002 abolished all Presidentially Appointed Senate Confirmed positions in FEMA effective March 1, 2003 and also abolished FEMA’s organizational structure. The position of United States Fire Administrator was recreated by legislation (Section 101 of Public Law 108-169, 15 U.S. C. 2201 note) in December 2003 but not the United States Fire Administration. That organization has been administratively recreated and as of March 31, is again be in FEMA. The new position of Administrator of FEMA created by the Post-Katrina Management Reform Act also is in effect as of that date.]

5. No opinion is expressed on just what it means “to coordinate.” See memorandum, George W. Watson, Acting General Counsel, to Wallace E. Stickney, January 11, 1991, p.3:

FEMA has perennially struggled to make sense of its role as coordinator of Federal emergency response activities. There is no generally accepted meaning of the term within FEMA and no clear understanding of how other Federal agencies view FEMA’s coordinating role. Part of the difficulty is inherent in the term—it can mean many things. However, I suggest that a suitable and sensible interpretation of the role is that FEMA should be a facilitator.

6. Presidents have of course acted from time to time in disasters or emergencies to appoint personal representatives to handle emergency situations. This action could bolster or limit FEMA’s authority, or place it under effective supervision of some other official. The President’s power to act in this way has been officially stated on several occasions. For example, in the message explaining Reorganization Plan No. 1 of 1973 (5 U.S.C. Appx.) President Nixon, referring to disaster relief authorities, stated “In emergency situations calling for rapid interagency coordination, the Federal response will be coordinated by the Executive Office of the President . . .” And a Presidentially approved “National System for Emergency Coordination” provides that in an “extreme emergency” the President may appoint a “National Coordinator” who might but would not necessarily be the FEMA Director. (Memorandum, 19 January 1988, Edwin Meese III for the Domestic Policy Council). This question is discussed further at the end of this memorandum under the heading “Presidential Emergencies.”

7. This listing is not necessarily exhaustive. The order itself (Part 17) lists twelve primary FEMA responsibilities. Those mentioned in the text of this paper do not include FEMA responsibilities to “coordinate with” or “coordinate among” other agencies. Of course, as suggested in footnote 5. above the term “coordinate” in itself has no set meaning; it may mean much or little, depending upon circumstances.

However they are interpreted, FEMA’s authorities under Executive order 12656 appear to have been considerably reduced from those granted to it under the predecessor Executive order 11490 [1969] That order, among other things, made the Director of FEMA responsible for determining national preparedness goals and policies for performing agency preparedness functions. It also required that the Department of Defense perform many of its functions jointly with FEMA or in cooperation with FEMA. [The Director of FEMA had been substituted in 1979 for predecessor organizations and this particular case the predecessor organization was the Federal Preparedness Agency in GSA that had been a partial successor to the Office of Emergency Preparedness in the Executive Office of the White House.]

8. See Public Law 102-522, section 102, “Priority Activities of the United States Fire Administration,” 106 Stat. 3410. The discussion in the text relates only to the relationship of these authorities to other FEMA programs; it is not intended to suggest that a different focus would necessarily be desirable.

9. This order fixes responsibilities; the statutes it cites – including the National Security Act and the Defense Production Act – would not appear to provide FEMA with mobilization authority in connection with a non-war disaster. The same is true of Executive order 10480 that refers to the Defense Production Act only. If a mobilization of productive national resources is required in response to the non-attack disaster of great magnitude, the most persuasive authority would probably be the Constitutional power of the President. [E.O. 10480 (1969) was superseded by E.O. 12919 in June 1994. In adopting new language in the Stafford Act replacing the former Federal Civil Defense Act (see Public Law 103-337) a new cross-reference to the Defense Production Act was placed in the Stafford Act.]

10. Executive order 12580, sec. 2 (c, delegated to the Director of FEMA relocation and temporary housing responsibilities under the Comprehensive Environmental Response and Liability Act of 1980. With certain exceptions for ongoing operations, these responsibilities were cross-delegated to the Administrator of EPA in the fall of 1990. [This cross-delegation essentially amending Presidential Executive order 12580 was approved by the White House. No formal amendment of the order has yet been made to reflect this change despite several amendments of the order since 1990]

11. Section 207. the “Declaration of Policy” covering the Act (section 2) recites a Congressional recognition that the jointly “Federal-State” civil defense “organizational structure” can be used for natural disasters “ without adversely affecting . . . attack-related civil defense . . .”

The section 207 language quoted in the text was added in 1981 as part of the fiscal 1982 Defense Authorization Act and was explained as follows in the conference report (H.Rep. 97-311, U.S. Code Cong. And Ad. Serv. , 1981, III, pp. 1858-9):

The Senate conferees were concerned that under the House provision funds could be expended in a manner that would not in fact permit dual use, i.e. that funds allocated for natural disaster preparedness would have limited or no utility in the event of a nuclear attack. Consequently, the Senate proposed a modification . . . which permits that use of attack-related civil defense resources for natural disaster preparedness so long as such use . . . is consistent with, contributes to, and does not detract from attack-related preparedness.

This suggests a stringent test – any disaster use would also have to serve attack civil defense purposes. FEMA’s regulations (44 CFR part 312) do not appear, however, to reflect such a test. Generally, they contemplate that FEMA will determine the program mix between attack and disaster activities and communicate it to the States, presumably in connection with the budgeting and fund allocation process (see 44 CRF section 312.4(a)). The only specific requirement is that “[f]inancial contributions will not be made unless substantive activities and projects in preparation and response to attack-related disasters are identified, and progress is indicated in the submissions and recorded in program reporting systems.” (44 CFR Section 314(c). [Note that dual-use was mandated by statute in Public Law 103-160 almost exactly one year before the repeal of the Federal Civil Defense Act by Public Law 103-337.]

12. FEMA nevertheless might be considered to retain overall coordinating authority even in connection with environmental emergencies, to the extent that other agencies are not specifically authorized to act in this capacity. For example, if an environmental emergency was also recognized as a major disaster under the Stafford Act, the coordination of the two systems would most logically be a FEMA responsibility. This assumes that the environmental event would fall under the major disaster definition, a point considered later in this paper.

13. See note 3.

14. “’[C]ommand and control’ . . . has generally been taken to include police-type power to direct movement of persons and traffic and otherwise control evacuations and maintain order backed by coercive authority.” Memorandum, Congressional Research Service, Library of Congress, American Law Division, to Hon. Edward J. Markey, Feb. 7, 1989, p.1.

15. Public Law 101-625, sections 931-934, 104 Stat. 440304404. This statute also authorizes the Secretary of Agriculture to make special allocations for rural housing to areas affected by a natural disaster declared under the Stafford Act.

16. In 1989, in hearings before its Senate appropriations subcommittee, FEMA cited Senate committee report language explaining the emergency authority to support its contention that it was legally barred from invoking that authority in connection with the Exxon Valdez oil spill because other agencies could act under the Federal Water Pollution Control Act. S. Hrg. 101-345, p. 619. In its Federal Register explanation of the rule, FEMA stated:

FEMA feels that the Congressional intent is clear. However, where there are significant unmet needs of sufficient severity and magnitude, not addressed by other assistance, which could appropriately be addressed under the Stafford Act, the involvement of other agencies would not preclude a declaration of emergency under the Act. Federal Register January 23, 1990, Vol.No. 15, p. 2286.

[It should be noted that the language on p. 619 was provided by FEMA for the record of the Senate Hearing and was garbled either intentionally or accidentally by the Senate staff when placed in the record. Because the Senate Committee had requested if a formal opinion of counsel supported the agency action in not requesting a declaration and no opinion existed prior to the turn-down or subsequently it is important that the full text of the language provided to the Senate be discussed here.
Whether it rises to the dignity of an opinion is in the eye of the beholder. The language is set forth below:
Title V of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (“the Act”) authorizes the President to provide assistance in response to Presidentially-declared emergencies. The Act, as well as the legislative history leading to the enactment of the Disaster Relief and Emergency Assistance Amendments of 1988, P.L. 100-707, indicates a Congressional intent that the Act’s emergency authorities be triggered only when other available Federal authorities cannot adequately address a situation. For example, S. Rpt. 100-524, 100th Cong. 2d Sess., which accompanied S. 2380, states pertinent part at page 4:

‘In any emergency the President must first invoke other Federal authorities available to him to meet the crisis. If there are other authorities, the role of the Federal Emergency Management Agency would be limited to providing technical assistance and coordinating the efforts of other Federal agencies under authorities granted to them under other Federal acts. Only after a determination that assistance under other Federal authorities is inadequate to meet the crisis may FEMA directly intervene. “ (emphasis added)

In addition, Congressman Stangeland—one of the sponsors of H.R. 2707 –stated in pertinent part in a floor debate on October 21, 1988:

“. . . we do not intend for emergency declarations to be available in responding to . . . environmental . . . catastrophes for which Federal assistance is already available.”

The National Contingency Plan (NCP) which is authorized by section 311 of the Federal Water Pollution Control Act, 33 U.S. C. 1321, provides the United States with authority to respond to the oil spill. Therefore, the declaration of an emergency under the Act to trigger authorities which were already available under the NCP was unnecessary.’


It of course is obvious that should the position submitted to the Senate have prevailed, and the regulation adopted and strictly interpreted, FEMA would almost never have recommended an emergency declaration to the President without first having done exhaustive research to determine the existence first, and then the adequacy of other Federal response authority. Since the key issue in Exxon Valdez was the immediate impact on native American fishing villages along the coast, as pointed out previously no Federal agency has budget execution authority for mass evacuation, mass shelter, mass medical, etc. In an ironic footnote, discovery by Exxon against the Federal government showed that FEMA had done almost everything it could to facilitate the Federal response except fund direct assistance to the State for its native American villages, this include deployment of staff to assist EPA and the Coast Guard, provision of communication services and other technical assistance, but of course none of this activity was pursuant to the recently enacted Stafford Act provisions.

17. “Catastrophe” is sometimes used to refer to a super disaster. It is not so used here or elsewhere in the Stafford Act. A major disaster, for purposes of that Act, is a “catastrophe.”
18. The Disaster Relief Act of 1970 (Section 221, 84 Stat. 1751) provided that:

“If the President determines that a major disaster is imminent, he is authorized to use Federal departments, agencies, and instrumentalities and all other resources of the Federal Government to avert or lessen the effects of such disaster before its actual occurrence.”

The 1974 amendment that created the “emergency” category appear to have been intended to preserve at least a part of this authority. The Conference Report stated:

“It is the intention of the conferees that [this section] shall allow the President to undertake whatever action he considers necessary to avert a disaster when conditions do not warrant the full application of assistance under a major disaster declaration or when a major disaster threatens and special expedient actions can be taken to avert or lessen its probable effect. Such action is intended to provide the President with authority to act before a disaster strikes. The purpose of such section is to make available emergency assistance which, because of the pressures of time or because of the unique capabilities of a Federal agency, can be more readily provided by the Federal Government [emphasis added].

19. See January 11, 1991 memorandum, George W. Watson to Wallace E. Stickney, also cited in note 5, which states, at p. 3:

“It is tempting to suppose that FEMA’s role as ‘coordinator’ means that FEMA will be in charge of an emergency response. FEMA will give orders and other agencies will carry them out. However, that kind of power does not accrue to an agency, especially one as small as FEMA, simply because the President signs an Executive order. FEMA, as an institution, does not command the kind of attention that ensures its directives or advice will be carried out promptly . . . When an emergency arises, if enforcement becomes an issue, the system has already broken down.”

20. However, according to the conference report on the 1974 legislation, the federal preparedness provisions were seen by Congress as having a major coordination purpose:

“Other Federal agencies . . . have preparedness missions and provisions which provide substantial collateral benefits for meeting situations covered by this legislation. The conferees wish to make sure that these direct and collateral preparedness efforts are part of a coordinated whole under the overall policy guidance and coordination of the agency selected by the President to carry out the operating programs authorized by this legislation.”

Conf. Rep. 93-1037, 1974 Cong. And Ad. Serv., p. 3093.

21. Apparently, FEMA may consider an agency to be acting under its independent authority even though it is responding to a mission assignment under the Federal Response Plan. See memorandum, Patricia Gormley, General Counsel, to Grant C. Peterson, April 21, 1992, pp 1-2.

22. Prior to November 1988, the disaster relief legislation (now the Stafford Act) had been used for a variety of non-natural disasters, including “the Teton Dam failure, toxic waste incidents at Love Canal, a Louisville sewer explosion and the Cuban refugee influx.” These declarations had been bases on an interpretation of the definition – which listed a variety of natural events, such as hurricanes and earthquakes, followed by “or other catastrophe.” A human-caused event was an “other catastrophe.”

This interpretation may not always have been accepted as a legal matter but appears to have prevailed more often than not. It was not, however popular with everyone, and FEMA in the mid-1980’s began seeking legislation to revise the emergency and major disaster definitions, explaining that “[s]ome members of Congress have objected to the use of the variety of disaster assistance authorities, which have been developed over the years primarily to address natural disasters, to respond to non-natural events.”

The amendments FEMA sought were included in the 1988 legislation. These (1) changed the definitions, as described in the text, in order to draw a distinction between recognizable causes of emergencies and major disasters; and (2) narrowed the potential range of assistance in the case of emergencies by eliminating a provision which allowed the President (FEMA) to provide any assistance under the Act deemed appropriate.

See memorandum, November 19, 1982, Larry Simms, Office of Legal Counsel (Department of Justice) to Rudolph W. Giuliani, FEMA General Counsel Memorandum, 82-11-19; January 18, 1983 memorandum Craig Annear to Lee Thomas, FEMA General Counsel Memorandum 83-1-18; and 1985 letter, Phillip D. Brady, Acting Assistant Attorney General, to David Stockman, FEMA General Counsel Memorandum 85-05-24, The copy of this last in the file is unsigned and it is not clear that it was ever sent.)

23. Memorandum, Patricia M. Gormley, General Counsel, to Russell F. Miller, OIG January 15, 1993.

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PRINCIPAL LEGISLATION ON DISASTER RELIEF SINCE 1974

Revised Mar/07

Disaster Relief Act of 1974, Public Law 93-288, May 31, 1974, 42 U.S.C. 5121 et seq.

Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 42 U.S.C. §5121 et seq. (See 44 CFR Parts 206 & 300) Originally enacted as Public Law 100-707, November 23, 1988. [Supplemented in part and superseded in part the Disaster Relief Act of 1974]

Hazard Mitigation and Relocation Assistance Act of 1993 (Public Law 1-3-181)

The National Defense Authorization Act for 1995, Public Law 103-337 [Repealed the Civil Defense Act of 1950, Public Law 81-920, and Amended the Robert T. Stafford Act by adding a new title incorporating portions of the Civil Defense Act.]

Disaster Mitigation Act of 2000, Public Law, Pub.L.106-390 signed October 30, 2000 [Statutory Authority clarified for Pre-disaster Mitigation]

Local Community Recovery Act of 2006, Public Law 109-218 signed April 20, 2006 [Authorizes geographic set asides for disaster contracts]

Stafford Amendments by the DHS Appropriation Act for FY 2007, Public Law 109-295 signed October 6, 2006 [Also contains Post-Katrina Emergency Management Reform Act of 2006, Title VI]

Stafford Act amended to mandate emergency preparedness planning for household pets and service animals. Public Law 109-308.

Security and Accountability for Every Port Act of 2006. Public Law 109-347 signed October 13, 2006 [Stafford Act Amendments included]







FEDERAL EMERGENCY
MANAGEMENT AGENCY

INFORMAL CITATIONS FOR LEGAL AUTHORITIES

Statutes

Reorganization Plan No. 3 of 1978, 3 CFR 1978 Comp., p. 329, 5 U.S.C. App. 1, note. (Authority for FEMA)

Atomic Energy Act of 1954, as amended, 42 U.S.C. §2011 et seq. (Authority for Radiological Preparedness Program, See 44 CFR Parts 350-354)

Communications Act of 1934, as amended, 47 U.S.C. §151 et seq. (Authority for interoperable emergency communication systems-Federal, State, local, and private) See 47 CFR Parts 64 & 201)

Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as further amended by Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. §9615 et seq. (See 40 CFR Part 300)

Defense Production Act of 1950, as amended, 50 U.S.C. App. §2061, et seq. (See 15 CFR Part 700 and 44 CFR Parts 320--336)

Department of Defense Authorization Act for 1986, § 1412 (Public Law 99-145; 99 Stat.747), as amended by Public Law 101-510, both codified as 50 U.S.C. §1521 (Authority for CSEPP)

Department of Defense Authorization Act for 1997, Defense Against Weapons of Mass Destruction Act of 1996, Title XIV of Public Law 104-201.

Earthquake Hazards Reduction Act of 1977, as amended most recently by Public Law 105-47 (October 1, 1997), 42 U.S.C. §7701 et seq. (See 44 CFR Parts 361 & 362)

Emergency Planning and Community Right to Know Act of 1986, as amended, 42 U.S.C. §11001 et seq. (Authority for hazard materials planning and disclosure)


Federal Fire Prevention and Control Act of 1974, as further amended by the Hotel and Motel Fire Safety Act of 1990 (Public Law 101-391) and Arson Prevention Act of 1994 (Public Law 103-254) and Firefighters‘ Safety Study Act (Public Law 101-446) all codified at 15 U.S.C. §2201 et seq. (See 44 CFR Parts 150-152)

Great Lakes Planning Assistance Act of 1988, Title II of Public Law 100-707, 33 U.S.C. §426p.note. (See 44 CFR Part 207)

Hazardous Materials Transportation Act, as further amended by Hazardous Materials Transportation Uniform Safety Act of 1990, both codified at 49 U.S.C. §5101 et seq. (Hazardous materials planning and training)

Multihazard Research, Planning, and Mitigation Act, Public Law 96-472, 42 U.S.C. §5195 note.

National Emergencies Act, as amended, 50 U.S.C. §1601 et seq. (Statutory process for declarations of National Emergencies)

National Dam Safety Program Act, 33 U.S.C. §467 et seq.

National Security Act of 1947, as amended, 50 U.S.C. §§ 404, 405 & 411

Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 42 U.S.C. §5121 et seq. (See 44 CFR Parts 206 & 300)

Stewart B. Mckinney Homeless Assistance Act, as amended, 42 U.S.C. §11311 et seq. (Emergency food and shelter program)

National Flood Insurance Act of 1968, as further amended by Flood Disaster Protection Act of 1973, and National Flood Insurance Reform Act of 1994, all codified at 42 U.S.C. §4001 et seq. (See 44 CFR Parts 59-79)

Executive Orders

Executive Order 11988 of May 24, 1977, as amended, Floodplain Management, 3 CFR, 1977 Comp., p. 117, 42 U.S.C. §4321 note p.191. (See 44 CFR Part 9)

Executive Order 12046 of March 27, 1978, as amended, Relating to the transfer of telecommunications functions, 3 CFR, 1978 Comp., p.158. (See 47 CFR Part 201)

Executive Order 12127 of March 31, 1979, Federal Emergency Management Agency, 3 CFR, 1979 Comp., p. 376. (Implements Reorg. Plan No. 3 of 1978)

Executive Order 12148 of July 20, 1979, as amended, Federal emergency management, 3 CFR, 1979 Comp., p. 412. (Implements Reorg. Plan No. 3 of 1978)

Executive Order 12241 of September 29, 1980, National Contingency Plan [Radiological Emergencies], 3 CFR, 1980 Comp., p. 282. (Note-Source of FRERP).

Executive Order 12472 of April 3, 1984, Assignment of national security and emergency preparedness telecommunications functions, 3 CFR, 1984 Comp., p.193. (See 47 CFR Part 201)

Executive Order 12580 of January 23, 1987, as amended, Superfund Implementation, 3 CFR, 1987 Comp., p. 193 (Note: Amended by E.O. 12777 of October 18, 1991, and further amended by E.O. 13016 of August 28, 1996). (See 40 CFR Part 300).

Executive Order 12656 of November 18, 1988, Assignment of Emergency Preparedness Responsibilities, 3 CFR, 1988 Comp., p. 585. (See 47 CFR Part 201)

Executive Order 12657 of November 18, 1988, Federal Emergency Management Agency Assistance in Emergency Preparedness Planning at Commercial Nuclear Power Plants, 3 CFR, 1988 Comp., p. 611. (See 44 CFR Part 352)

Executive Order 12673 of March 23, 1989, Delegation of Disaster Relief and Emergency Assistance Functions, 3 CFR, 1989 Comp., p. 309. (See 44 CFR Part 206)

Executive Order 12699 of January 5, 1990, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction, 3 CFR, 1990 Comp., p. 269.

Executive Order 12742 of January 8, 1991, National Security Industrial Responsiveness, 3 CFR, 1991 Comp., p. 309.

Executive Order 12919 of June 3, 1994, National Defense Industrial Resources Preparedness, 3 CFR, 1994 Comp., p. 901. (See 15 CFR Part 700, 44 CFR Parts 321- 336)

Executive Order 12941 of December 1, 1994, Seismic Safety of Existing Federally Owned or Leased Building, 3 CFR, 1994 Comp. , p. 955.

Executive Order 13010 of July 15, 1996, Critical Infrastructure Protection, 3 CFR, 1996 Comp., p. 198.