National Disaster Recovery Framework [NDRF]

The NDRF has been posted in the FEMA historical docs section on the home page of this blog thanks to Steve Aftergood of FAS.

That document has now been confirmed as FEMA's effort to fullfill the requirements in the statutory mandate laid down by PKEMRA 2006 that states as follows:

"SEC. 682. NATIONAL DISASTER RECOVERY STRATEGY.

(a) IN GENERAL.—The Administrator, in coordination with the Secretary of Housing and Urban Development, the Administrator of the Environmental Protection Agency, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of the Treasury, the Secretary of Transportation, the Administrator of the Small Business Administration, the Assistant Secretary for Indian Affairs of the Department of the Interior, and the heads of other appropriate Federal agencies, State, local, and tribal government officials (including through the National Advisory Council), and representatives of appropriate nongovernmental organizations shall develop, coordinate, and maintain a National Disaster Recovery Strategy to serve as a guide to recovery efforts after major disasters and emergencies.
(b) CONTENTS.—The National Disaster Recovery Strategy
shall—
(1) outline the most efficient and cost-effective Federal programs that will meet the recovery needs of States, local and tribal governments, and individuals and households affected by a major disaster;

(2) clearly define the role, programs, authorities, and responsibilities of each Federal agency that may be of assistance in providing assistance in the recovery from a major disaster;

(3) promote the use of the most appropriate and cost effective building materials (based on the hazards present in an area) in any area affected by a major disaster, with the goal of encouraging the construction of disaster-resistant buildings; and

(4) describe in detail the programs that may be offered by the agencies described in paragraph (2), including—
(A) discussing funding issues;

(B) detailing how responsibilities under the National Disaster Recovery Strategy will be shared; and

(C) addressing other matters concerning the cooperative effort to provide recovery assistance.

(c) REPORT.—
(1) IN GENERAL.—Not later than 270 days after the date of enactment of this Act, the Administrator shall submit to the appropriate committees of Congress a report describing in detail the National Disaster Recovery Strategy and any additional authorities necessary to implement any portion of the National Disaster Recovery Strategy.

(2) UPDATE.—The Administrator shall submit to the appropriate committees of Congress a report updating the report submitted under paragraph (1)—

(A) on the same date that any change is made to the National Disaster Recovery Strategy; and

(B) on a periodic basis after the submission of the report under paragraph (1), but not less than once every 5 years after the date of the submission of the report under paragraph (1)."

The NDRF appeared in September 2011. Given the statutes highly specific listing of points to be addressed in the NDRS [national disaster recovery strategy] I find almost no correlation of points covered in the NDRF.

In Wednesday's hearing before the House Homeland Security Committee this disparity was not addressed but Administrator Fugate did state that in accordance with PPD-8 issued last spring changes to the NDRF and other frameworks would be almost continuous.

So stay tuned.

Presidential Authority

One of the broadest grants of discretion from Congress to the President is contained in the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707!

I used this section to highlight the broad Presidential authority and immediate access to funding the authority gave to the President in many briefings in DOD and DOJ and to other agency Emergency Management appointees and employees.

The provision is set forth here:

UNITED STATES CODE ANNOTATED
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 68--DISASTER RELIEF
SUBCHAPTER IV-A--EMERGENCY ASSISTANCE PROGRAMS
§ 5191. Procedure for declaration

(a) Request and declaration

All requests for a declaration by the President that an emergency exists shall be made by the Governor of the affected State. Such a request shall be based on a finding that the situation is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. As a part of such request, and as a prerequisite to emergency assistance under this chapter, the Governor shall take appropriate action under State law and direct execution of the State's emergency plan. The Governor shall furnish information describing the State and local efforts and resources which have been or will be used to alleviate the emergency, and will define the type and extent of Federal aid required. Based upon such Governor's request, the President may declare that an emergency exists.

(b) Certain emergencies involving Federal primary responsibility

The President may exercise any authority vested in him by section 5192 of this title or section 5193 of this title with respect to an emergency when he determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority. In determining whether or not such an emergency exists, the President shall consult the Governor of any affected State, if practicable. The President's determination may be made without regard to subsection (a) of this section.

CREDIT(S)

(Pub.L. 93-288, Title V, § 501, as added Pub.L. 100-707, Title I, § 107(a), Nov. 23, 1988, 102 Stat. 4706.)

Current through P.L. 109-367 (excluding P.L. 109-304, P.L. 109-351,
P.L. 109-364) approved 10-26-06


Of course the words I am focusing on are repeated here:

". . .when he [the President] determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority. . ."

A single FEMA OGC opinion was written during my time in FEMA discussing this discretionary authority. Note that very few subject matter areas are truly exclusive to the federal government and even criminal law enforcement has many duplications and overlaps and works largely due to principles of "comity" meaning for this purpose recognition of principles of federalism. Unfortunately, "terrorism" has been de facto hijacked by the federal government in various amendments to the US Code, and not just Title 18 of the US Code, the so-called Criminal Code of the US, that directly or indirectly address terrorism. In fact almost 100 various terms involving "terrorism" with differing definitions now exist in the US Code. Exactly who is a statutorily defined "terrorist" is always a good question?

Recently the Administrative Conference of the US has discussed issues of "Preemption" largely in the regulatory context of the Commerce Clause of the Constitution but in fact that principle is also grounded in the Supremacy Clause of the Constitution and de facto in the arena of National Security.

Over the years, several efforts have been made to identify broad Presidential authorities useful in various situations. This clearly is one of the most useful since the terms are largely undefined and can be defined only by implication when a President uses the authority. Again it is interesting that none of the oversight committees have taken any interest in the language above or its utilization or parameters.

I think a specific example or examples might be of interest to readers of this blog. The first one I would identify is Haiti and disaster operations in Mexico for example. One of the interesting things to me about the current Arizona immigration litigation [and jurisdictional issues have now been discussed in the literature overlooked by the federal district court in its decision now on appeal to the Ninth Circuit by the US and the State] is that it might end up with a decision as to the exclusivity of the authority of the US in immigrartion policy and enforcement. Note that current law on immigration has both civil and criminal components. Should such a result occur than perhaps we shall see some future President use this authority in the STAFFORD ACT to deal with an Immigration Emergency. Note that there is some history of this when President Carter used the provisions of the Disaster Relief Act of 1974 (Public Law 93-288) to deal with the Mariel Boatlife [which included both Cubans and Haitians] in 1980. And the Office of Legal Counsel opined that the Disaster Relief Act of 1974 granted the President that authority.

As we see an unskilled and injudicious DHS accelerate the breakdown between foreign and domestic threats, and foreign and domestic intelligence it might be a useful subject for Congressional review as to what each administration would laundry list as falling within the statutory authority discussed above. And of course remember despite any delegation, we are talking of Presidential authority not Secretary DHS or Administrator FEMA authority.

Additional Authority Granted by PKEMA to President under Stafford Act

It has been suggested that my conclusion in a recent post that PKEMA granted no new authority to the President or his delegate Secretary DHS or FEMA under the Stafford Act is an incorrect conclusion.

The writer suggests that improved or new authority under Sections 403,408, and 425 and authorization for pilot programs were all significant enhancements of legal authority to the Executive Branch in disasters. Yes, I agree there were to some extent enhancements and yes maybe even expansions on authority but at least I would argue that improved case management did not require legislation. But the subject is important and will closely review PKEMA again. Why? Because every article I have seen concludes that PKEMA for a variety of reasons allowed creation of a "new" FEMA but is that really the case if the actual legal authority defects in the response and recovery have not been dealt with by Congress. I will have to go back to the House, Senate and White House post-Katrina reports and see if they identified legal authority deficiences. One question that needs an answer is the following: If there is no Gubnatorial request for a disaster or emergency declaration what is the President's power to issue such a declaration? The statute does authorize an emergency declaration for events of particular federal significance or concern! The interesting thing is that in the only formal opinion signed by a GC of the formerly independent FEMA, the GC concluded that only the Department of Justice could make such a determination. HMMMM! I wonder if procedures are in place to include DOJ in review of that special kind of emergency declaration?And wonder of course if the GC of DHS agrees with that analysis. The opinion was issued by FEMA/GC about 1995! It elaborated on an earlier opinion issued by an Associate GC in 1991 based on the specific question of the then Director of FEMA, Wallace B. Stickney!