Order Code RL31285
CRS Report for Congress
Received through the CRS Web
FEMA’s Mission: Policy Directives for the
Federal Emergency Management Agency
Updated March 13, 2002
Keith Bea
Specialist, American National Government
Government and Finance Division
Congressional Research Service ˜
The Library of Congress
FEMA’s Mission: Policy Directives for the
Federal Emergency Management Agency
Summary
The Federal Emergency Management Agency (FEMA) assists states and
localities overwhelmed by, or at risk from, disasters. FEMA also coordinates federal
emergency management activities and planning for the continuity of government
should national security be threatened.
Since 1979 FEMA has administered a range of authorities that enable the agency
to serve as the primary source of federal technical and financial assistance for
emergency management. Among the types of aid provided through FEMA programs
are grants and material to help disaster victims meet pressing needs such as food and
shelter, education and training programs to improve the response capabilities of non-
federal officials, and mobile communications equipment. FEMA exercises little
regulatory authority, but directives that underlie the agency’s mission authorize the
agency to establish standards for reconstruction of buildings after a disaster
declaration is issued, for the construction of federal buildings in earthquake-prone
areas, and for the operation of first responder equipment.
FEMA has responded to, and has helped communities prepare for, terrorist
attacks in the United States. The Office of Homeland Security (OHS), established by
President Bush subsequent to the attacks in 2001, has a similar, but more
encompassing, mission related to disasters caused by terrorist actions. Congressional
debate on the contours and framework for federal administration of homeland security
might include consideration of FEMA’s mission, the extent to which that mission
overlaps with the assignments given the new OHS, and a new structure or set of
authorities for the agency.
This report identifies authorities drawn from public sources. It does not refer to
classified authorities not available to the public, does not include references to
temporary authorities that require FEMA to provide assistance for specific disasters
or needs, and does not include information on plans, regulations, or operating manuals
developed to implement these policies. This report will be updated as the authorities
governing the agency’s mission undergo significant change.
Contents
Basic Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Evolution of FEMA’s Basic Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Centralized Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dam Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Disaster Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Earthquake Hazards Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Emergency Food and Shelter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Fire Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Hazardous Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interagency Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
National Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Nuclear Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Terrorist Attacks and Homeland Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Genesis of FEMA’s Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Office of National Preparedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Office of Homeland Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Issue Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Legislative Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
FEMA’s Mission: Policy Directives for the
Federal Emergency Management Agency
Basic Authorities
The Federal Emergency Management Agency (FEMA) is an independent agency,
its mission “to reduce loss of life and property and protect our nation’s critical
infrastructure from all types of hazards through a comprehensive, risk-based,
emergency management program of mitigation, preparedness, response and
recovery.”1 FEMA provides disaster assistance to state and local governments,
individuals, families, and certain nonprofit organizations, but generally not to
businesses.2 In addition to providing aid after disasters, FEMA administers programs
to help communities prepare for catastrophes that might occur.
FEMA’s policy authorities have evolved over the years as new authorities have
been created to meet emergent needs. Some of FEMA’s authorities deal with
homeland security and terrorist attack — a matter that received attention before and
after the events of September 11, 2001. This report discusses the evolution of
FEMA’s central authority and identifies other authorities that Congress and the
executive branch have given to FEMA. The report also reviews FEMA’s role in
homeland security and discusses organizational issues that have arisen since the
President’s creation of the Office of Homeland Security.
Evolution of FEMA’s Basic Authority
The level of responsibility for disaster relief and emergency management has
increased over the years. Before 1950 no single federal agency exercised lead agency
emergency management (primarily disaster relief) duties, as Congress enacted
ad hoc
legislation after each major catastrophe that authorized the President to determine
when federal disaster aid would be provided pursuant to the assistance specified in the
legislation. In 1950, Congress enacted legislation that authorized the President to
determine when federal assistance would be made available.3 From 1950 to 1978,
Congress enacted legislation that expanded the categories of federal assistance,
established the amount of assistance to be provided, and set a range of requirements
1U.S. Federal Emergency Management Agency, “About FEMA, Helping People Before,
During, & After Disasters,” available at [http://www.fema.gov/about/], visited Jan. 8, 2001.
2For background on aid to small businesses, see CRS Report RS21061,
Small Business
Disaster Assistance: Responding to the Terrorist Attacks, by Bruce Mulock.
3P.L. [81]-875, 64 Stat. 1109.
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for federal and non-federal officials.4 Primary responsibility for implementation of
these laws shifted first from the independent Federal Civil Defense Administration, to
offices within the White House, and then to the Department of Housing and Urban
Development. The resulting transfer of authorities and the lack of clear coordinative
responsibility caused problems at all levels of government, leading observers in the
1970s to call for the consolidation of related functions.5
In 1977, congressional concern about the coordination of federal emergency
assistance programs led to efforts by Members of Congress and state and local
officials to reorganize federal disaster related functions.6 Congress suspended its
efforts when President Carter announced an ongoing review of the issue within the
Office of Management and Budget (OMB).7
Centralized Authority. On June 19, 1978, President Carter submitted to
Congress
Reorganization Plan Number 3 to establish FEMA.8 After neither chamber
passed a resolution of disapproval, the Plan took effect on April 1, 1979.9 The
reorganization plan and two related executive orders that created FEMA and
transferred functions from other federal agencies included the following provisions:
!
Reorganization Plan Number 3 of 1978 — Created FEMA and transferred fire
prevention, flood insurance, and emergency broadcast functions. Also
transferred the National Fire Prevention and Control Administration and the
National Academy for Fire Prevention and Control to the new agency.10
4For a summary of the evolution of these authorities, see U.S. Congress, Senate Bipartisan
Task Force on Funding Disaster Relief,
Federal Disaster Assistance, S.Doc. 104-4, 104th
Cong., 1st sess. (Washington: GPO, 1995), Appendix I.
5For example, see U.S. President (Nixon), “New Approaches to Federal Disaster Preparedness
and Assistance,” H.Doc. 93-100, 93rd Cong., 1st sess. (Washington: GPO, 1973); National
Governor’s Association, 1978 Emergency Preparedness Project Final Report (Washington:
1978), p. 394. See also [http://www.fema.gov/about/history.htm].
6The principal 95th Congress bills were H.R. 7222, H.R. 7649, S. 526, and S. 1209.
7Results of the Administration study are found in: U.S. Office of Management and Budget,
Federal Emergency Preparedness and Response Historical Survey (Washington: 1978), p.
70.
8Pursuant to general reorganization authority granted the President in the Reorganization Act
of 1949, as amended (P.L. 95-17, 91 Stat. 29-35, 5 U.S.C. 901), reorganization plans
submitted to the Congress for consideration were implemented if Congress did not pass
resolutions of disapproval within sixty days. This reorganization authority expired in 1984.
9Both chambers held hearings on the plan and unfavorably reported resolutions of disapproval.
See U.S. Congress, House Committee on Government Operations,
Reorganization Plan No.
3 of 1978 (Federal Emergency Management Agency), hearings, 95th Cong., 2nd sess., June
26 and 29th, 1978 (Washington: GPO, 1978), p. 168; U.S. Congress, Senate Committee on
Governmental Affairs,
Reorganization Plan No. 3 of 1978 (Disaster Preparedness),
hearings, 95th Cong., 2nd sess., June 20th and 21st, 1978 (Washington: GPO, 1978), p. 47.
105 U.S.C. Appendix.
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!
E.O. 12127 — Effectuated the reorganization plan and further specified the
authorities and functions transferred from the Departments of Commerce and
Housing and Urban Development.11
!
E.O. 12148 — Transferred additional functions from the Departments of
Defense (civil defense) and Housing and Urban Development (federal disaster
assistance), General Services Administration (federal preparedness), and the
Office of Science and Technology Policy (earthquake hazards reduction). The
Order also authorized FEMA to coordinate “all civil defense and civil
emergency planning, management, mitigation, and assistance functions,” in
addition to dam safety, “natural and nuclear disaster warning systems,” and
“the coordination of preparedness and planning to reduce the consequences of
major terrorist incidents.” Other mandates set out in E.O. 12148 included
working with non-federal entities, assessing federal civil defense and
emergency management functions, and developing related policies. Finally, the
Order mandated establishment of the Federal Emergency Management
Council, composed of the FEMA and OMB directors, and others as designated
by the President.12
The reorganization plan, and the succeeding executive orders were intended to
invest in FEMA the first centralized set of authorities for emergency management.
No single directive, however, sets out FEMA’s responsibility. Instead, 12 public laws
and 19 unclassified presidential directives, including the three noted above, direct
FEMA to provide assistance in four phases of emergency management: preparedness,
response, recovery, and mitigation. The activities FEMA undertakes in each of these
four areas include the following.
Preparedness. (1) Funds state and local disaster planning; (2) coordinates
federal interagency planning for disaster response and continuity of government in the
event of a federal government crisis; (3) administers the National Defense Executive
Reserve program to identify business and government leaders willing to volunteer for
government service in emergency situations; (4) awards grants to state and local
governments for exercises and simulations; and (5) trains first responder units
(firefighters, emergency rescue, hazardous materials teams).
Response. (1) Coordinates delivery of resources from other federal agencies
and non-federal entities to communities stricken by major disasters; (2) administers
funds to nonprofit organizations that aid the homeless; (3) monitors the response of
11U.S. President (Carter), “Federal Emergency Management Agency,” Executive Order
12127, Mar. 31, 1979, 3 CFR, 1945-1989 Comp., p. 880.
12U.S. President (Carter),”Federal Emergency Management,” Executive Order 12148, July
20, 1979, 3 CFR, 1945-1989 Comp., p. 881, as amended by E.O. 12673. The Federal
Emergency Management Council provision was rescinded in U.S. President (Clinton),
“National Defense Industrial Resources Preparedness,” Executive Order 12919, June 3, 1994,
59 FR 29525, Sec. 904(8). Note: Reference in the Order to the Civil Defense Act (CDA) of
1950 as a base for authority is obsolete. The CDA was repealed and partially reenacted in
1994 (P.L. 103-337) when incorporated as Title VI of the Stafford Act, 42 U.S.C. 5195 et
seq.
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federal interagency teams to hazardous material incidents; (4) awards funds for
response associated with storage of chemical agents; and (5) offers assistance to state
and local officials responding to major disasters and catastrophic situations.
Recovery. (1) Provides funds to individuals and families in need of temporary
shelter or cash grants due to losses incurred in major disasters; (2) awards grants to
state and local governments and certain nonprofit organizations for the reconstruction
or repair of structures; and (3) reimburses insurance policy holders for losses from
floods.
Mitigation. (1) Assists property owners seeking to reduce future losses by
elevating, relocating, or reinforcing buildings in disaster-prone areas such as flood
plains or earthquake zones; (2) awards grants to help non-federal fire agencies fight
wildfires before they result in more catastrophic losses; (3) publishes flood zone maps
and funds efforts to update the maps; (4) provides technical assistance and funding for
updating land use plans and building codes; and, (5) funds certain efforts that prevent
terrorist attacks (these also may be considered preparedness activities).
Additional Authorities
In addition to the reorganization plan and the two executive orders noted above,
statutes and other executive orders have assigned responsibilities to FEMA. These
authorities are summarized below, grouped by topic.
Dam Safety
National Dam Safety Program Act — Designates the Director of FEMA to be
chair of the Interagency Committee on Dam Safety. Requires that the Director
administer a national dam safety and research program and coordinate activities with
the states.
The Director must establish annual targets through FY2002 for dam safety
improvements, recommend federal and non-federal roles to carry out the
implementation of the plan, and provide training and grants to the states. In
administering the grant program, the Director must contract with each state to
develop a work plan to reach performance levels set out in each contract. State dam
safety plans and programs must be reviewed and approved by the Director. The
statute authorizes the Director to establish a National Dam Safety Review board to
monitor state implementation efforts and requires that the Director submit biennial
reports to the Congress.13
Disaster Assistance
Robert T. Stafford Disaster Relief and Emergency Assistance Act —Authorizes
the President to provide federal assistance for preparedness and mitigation before
1333 U.S.C. 467 et seq.
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disasters occur. After a major disaster or emergency declaration is issued, requires
that the President designate a federal coordinating officer to coordinate federal and
non-federal disaster relief efforts. The President must also ensure that supplies
needed for reconstruction are available, subject to a Governor’s request. The Act also
authorizes a range of assistance to communities, non-profit organizations, and
individuals to help recovery efforts.
E.O. 12148 transferred the responsibility for administering much of the Stafford
Act provisions, as amended, to the FEMA Director. Administration officials
determine which areas are included in a declaration, award grants to communities and
individuals affected by specified catastrophes, and ensure that grantees comply with
statutory requirements. The Director also is charged with responsibility for preparing
emergency response plans and administering preparedness grants to the states.14
Earthquake Hazards Reduction
Earthquake Hazards Reduction Act of 1977 — Mandates that FEMA has
primary responsibility for coordinating and planning the National Earthquake Hazards
Reduction program.
The Director must submit an annual program budget to the Office of
Management and Budget (OMB), ensure implementation of the program by federal
and non-federal agencies, submit plan updates to Congress, and prepare biennial
reports to Congress. The FEMA Director must also administer grants to the states,
prepare and execute a public education program, prepare and disseminate research on
building codes, develop and coordinate the execution of federal interagency response
plans, develop ways to combine earthquake hazard reduction with similar efforts for
other hazards, and establish demonstration projects with states and localities.15
E.O. 12699 — Establishes earthquake safety requirements for federal buildings.
Requires the Director of FEMA to report to the President on implementation of the
executive order, to support the Interagency Committee on Seismic Safety in
Construction, and to collect information from other agencies to be included in annual
reports to Congress.16
E.O. 12941 — Requires that all federal agencies provide cost estimates on
mitigating seismic risks in federal buildings to FEMA. Charges FEMA with the
responsibility of notifying federal agencies of the executive order requirements and
1442 U.S.C. 5121 et seq. Title VI of the Stafford Act includes civil defense (now referred to
as emergency preparedness) provisions originally established in the Civil Defense Act of 1950,
50 U.S.C. App. 2251 et seq.
1542 U.S.C. 7701 et seq.
16U.S. President (Bush), “Seismic Safety of Federal and Federally Assisted or Regulated New
Building Construction,” Executive Order 12699, Jan. 5, 1990, 55 FR 835,3 CFR 1991, p.
269.
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preparing reports to Congress on seismic safety in federal buildings and the execution
of the executive order.17
Emergency Food and Shelter
Stewart B. McKinney Homeless Assistance Act of 1987, Title III — Directs the
FEMA Director to constitute and serve as Chair of the Emergency Food and Shelter
Program National Board.
The Director must provide administrative support to the board as specified,
conduct annual audits, and award the full amount of appropriations to the board for
implementation of the Act.18
Fire Control
Federal Fire Prevention and Control Act of 1974 — Established the United
States Fire Administration (USFA) in the Department of Commerce, subsequently
transferred to FEMA in Reorganization Plan No. 3 of 1978 and E.O. 12127.
The Administrator of the USFA reports to and is responsible to the FEMA
Director. The National Fire Academy within FEMA is charged with advancing
professional development of fire personnel. Its superintendent is appointed by the
FEMA Director and subject to direction of the USFA Administrator. The
Administrator oversees a program for testing and evaluating fire equipment, operates
the National Fire Data Center, and assists states in preparing fire prevention and
control plans. The Act authorizes the Administrator to review state and local fire
prevention codes, suggest improvements, encourage owners of large properties to
prepare fire safety statements, and to organize an annual conference. The
Administrator must develop arson detection techniques, conduct studies, provide
related training, collect data, and develop information on arson. The FEMA Director
must forward claims for fire fighting on federal property to the Treasury Department
for reimbursement. The Director must make annual reports to Congress on fire
prevention and control. He is authorized to make grants to fire departments for
specified purposes as well as to safety organizations for burn prevention programs.
The Director must report to Congress on the results of such grants.19
Hazardous Material
Emergency Planning and Community Right-to-Know Act of 1986 — Authorizes
funds for FEMA to provide grants to state and local governments and universities to
17U.S. President (Clinton), “Seismic Safety of Existing Federally Owned or Leased
Buildings,” Executive Order 12941, Dec. 1, 1994, 59 FR 62545, 3 CFR 1995, p. 955.
1842 U.S.C. 11331 et seq.
1915 U.S.C. 2201 et seq.
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improve emergency planning, preparedness, mitigation, response, and recovery
capabilities for hazardous chemical emergencies.20
Hazardous Materials Transportation Act of 1994 — Charges the FEMA
Director, in coordination with other agency heads, with developing, maintaining, and
distributing a curriculum on hazardous material transportation incident response in
order to train emergency response and preparedness teams.
Also, in coordination with other agency heads, the Director monitors and
reviews pertinent response and training activities of federal agencies and provides
technical assistance. As delegated by the Secretary of Transportation, the Director
may receive and review grant applications.21
Department of Defense Authorization Act of 1986 — Authorizes FEMA to
award grants (using funds appropriated to and transferred from the Department of
Defense (DoD)) to public agencies for preparedness and response activities related
to the storage and disposal of lethal chemical agents held by DoD. The Director must
submit annual reports to Congress on funded activities.22
E.O. 12580 — Requires FEMA to serve on the National and Regional Response
Teams established under the National Contingency Plan.23 Delegates to FEMA
responsibility for public comment on the plan, authority to consider revisions to the
plan, consideration of indemnification of contractors, and consultation with the states
on remedial actions.24
Insurance
National Flood Insurance Act of 1968 — As amended, authorizes the Director
of FEMA to establish and administer a national flood insurance program.25
The National Flood Insurance Program, administered by the Federal Insurance
Administration (FIA) within FEMA, provides insurance protection for properties not
insured by the private sector.26 In addition, the FIA is charged with administering
2042 U.S.C. 11005.
2149 U.S.C. 5115, 5116.
2250 U.S.C. 1521(c).
23The National Oil and Hazardous Substances Pollution Contingency Plan sets out procedures
to be followed in responding to discharges of contaminants. See 40 CFR 300.
24U.S. President (Reagan), “Superfund Implementation,” Executive Order 12580, Jan. 23,
1987, 3 CFR 1945-1989 Comp., p. 817, as amended by E.O. 12777, 13016. See also
President’s memorandum of August 19, 1993, 52 FR 2923, 3 CFR, 1994, p. 767.
2542 U.S.C. 4011 et seq.
26The position of the Federal Insurance Administrator was established in the Department of
Housing and Urban Development (HUD) in 1968 (P.L. 90-448) and then in FEMA in 1979
(P.L. 96-153); see 42 U.S.C. 4129. E.O. 12127 transferred insurance authority FEMA. See
(continued...)
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crime and property insurance policies that were made available to inner city residents
but are no longer available for sale.27
Interagency Committees
E.O. 12265 — Names the FEMA Director to the interagency committee on
consumer affairs.28
E.O. 12661 — Names the FEMA Director to the Interagency Group on
Countertrade to implement provisions of the Omnibus Trade Act with regard to
international trade policy.29
E.O. 12788 — Names the FEMA Director to the interagency Economic
Adjustments Committee related to military base closures.30
E.O. 12816 — Names the FEMA Director to the interagency committee on
administrative management.31
E.O. 13228 — Names the FEMA Director as a member of the Homeland
Security Council.32
National Security
National Security Act of 1947 — Authorizes the FEMA Director to appoint and
fix the compensation of personnel and to use federal resources to advise the President
with regard to the coordination of military, industrial, and civilian mobilization at
times of war. Policies and programs administered by the Director would address: the
effective use of labor, natural, and industrial resources; the coordination of federal
activities concerning the procurement and distribution of military or civilian supplies;
the relationship of supplies to requirements for resources and facilities; the
establishment and conservation of strategic and critical reserves; and, the relocation
26(...continued)
44 CFR §2.31 for the mission of the Federal Insurance Administration.
2712 U.S.C. 1749bbb et seq.
28U.S. President (Carter), “Federal Consumer Programs,” Executive Order 12265, Jan. 15,
1981, 46 FR 4665, 3 CFR, 1945-1989 Comp., p. 313, as amended by E.O. 12160.
29U.S. President (Reagan), “Implementing the Omnibus Trade and Competitiveness Act of
1988 and Related International Trade Matters,” Executive Order 12661, Dec. 27, 1988, 54
FR 779, 3 CFR, 1945-1989 Comp., p. 299, as amended by E.O. 12697, 12716.
30U.S. President (Bush), “Defense Economic Adjustment Program,” E.O. 12788, Jan. 15,
1992, 57 FR 2213, 3 CFR, 1993, p. 273.
31U.S. President (Bush), “Management Improvement in the Federal Government,” E.O.
12816, Oct. 14, 1992, 57 FR 47562, 3 CFR, 1992, p. 313.
32U.S. President (Bush), “Establishing the Office of Homeland Security and the Homeland
Security Council,” E.O. 13228, Oct. 8, 2001, 66 FR 51812.
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of government and private sector activities to ensure continued operation and national
security.33
Defense Production Act of 1950 — Authorizes the FEMA Director to
coordinate federal agencies’ decisions concerning the construction of government-
owned facilities, or the provision of federal assistance for other facilities, and to
ensure the dispersal of such facilities in the interest of national defense.34
Defense Against Weapons of Mass Destruction Act of 1996 — Authorizes the
Director of FEMA to coordinate efforts with other federal agency heads to provide
training to civilian personnel who must respond to the use or threatened use of
weapons of mass destruction (WMD). Requires the FEMA Director, in consultation
with other agency heads, to incorporate guidance in federal response plans and
programs on the use of an Armed Forces domestic terrorism rapid response team in
emergencies that involve such weapons.
The FEMA Director also works with other agency heads in testing and
improving responses to emergencies involving nuclear, radiological, chemical, and
biological weapons. The FEMA Director compiles and maintains a master inventory
of federal equipment and assets that could be used to assist non-federal entities
involved in responding to WMD emergencies, and incorporates guidance on accessing
and using equipment in response plans. The FEMA Director also maintains a
database on chemical and biological agents to be accessed by federal and non-federal
government officials and serves on the Committee on Nonproliferation within the
National Security Council.35
E.O. 10789 — Authorizes the Director of FEMA to issue contracts for services
and property considered necessary or appropriate for purposes of national defense.36
E.O. 12472 — Established the National Communications System and requires
the FEMA Director to consult with the President, the National Security Council
(NSC), and others on emergency telecommunications matters, including preparedness
for attack.
Other agency heads consult with the FEMA Director to ensure that National
Communications System activities are coordinated with federal emergency
management responsibilities. The FEMA Director operates and maintains
telecommunications services, works with non-federal entities to ensure that plans and
procedures comply with federal plans and national security and emergency
3350 U.S.C. 404, 405.
34As amended by the Defense Production Act Amendments of 1992, P.L. 102-558, 106 Stat.
4201, 50 U.S.C. App. 2062.
3550 U.S.C. 2312.
36U.S. President (Eisenhower), “Authorizing Agencies of the Government to Exercise Certain
Contracting Authority in Connection with National Defense Functions and Prescribing
Regulations Governing the Exercise of such Authority,” Executive Order 10789, Nov. 14,
1958, 3 CFR, 1945-1989 Comp., p. 832, as amended by Sec. 5-204, E.O. 12148.
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preparedness requirements, and oversees, in conjunction with the Federal
Communications Commission, the Emergency Broadcast System.37
E.O. 12656 — Requires the FEMA Director to advise the NSC and the
Homeland Security Council (HSC) on national security emergency preparedness
matters including mobilization, civil defense, continuity of government and
technological disasters.38
The Director helps implement and manage processes established by the President
for the NSC and the HSC, as well as implementing, coordinating (with federal and
non-federal entities), and reporting on national security emergency preparedness
policy. All federal agency heads consult and coordinate with the Director to ensure
that activities and plans are consistent with NSC guidelines and policies. The Director
consults with specified officials to develop and coordinate emergency preparedness
planning in matters related to the following:
! agriculture,
! industrial development,
! enemy attack estimates,
! hazards from nuclear weapons and related resources,
! labor,
! plans for civilian and military support needs during national security
emergencies,
! dissemination of emergency preparedness material during such emergencies,
! civil defense information related to emergency human services, and
! transportation preparedness planning.
In addition to consulting with other agency heads, the FEMA Director has lead
responsibility for coordinating federal national security emergency preparedness
programs and plans, guiding non-federal entities in emergency preparedness planning,
and providing assessments to the President on such capabilities. The Director
develops and coordinates civil defense programs, and provides advice on civil
emergency planning. He also supports federal agency heads to engage in
preparedness planning, including shelter management in the event of attack.39
37U.S. President (Reagan), “Assignment of National Security and Emergency Preparedness
Telecommunications Functions,” Executive Order 12472, Apr. 3, 1984, 49 FR 13471, 3
CFR, 1945-1989 Comp., p. 946. Note: Reference in the Order to the Civil Defense Act
(CDA) of 1950 as a base for authority is obsolete. The CDA was repealed and partially
reenacted in 1994 (P.L. 103-337) when incorporated as Title VI of the Stafford Act, 42
U.S.C. 5195 et seq.
38U.S. President (Bush), “Executive Order Establishing Office of Homeland Security,”
Executive Order 13228,
Federal Register, vol. 66, Oct. 8, 2001, p. 51812-51817.
39U.S. President (Reagan), “Assignment of Emergency Preparedness Responsibilities,”
Executive Order 12656, Nov. 18, 1988, 53 FR 47491,3 CFR, 1945-1989 Comp., p. 887, as
amended by E.O. 13074. Note: Reference in the Order to the Civil Defense Act (CDA) of
1950 as a base for authority is obsolete. The CDA was repealed and partially reenacted in
1994 (P.L. 103-337) when incorporated as Title VI of the Stafford Act, 42 U.S.C. 5195 et
(continued...)
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E.O. 12742 — Authorizes the FEMA Director to issue regulations concerning
the mobilization of industrial resources necessary for national security requirements.
Provides the Director authority to amend or revoke certain administrative actions
issued pursuant to the Defense Production Act of 1950, as amended. Proposed
agency regulations must be coordinated by the Director with appropriate agencies.40
E.O. 12919 — Authorizes the FEMA Director to advise the NSC on national
security resource preparedness matters, coordinate plans and programs associated
with authorities delegated in the executive order, establish procedures to resolve
conflicts, and report to the President on related activities. Agency delegation of
authorities must be furnished to the FEMA Director. Also, the FEMA Director
coordinates the National Defense Executive Reserve program to ensure that, in the
event of an emergency, trained personnel are ready to assume federal executive
positions, if needed. Other agency heads are required to consult with the FEMA
Director to identify labor and manufacturing information needs.41
Nuclear Facilities
E.O. 12241 — Authorizes the Director of FEMA to coordinate federal activities
set out in the National Contingency Plan in the event of the accidental release of
radioactive material at a nuclear facility.42
E.O. 12657 — Authorizes FEMA to assist nuclear power plant licensees in the
development of emergency preparedness plans in the event state or local governments
in the surrounding areas fail to develop such plans. The FEMA Director may enter
into interagency Memoranda of Understanding and provide advice and technical
assistance to satisfy emergency planning requirements. FEMA also ensures that
adequate resources exist in the absence of state or local commitments. FEMA also
evaluates such plans and take actions to ensure compliance with Nuclear Regulatory
Commission requirements.43
39(...continued)
seq.
40U.S. President (Bush), “National Security Industrial Responsiveness,” Executive Order
12742, Jan. 8, 1991, 56 FR 1079, 3 CFR, 1992, p. 309.
41U.S. President (Clinton), “National Defense Industrial Resources Preparedness,” Executive
Order 12919, June 3, 1994, 59 FR 29525, 3 CFR, 1995, p. 901.
42U.S. President (Carter), “National Contingency Plan,” Executive Order 12241, Sept. 29,
1980, 45 FR 64879, 3 CFR, 1945-1989 Comp., p. 887.
43U.S. President (Reagan), “Federal Emergency Management Agency Assistance in
Emergency Preparedness Planning at Commercial Nuclear Power Plants,” Executive Order
12657, Nov. 18, 1988, 53 FR 47513, 3 CFR, 1945-1989 Comp., p. 911. Note: Reference
in the Order to the Civil Defense Act (CDA) of 1950 as a base for authority is obsolete. The
CDA was repealed and partially reenacted in 1994 (P.L. 103-337) when incorporated as Title
VI of the Stafford Act, 42 U.S.C. 5195 et seq.
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Terrorist Attacks and Homeland Security
Pursuant to authorities identified above, FEMA has an important role with
regard to the threat of terrorist attack through coordinating federal disaster response
and improving the preparedness. As of November 13, 2001, FEMA had provided
almost $7 billion for debris removal, reconstruction, and rescue assistance at the site
of the World Trade Center (WTC) collapse.44 In addition, over $10 million has been
expended or reserved by FEMA for similar activities in Virginia following the attack
on the Pentagon.45 Since the attacks, FEMA has also made $220 million available to
improve state and local preparedness and deterrence capabilities.46 The President’s
FY2003 budget request further expands the agency’s role. It includes a “First
Responder Initiative” for planning, training, equipment, and simulations, to be funded
at roughly $3.5 billion and administered by FEMA.47
For years, analysts have raised questions about the assignment of primary
responsibility for coordinating homeland security responsibilities.48 Roughly a decade
ago, Congress also called for a resolution of the issue by enacting a Sense of Congress
resolution that called on the President to:
strengthen federal interagency emergency planning by the Federal Emergency
Management Agency and other appropriate federal, state, and local agencies for
development of a capability for early detection and warning of and response
to—(1) potential terrorist use of chemical or biological agents or weapons; and (2)
emergencies or natural disasters involving industrial chemicals or the widespread
outbreak of disease.49
Although the OHS is a new federal entity intended by the Bush Administration
to resolve these questions, the issue of assigning responsibility for coordinating federal
efforts in preparation for and as a consequence of terrorist attacks is not new and
might not be a settled matter. It may be argued that some, not all, of the functions
vested in OHS were envisioned years ago to be the responsibility of FEMA.
44U.S. Federal Emergency Management Agency, Office of Congressional and
Intergovernmental Affairs, personal communication with the author, Nov. 13, 2001.
45“FEMA Pledges to Stay for as Long as it Takes,” FEMA News Release, Oct. 11, 2001,
available at [http://www.fema.gov/nwz01/nwz01_145.htm], visited Jan. 25, 2002.
46In P.L. 107-38 Congress appropriated $40 billion for the response, recovery, and military
action associated with the 2001 terrorist attacks and for homeland security costs. From that
appropriation, $2 billion was allocated to FEMA by OMB for response and relief activities
on September 21, 2001, and $4.6 billion was set-aside for FEMA in P.L. 107-117 for disaster
relief and for state and local government equipment and training needs.
47 U.S. President [Bush],
Fiscal Year 2003 Appendix, Budget of the United States
Government, (Washington: 2002), p. 933.
48See the discussion of major reports in “Commissions’ Recommendations,” by Steve
Bowman, in the
CRS Electronic Briefing Book on Terrorism, available at
[http://www.congress.gov/brbk/html/ebter93.html], visited Feb. 11, 2002.
49P.L. 103-160, 107 Stat. 1855-56.
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Genesis of FEMA’s Role
That FEMA has a responsibility with regard to terrorist attacks in the United
States is a view that has been held for years. From its beginning, FEMA was created
by President Carter and Congress to be the federal agency with the primary role of
improving the nation’s preparedness for all disasters and coordinating the federal
response to the consequences of civil emergencies and disasters, including terrorist
attacks. An OMB study, prepared pursuant to a directive of President Carter said:
[F]ederal emergency preparedness functions not related to war or to natural
disaster are assuming increasing importance ... this new range of problems and
potential problems, including threats or acts of terrorism, peacetime nuclear
emergencies, critical shortages of vital supplies such as petroleum, and disruptions
of essential services such as electricity or transportation, have demanded
increasing federal attention ....There appears to be ample justification for taking
into account crises and emergencies of non-war and non-natural disaster origin in
designing an improved overall organization for federal civil emergency
preparedness and response. There may be a need to obtain, through legislation,
clarification of authorities in this area.50
The intent of
Reorganization Plan No. 3 of 1978 was to consolidate federal
emergency authorities without interfering with the basic functions of individual
departments and agencies. As summarized in President Carter’s message to Congress
that accompanied the
Plan, the transfer of emergency management functions from
other agencies into FEMA would preserve certain existing authorities to ensure that
“emergency responsibilities should be extensions of the regular missions of federal
agencies.” The President explained this principle as follows:
The primary task of the Federal Emergency Management Agency will be to
coordinate and plan for the emergency deployment of resources that have other
routine uses. There is no need to develop a separate set of federal skills and
capabilities for those rare occasions when catastrophe occurs.51
In a hearing on the plan to establish FEMA, the Director of OMB noted that the
functions to be transferred to FEMA included “coordination of preparedness and
planning to reduce the consequences of major terrorist incidents.”52 Consistent with
the principle of keeping emergency response capabilities as an extension of the regular
mission of each agency, however, OMB Director McIntyre noted that this
arrangement would “not alter present executive branch responsibilities for the
prevention and control of terrorist incidents.”53 The viewpoint that FEMA would
manage the consequences of terrorist incidents led to the following exchange during
the House hearing on the plan:
50U.S. Office of Management and Budget,
Federal Emergency Preparedness and Response
Historical Survey (Washington: unpublished, 1978), p. 60, 65.
51
Message of the President, Reorganization Plan No. 3 of 1978, 5 U.S.C. Appendix
52U.S. Congress, Senate Committee on Governmental Affairs,
Reorganization Plan No. 3 of
1978, p. 5.
53Ibid.
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MR. McINTYRE: We think the consequences of terrorist acts can be quite similar
to the consequences of major natural and man-made disasters. For example, in
both instances there will be serious disruptions of essential services or resources,
or certainly could be, and I would emphasize the new Agency would be involved
only with the consequences of terrorism and not with the incident itself. I want to
underscore that point.
MR. LEVITAS: That is the point I am most concerned about.
MR. McINTYRE: And so we felt that if you were going to have a broad-based
agency to respond to emergency situations, that since the consequences of these
terrorist acts could be expected to be similar to other emergencies, that this agency
should be in a position to respond.54
One public witness said that FEMA’s task of responding to the consequences of
terrorist incidents was an emergency function not then “assigned to any specific
federal agency.”55 The Senate report that accompanied the legislation on the
Reorganization Plan concurred with this observation, and noted that while the
National Security Council had responsibility for incident management of terrorist
actions, gaps were to be filled by FEMA, as follows:
By contrast, the responsibilities for consequences management are not clear.
As a result, federal agencies are reluctant to plan or commit resources. The
President has no one source he can turn to for reports on the damage incurred, the
resources available to respond, and the relief actions underway. To fill the void,
the new agency will monitor terrorist incidents in progress and, as required, report
the status of consequences management efforts to the President. Consequences
management in terrorism will thus be a capability in the broad all-risk, all-
emergency functions of the agency. The vulnerability assessment activities of the
new agency will be directed toward identification of physical actions that might be
taken to reduce damage against specific kinds of targets, and identification of areas
and types of scenarios that will require consequences management.
Immediately after a terrorist attack in cases where the domestic situation
would be so serious as to become a matter of national security concern, it is
anticipated that the [National Security Council] and the White House Emergency
Management Committee would meet together and develop joint recommendations
on response for the President.56
The Carter Administration and Congress established FEMA in 1978 to take
responsibility for the management of emergencies, including terrorist incidents. After
54U.S. Congress, House Committee on Government Operations,
Reorganization Plan No. 3
of 1978, p. 52.
55Ibid., testimony of Mylio S. Kraja, National Legislative Commission, The American Legion,
p. 155.
56U.S. Congress, Senate Committee on Governmental Affairs,
Reorganization Plan No. 3 of
1978, Establishing a New Independent Agency, the Federal Emergency Management
Agency, report to accompany S.Res. 489, 95th Cong., 2nd sess., S.Rept. 95-1141 (Washington:
GPO, 1978), p. 27. As noted previously (see footnote 12 of this report), the Federal
Emergency Management Council authority was rescinded in E.O. 12919.
CRS-15
more than two decades of FEMA stewardship, there is general agreement that, to
some extent, the intent of the 1978 reorganization plan has been achieved. FEMA
serves as the federal coordinative agency for consequence management that draws
upon, and does not re-create, the specific skills and resources maintained by
departments and agencies.
However, in the intervening years, turf battles, questions of agency jurisdiction,
and disagreements on FEMA’s authority have surfaced. In the past, some observers
questioned FEMA’s reach and the degree to which its coordination mission intruded
on the authorities of other agencies. During the Reagan Administration, for example,
Attorney General William French Smith argued against provisions in a draft executive
order that assigned FEMA a role that he said exceeded “its proper function as a
coordinating agency for emergency preparedness.”57 Executive Order 11490,58 issued
in 1969, was accordingly modified by President Reagan and the allocation of
emergency preparedness authorities was reconfigured and reissued in E.O. 12656
(summarized above). Also of note, roughly a decade later, President George H. W.
Bush established a Presidential Task Force, headed by a cabinet level officer (Andrew
Card, then Secretary of Transportation and current Chief of Staff to President George
W. Bush), to take coordinating responsibility for the federal relief effort after
Hurricane Andrew devastated south Florida in 1992. The administrative difficulty
was summarized in a FEMA evaluation report, as follows:
The designation of a Presidential Task Force for Florida created confusion
among federal, state, and local officials and the public at large concerning the
respective roles and responsibilities of the Task Force and the Federal
Coordinating Officer (FCO).59
With the backdrop of this history, coordination responsibilities have been
debated in subsequent years, especially with regard to dealing with the consequences
of terrorist attack. In an attempt to resolve these questions, Clinton Administration
officials agreed to a
Concept of Operations Plan (generally referred to as the
CONPLAN) “to provide overall guidance to federal, state and local agencies
concerning how the federal government would respond to a potential or actual
terrorist threat or incident that occurs in the United States, particularly one involving
Weapons of Mass Destruction (WMD).”60 While the CONPLAN may have resolved
some of the discussion, for some it appeared that more needed to be accomplished.
In the months preceding the attacks of September 11, 2001, for example, the Bush
Administration revisited the issue and called for the creation of a new office in FEMA.
57William French Smith, Attorney General, letter to Robert C. McFarlane, Assistant to the
President for National Security Affairs, Washington, Aug. 2, 1984.
58U.S. President (Nixon), “Assigning Emergency Preparedness Functions to Federal
Departments and Agencies,” Exec. Order No. 11490, Oct. 28, 1969, 34 FR 17567.
59U.S. Federal Emergency Management Agency,
Andrew, Iniki, Omar: FEMA Evaluation of
Federal Response and Recovery Efforts, (Washington: 1993), p. 36. An FCO is established
after each major disaster declaration to coordinate federal and non-federal response efforts (42
U.S.C. 5143).
60
United States Government Interagency Domestic Terrorism Concept of Operations Plan
(Washington: 2001), p. iii.
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Office of National Preparedness
On May 8, 2001, President Bush directed FEMA to create an Office of National
Preparedness (ONP) to coordinate “all federal programs dealing with weapons of
mass destruction consequence management.”61 The new office, said the President,
was also to “work closely with state and local governments to ensure their planning,
training, and equipment needs are addressed.” The President’s directive reflected
concerns about duplications, gaps, and inconsistency among federal policies
established to prepare for and manage the consequences of terrorist incidents.62
FEMA director Joe M. Allbaugh implemented the directive on June 5, 2001, when he
announced a functional realignment of FEMA which combined offices administering
disaster preparedness, relief, and mitigation programs; created the ONP; and
transferred to ONP the national security and information security functions that had
been the responsibility of other FEMA offices.63
Since establishment of the ONP and the terrorist attacks in 2001, steps have been
taken to staff the Office and delineate its mission. A statement provided on the
FEMA website explains the mission of the ONP, as follows:
When fully operational, the office will coordinate all federal programs dealing with
weapons of mass destruction consequence management within the Departments of
Defense, Health and Human Services, Justice, and Energy, the Environmental
Protection Agency, and other federal agencies.64
In Senate testimony following the terrorist attacks, the FEMA Director summarized
the role of the ONP as follows:
The principal goal of ONP is to develop a coordinated, local, tribal, state and
federal effort to deal with the consequences of mass destruction in the U.S. On
June 5th, I announced the restructuring of FEMA, which included creating ONP,
to be headed by an Executive Director who reports directly to me. The ONP will
have FEMA employees, detailees from the relevant federal departments and
agencies and, as appropriate, state, tribal and local representatives. On July 2, we
activated ONP at FEMA headquarters.65
61“President Bush on Domestic Preparedness Against Weapons of Mass Destruction,”
available on the FEMA website at [http://www.fema.gov/nwz01/nwz01_33.htm], visited Jan.
24, 2001.
62One such compilation is U.S. General Accounting Office,
Combating Terrorism: Selected
Challenges and Related Recommendations, GAO report 01-822 (Washington: Sept. 20,
2001).
63U.S. Federal Emergency Management Agency,
Functional Realignment, memorandum from
Director Allbaugh to FEMA employees, June 5, 2001.
64“Office of National Preparedness,” available on the FEMA website at
[http://www.fema.gov/nwz02/nwz02_03a.htm], visited Jan. 25, 2002.
65“Testimony (As Written), Joe M. Allbaugh, Director, Federal Emergency Management
Agency, Before the Committee on Environment and Public Works, U.S. Senate,” Oct. 16,
2001, available at [http://www.fema.gov/library/jma101601a.htm], visited Jan. 25, 2002.
CRS-17
On January 7, 2002, longtime FEMA employee Bruce Baughman was appointed
head of the ONP by FEMA Director Allbaugh. The responsibilities of his new office,
however, and those of the new Office of Homeland Security, which President Bush
had established two months earlier, arguably appear redundant.
Office of Homeland Security
On October 8, 2001, President Bush established the Office of Homeland Security
(OHS) within the Executive Office of the President “to develop and coordinate the
implementation of a comprehensive national strategy to secure the United States from
terrorist threats or attacks.”66 The executive order requires OHS to coordinate
federal agency efforts “to detect, prepare for, prevent, protect against, respond to, and
recover from terrorist attacks within the United States.” Among the 12 functions set
out in Section 3 of the executive order are the following three:
!
Preparedness and mitigation (deterrence). Coordinate efforts of federal and
nonfederal entities “to prepare for and mitigate the consequences of terrorist
threats or attacks.”
!
Protection. “Coordinate efforts to protect the United States and its critical
infrastructure from the consequences of terrorist attacks.”
!
Response and recovery. Work with federal and nonfederal entities “to ensure
rapid restoration of transportation systems, energy production, transmission,
and distribution systems; telecommunications; other utilities [and] coordinate
federal plans and programs to provide medical, financial, and other assistance
to victims.”67
E.O. 13228 gives the director of OHS, who is the Assistant to the President for
Homeland Security, primary responsibility “for coordinating the domestic response
efforts of all departments and agencies” when a terrorist threat or attack is evident.
The director is to “review plans and preparations for ensuring the continuity of the
federal government” in the event of an attack. President Bush has created OHS to
ensure that federal and non-federal resources and information are coordinated and
directed toward the protection of civilians.
66“Executive Order Establishing Office of Homeland Security,” available at
[http://www.whitehouse.gov/news/releases/2001/10/20011008-2.html], visited Jan. 25, 2002.
For background and discussion of the mission of OHS, see “Office of Homeland Security,”
by Ronald C. Moe, in the
CRS Electronic Briefing Book on Terrorism, available at
[http://www.congress.gov/brbk/html/ebter178.html], visited Jan. 25, 2002.
67Ibid.
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Issue Discussion
OHS coordinates federal domestic security strategies to improve homeland
defense. The mission, set forth in E.O. 13228, names the OHS director a coordinator
with coordinative power beyond that granted to FEMA — e.g., with regard to
prevention of terrorism. But with regard to preparedness, mitigation, response, and
recovery, there appears to be some degree of duplication in the missions of OHS and
FEMA.
Prior to the attacks of September 11, 2001, some had questioned the
coordination and management of federal efforts to prepare for, manage, and respond
to terrorist incidents. Duplication of effort among agencies and conflicts had been
identified as problems that needed resolution. As of May 8, 2001, the President
viewed the creation of the ONP within FEMA to be one approach toward resolving
these problems. The establishment of the OHS on October 8, 2001, indicates that
additional measures were deemed necessary.
Sorting out the missions of homeland security and terrorism preparedness for
FEMA vis-a-vis the authorities for other agencies remains an unresolved issue that
may lead some to argue that the authorities for FEMA and OHS need to be
reconciled. It may be inferred from information provided by FEMA, however, that
the missions of the agencies are not in conflict, as follows:
The Office of National Preparedness supports the Office of Homeland Security
(OHS) by providing information on how FEMA coordinates all-hazards
preparedness, response and recovery activities for natural and man-made disasters;
setting up the Homeland Security-Emergency Support Team; detailing two staff
members to OHS, and recently completing a state assessment to provide real-time
information regarding state terrorism readiness and planning. These efforts will
help the Office of Homeland Security determine the allocation of funding needed
to meet state capability enhancement needs and to ensure Governor Ridge’s goal
of creating a national strategy to deal with the broad range of terrorism issues that
is truly representative of all levels of government.68
This FEMA statement indicates a flow of information from FEMA to OHS and
cooperation between the two federal entities. The mandate for OHS, as set forth by
President Bush in Executive Order 13228, appears to overlap the preparedness and
consequence management responsibilities that Congress has assigned to FEMA. In
addition, the role of the ONP within FEMA remains unclear, particularly in light of
the current responsibilities assigned to and administered by the Department of Justice
in training and equipping non-federal first responders.69
68“Office of National Preparedness,” available on the FEMA website at
[http://www.fema.gov/nwz02/nwz02_03a.htm], visited Jan. 25, 2002.
69The Bush Administration’s FY2003 budget proposes the transfer of the resources and
authority from the Department of Justice to FEMA. See U.S. President,
Fiscal Year 2003
Appendix, Budget of the United States Government (Washington: 2002), p. 937.
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Legislative Options
At least five legislative options exist with regard to clarifying the potential
overlap of FEMA and OHS missions:
1.
Do nothing, assuming that OHS and FEMA coordination authorities do not
create difficulties;
2.
Modify or overturn the President’s creation of ONP in FEMA through
legislation;
3.
Support the President’s decision to create ONP by passing authorizing
legislation for the office or appropriating funds for it;
4.
Clarify the boundaries between FEMA and OHS responsibilities through
legislation specifying authority for OHS or FEMA;
5.
Appropriate funds to allocate resources between FEMA and OHS.
Option 1. Congress may choose to keep FEMA’s existing authorities intact and
allow the President to staff ONP within FEMA through transfers from other federal
agencies. Prior to the attacks of September, 2001, the Director of FEMA reportedly
“requested 75 personnel positions and $25 million” for the ONP, with “a number” of
those positions to be filled by transfers from other agencies, including the
Departments of Defense and Justice.70 Exercising this option arguably might meet a
short term need to provide the Bush Administration maximum flexibility in organizing
the federal government to prepare for and deal with terrorist threats. Some observers
would argue, however, that congressional action is needed to ensure that the shared
responsibilities do not lead to administrative difficulties.
Option 2. Congress may consider prohibiting an expansion of FEMA’s mission
by enacting legislation that would halt staffing of ONP or would modify its mission.
Advocates of this position may argue that duplication and overlap between FEMA
and OHS could be prevented through such legislation. In addition, it may be argued
that if FEMA is given additional authority for preparedness for, and consequence
management of, terrorist attacks, the share of FEMA’s resources for natural disaster
response and relief might be reduced. This concern arises because after Hurricane
Andrew devastated southern Florida in 1992, some analysts argued that FEMA
officials’ decision not to integrate national security and disaster response assets
contributed to FEMA’s reportedly inefficient response to that disaster. Opponents
may contend that the Executive is in a better position to judge what structure is
needed to effectively administer these large and growing responsibilities.
Option 3. Congress might reinforce the President’s decision to establish the ONP
within FEMA and specify the authorities of the office. Precedents exist for Congress
to specify that certain components be established in the agency. The positions of both
the Flood Insurance Administrator and the U.S. Fire Administrator within FEMA
were created through legislation (42 U.S.C. 4011 and 15 U.S.C. 11331, respectively)
prior to the establishment of FEMA and placed, respectively, within the Departments
of Housing and Urban Development and Commerce. Those functions were
70“Allbaugh Advocates ‘Common Sense’ Approach to Flood Control Decisions,”
Emergency
Preparedness News, vol. 25, June 5, 2001, p. 113.
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transferred to FEMA in
Reorganization Plan No. 3 of 1978 and E.O. 12127.
Legislation to establish the ONP with FEMA would indicate congressional approval
of the expanded role of FEMA, and could help resolve perceptions of blurred lines of
authority. Through such legislation, for example, Congress could require that the
Director of ONP report regularly to Congress on the coordination of OHS and FEMA
activities. Opponents of this option might argue that it is premature and unnecessary
at this time to legislatively define the duties of the ONP especially in light of the
unique and fluid situations presented by terrorist threats.
Option 4. Congress could investigate and possibly enact legislation to resolve
apparent duplication in the missions of FEMA and the OHS. As noted previously in
this report, FEMA’s mission derives from 31 statutes and executive orders, including
a reorganization plan, not from a unified statute. OHS authority derives from E.O.
13228. Such legislation could specifically resolve questions about the authority of the
directors to coordinate federal preparedness and response activities. Opponents of
this approach would likely argue that such legislation would be premature and could
be seen as limiting the President’s flexibility at a difficult time.
Option 5. Using the appropriations process, Congress could direct the allocation
of resources, and therefore capabilities, between the two agencies. This option has,
to a limited extent, already been exercised by the Congress. Conferees on the VA-
HUD Independent Agencies Appropriations legislation (P.L. 107-73) noted the need
to clarify the role of FEMA in homeland security. The conferees withheld funds for
ONP in the FY2002 appropriations pending evaluation of “a comprehensive plan
outlining FEMA’s role in dealing with terrorism and its consequences.”71 Similar
language was included in the conference report that accompanied the FY2002
supplemental appropriations (P.L. 107-117), as follows:
The conferees are concerned about the continuing lack of information regarding
a new Office of National Preparedness within FEMA and agree, that while a
portion of the funding provided by this appropriation may be used to establish the
Office, FEMA must inform the Congress of the structure, responsibilities, and
roles of this new Office, with particular emphasis on its relationship s to the Office
of Homeland Security and the Department of Justice.72
The conferees required that FEMA report on this matter to Congress in 2002.73
71U.S. Congress, Conference Committees, 2001,
Conference Report on H.R. 2620,
Departments of Veterans Affairs and Housing and Urban Development, and Independent
Agencies Appropriations Act, 2002, conference report to accompany H.R. 2620, H.Rept.
107-272, 107th Cong., 1st sess. (Washington: 2001), in
Congressional Record, vol. 147, Nov.
6, 2001, p. H7828.
72U.S. Congress, Conference Committees, 2001,
Conference Report on H.R. 3338,
Department of Defense Appropriations Act, 2002, conference report to accompany H.R.
3338, H.Rept. 107-350, 107th Cong., 1st sess. (Washington: 2001), in
Congressional Record,
vol. 147, Dec. 19, 2001, Book II, p. H10818.
73Ibid.
CRS-21
Conclusion
Through statutory and administrative directives, FEMA officials administer 31
non-classified policies. The scope of these authorities range from broad coordinative
and assistance responsibilities (the Stafford Act, the Defense Production Act) to
specific tasks associated with certain risks or potential threats (dam safety, emergency
food and shelter aid).
While all of these authorities arguably fall within the jurisdiction of a broadly
defined emergency management function, some, notably those concerning
preparedness for and consequence management of terrorist incidents, touch upon the
jurisdictions of other agencies. The broad mandate for FEMA differs from that of
OHS, but in some areas it arguably overlaps responsibilities set out in E.O. 13228.
Congress may consider the need to legislatively define the functions of FEMA and
OHS. Congress might also conduct oversight hearings on the authorities and mission
of the agency and then identify and evaluate legislative options.