Overview of Components of the National Response Plan and Selected Issues

Overview of Components of the National Response Plan and Selected Issues

Order Code RS21697
August 2, 2004
CRS Report for Congress
Received through the CRS Web
Overview of Components of the
National Response Plan and Selected Issues
Keith Bea, Coordinator
Specialist in American National Government
Government and Finance Division
Summary
Congress and the President have directed the Department of Homeland Security
(DHS) to consolidate existing emergency response plans into one national response plan
(NRP) and develop a national incident management system (NIMS). The NRP,
currently under development, will establish an overarching structure to coordinate
federal resources in responding to a significant emergency including an attack, natural
disaster, accidental hazardous material spill, or other crisis that overwhelms state
resources. The Administration plans to combine five existing plans into the NRP; it
released an Initial NRP on October 10, 2003, and projects the final NRP to be completed
in early 2005. DHS released the NIMS on March 1, 2004, thereby establishing a
standard incident command system (ICS) to guide the response to major catastrophes.
Related issues that Congress may consider include the implication of instituting a new
administrative structure, the needs and mechanisms for sharing classified information,
federalism implications, the recommendation of the 9/11 commission concerning unified
command structures by emergency response agencies, and the role of non-federal
responders. This report will be updated as developments warrant.
Authorities (by Elizabeth Bazan, American Law Division)
Authority for the creation of the National Response Plan (NRP) and the National
Incident Management System (NIMS) draws from two sources, Subsections 502(5) and
(6) of the Homeland Security Act of 2002, P.L. 107-296 (passed Nov. 25, 2002), and
Sections 15 and 16 of the Homeland Security Presidential Directive 5 (hereinafter HSPD-
5). In Subsection 502(5) of P.L. 107-296, the Secretary of Homeland Security, acting
through the Under Secretary for Emergency Preparedness and Response, is directed to
“[build] a comprehensive national incident management system with federal, state, and
local government personnel, agencies, and authorities, to respond to” attacks and
disasters. Subsection 502(6) requires the consolidation of “existing Federal Government
emergency response plans into a single, coordinated national response plan.”
Congressional Research Service ˜ The Library of Congress

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HSPD-5, issued on February 28, 2003, provides a framework for management of
domestic incidents. Section 15 of the directive requires development of NIMS to include
the terminology; principles; concepts of the incident command system (ICS); multi-
agency coordination systems; unified command; training; identification and management
of resources; qualifications and certification; and collection, tracing, and reporting of
incident information and incident resources. Appendix A of NIMS sets out the ICS,
which requires the establishment of standard components (command, operations,
planning, logistics, and finance/administration) when emergency officials respond to a
major catastrophe. A sixth, intelligence, may also be established if required. Section 16
of this presidential directive mandates that the Secretary of Homeland Security “develop,
submit for review to the Homeland Security Council, and administer a National Response
Plan (NRP).” This plan must integrate federal domestic prevention, preparedness,
response, and recovery plans into one all-discipline, all-hazard plan. In developing and
implementing the NRP, the secretary must consult with the Assistant to the President for
Economic Policy, the Director of the Office of Science and Technology Policy, and other
appropriate federal officials. The NRP is to be unclassified, although, if required, certain
operational aspects may be included in classified annexes to it.1
HSPD-5 sets out four goals for the NRP: (1) Through NIMS the NRP is to provide
the structure and mechanisms for national-level policy and operational direction for
federal support to state and local incident managers, and for the exercise of direct federal
authorities and responsibilities. (2) The NRP is to include protocols for operating under
different threats or threat levels; in so doing, it must incorporate existing federal
emergency and incident management plans (modified as needed) as integrated
components of the NRP or as supporting operational plans, as well as operational plans
or annexes concerning public affairs, intergovernmental communications, and others as
needed. (3) The NRP must be consistent with regard to reporting incidents, providing
assessments, and making recommendations to the President, the Secretary, and the
Homeland Security Council. (4) The NRP is to include requirements for steady
improvements drawn from testing, exercises, and experience with incidents, as well as
new information and technologies.
Existing Plans
Federal Response Plan. (By Keith Bea, Government and Finance Division.)
The Federal Response Plan (FRP) was developed in the early 1990s by the Federal
Emergency Management Agency (FEMA) pursuant to disaster assistance authority set out
in the Robert T. Stafford Disaster Relief and Emergency Relief Act (the Stafford Act, 42
U.S.C. 5121 et seq). Consequence management actions guided by the FRP are triggered
when the President issues a major disaster declaration. The FRP coordinates the delivery
of federal services and the actions of federal and non-federal officials in the area included
in the presidential declaration. Much of the coordination is achieved through the
appointment of the federal coordinating officer (FCO) by the President (42 U.S.C. 5143).
Under the terms of the FRP, 25 federal agencies and the American Red Cross provide
resources and support in response to requests from officials on the scene in the disaster
1 The NIMS document is available at [http://www.dhs.gov/interweb/assetlibrary/NIMS-90-web.
pdf]. The text of the initial NRP, still in process, is available at [http://www.nemaweb.org/docs/
national_response_plan.pdf], both visited Aug. 2, 2004.

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area. Twelve emergency support functions (ESFs) identify the primary and secondary
agencies responsible for providing assistance and ensuring that immediate needs are met
to save lives and protect property from further damage, to the extent possible. In addition,
the FRP includes annexes that address recovery, support, and terrorism incident activities.
The FRP is available at [http://www.fema.gov/rrr/frp/].
CONPLAN. (By Bill Krouse, Domestic Social Policy Division.) Issued in January
2001 and consistent with President Clinton’s decision directive on counterterrorism
(PDD-39, issued June 21, 1995), and signed by seven agency heads, the Interagency
Domestic Terrorism Concept of Operations Plan (CONPLAN) “outlines an organized and
unified capability for a timely, coordinated response by federal agencies to a terrorist
threat or act.” CONPLAN, like PDD-39, distinguishes between crisis management
(prevention of and management of the response to threats or incidents) and consequence
management (coordination of federal response to support state and local governments
affected by an incident). Under CONPLAN, the Federal Bureau of Investigation (FBI)
is designated the lead federal agency (LFA) responsible for crisis management in the
event of a terrorist threat or incident. Among other responsibilities, the FBI is charged
with forming and deploying interagency domestic emergency support teams (DESTs).
Depending upon the type of terrorist threat or incident, the DEST would marshal the
resources of the appropriate federal agencies, including units of the Departments of
Defense and Energy, so that their combined intelligence and tactical expertise could be
brought to bear in a cohesive and coordinated manner. When the Attorney General
determines that the appropriate situational response has shifted from crisis to consequence
management, the FBI would transfer the LFA role to FEMA. CONPLAN is available at
[http://www.fema.gov/rrr/conplan/conpln2c.shtm].
Radiological Response Plan. (By Mark Holt, Resources, Science, and Industry
Division.) The Federal Radiological Emergency Response Plan (FRERP), which became
effective May 8, 1996, is the operational plan for federal agencies to carry out their
responsibilities during peacetime radiological emergencies. The plan designates an LFA
to coordinate the federal response to each type of radiological emergency. For example,
the Nuclear Regulatory Commission (NRC) is the LFA for radiological emergencies at
nuclear reactors, nuclear fuel facilities, and other fixed facilities licensed by NRC or by
states with licensing authority. The Department of Energy (DOE) and Department of
Defense (DOD) are the LFAs for facilities they own. For transportation accidents, NRC
is the LFA for shipments by its licensees; DOE and DOD are the LFAs for their own
shipments; and EPA is the LFA for other shipments. Federal off-site non-radiological
resource support is to be coordinated by FEMA. The plan also gives several other federal
agencies specific responsibilities for radiological emergency response, such as the role of
the FBI in cases of sabotage or terrorism. The FRERP may be found at [http://
www.au.af.mil/au/awc/awcgate/frerp/frerp.htm].
National Contingency Plan. (By Mark Reisch, Resources, Science, and Industry
Division.) The National Contingency Plan (NCP, at 40 CFR Part 300) was originally
established under the Clean Water Act to coordinate the responses of federal agencies to
oil spills in coastal areas. Substantial revisions to the Plan were required after 1980,
however, when Congress enacted the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA, 42 U.S.C. 9601-9675, often referred
to as “Superfund”), and it was further revised to implement requirements of the Oil
Pollution Act of 1990 (33 U.S.C. 2701 et. seq.). CERCLA authorizes a federal response

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to a public health or environmental threat due to the release of a hazardous substance,
pollutant, or contaminant, as well as long-term remedial work at contaminated sites where
a release may present an imminent and substantial danger to the public health or welfare,
or the environment (CERCLA §104(a)). The National Contingency Plan created the
National Response Team, which is made up of 16 federal agencies, and Regional
Response Teams (RRTs), which additionally include state and (as agreed upon by the
states) local government representatives; area committees and local committees are also
provided for in the RRTs. The NCP provides for three kinds of activities: (1)
preparedness planning and coordination for response, including the roles of federal and
state agencies; (2) notification and communications from the time an incident is first
reported, and including public information and community relations activities; and (3)
response operations at the scene of a discharge or release. The NCP designates the U.S.
Environmental Protection Agency (EPA) as the LFA for oil and hazardous substance
releases on land, and gives jurisdiction to the U.S. Coast Guard (USCG) for spills in
coastal waters and deepwater ports. Response actions are directed and coordinated by an
on-scene coordinator, who is designated by the lead agency. Information on and links to
elements of the NCP may be found at [http://www.epa.gov/oilspill/ncpover.htm].
Distant Shores. (By Karma Ester, Domestic Social Policy Division.) In 1994 the
Department of Justice, in conjunction with the U.S. Coast Guard and the Department of
Defense, reportedly developed “Operation Distant Shores” to respond to a potential mass
influx of migrants to the United States, notably asylum seekers from Haiti or Cuba.2
According to news reports, the plan included using abandoned and underutilized military
bases to provide temporary shelter for unauthorized migrants while they awaited
processing, and increasing the number of U.S. Coast Guard and other military vessels
patrolling the Florida Straits in order to interdict as many migrants at sea as possible. In
1995 the Clinton Administration reportedly expanded the plan to address similar mass
migrations by land as well as by sea. Scant documentation exists on Operation Distant
Shores, which reportedly calls for the participation of 40 federal, state, and local agencies.
Currently DHS reportedly is drafting an update known as “Vigilant Century” to address
mass migration. It is not known when this new plan will be released. Information on the
“Alien Migrant Interdiction” activities of the USCG are presented at [http://
www.uscg.mil/hq/g-o/g-opl/mle/amioyear.htm].
Development of the NRP
The Homeland Security Act does not establish a schedule for development of the
NRP.3 HSPD-5 requires that certain actions be taken by specified dates, including
publishing an initial version (INRP) and presenting a plan for development by April 1,
2003; reviewing authorities and preparing recommendations for the President on revisions
needed to implement the NRP by September 1, 2003; and ensuring that federal agency
heads revise existing plans to correspond to the INRP by June 1, 2003. It is not possible
2 Alfonso Chardy, “U.S. Ready in Case of Major Exodus from Cuba,” Miami Herald, April 20,
2003, p. 1A. Kevin Hall, “Mexico Mum on US Plan to Thwart Mass Exodus,” Journal of
Commerce, April 11, 1995, p. 1A.
3 Section 507 of P.L. 107-296 specifies that FEMA remain the lead agency for the FRP and
required revision of the FRP within 60 days of enactment. The Interim Federal Response Plan
was released in January 2003.

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to determine the extent to which these deadlines were met, but it appears that considerable
progress has been achieved with the release of the INRP on October 10, 2003.4 Section
20 of HSPD-5 requires that federal agencies use grant and contracting authority to ensure
that states and localities adopt NIMS. One of the recommendations of the National
Commission on Terrorist Attacks Upon the United States coincides with this requirement.
News reports and statements from professional associations and other sources
indicate that throughout 2003 DHS sponsored meetings with representatives of federal
and non-federal organizations’ stakeholders. Concerns and questions have been raised
regarding the exclusion of some stakeholders and the process used to develop the NRP.5
Others, however, have expressed support for the approach taken by DHS.6
Selected Issues
The development of the NRP and NIMS presents Members of the 108th Congress
with several options, including oversight of DHS implementation of the requirement in
Section 502(6) of the Homeland Security Act; investigation of the process used by DHS
in developing the NRP; consideration of the need to revisit underlying statutory
authorities; coordination with constituents (notably state and local response organizations)
that will implement the NRP; and assessment of the adequacy of funding to ensure that
the response to attacks, natural disasters, accidents, and other emergencies is sufficient.
The breadth and reach of the NRP raises many issues within each of these categories of
possible congressional action.7 They include:
! The Stafford Act authorizes the President to issue a “major disaster” or
an “emergency” declaration under specified circumstances.8 The FRP
states that “[n]o direct federal assistance is authorized prior to a
Presidential declaration.”9 HSPD-5, however, requires that the Secretary
of Homeland Security coordinate the federal response “if and when any
4 One author identified as being familiar with the process has noted: “Observers of the federal
government may be pleasantly surprised to see such close adherence to the President’s
timetable.” See William C. Nicholson, “The New (?) Federal Approach to Emergencies,”
Homeland Protection Professional, vol. 2, Aug. 2003, p. 8.
5 Ibid. and Martin Edwin Andersen, “Local Officials Howl at DHS Emergency Management
Plan,” CQ Homeland Security, Aug. 8, 2003, at [http://homeland.cq.com/hs/display.do?dockey=/
usr/local/cqonline/docs/html/hsnews/108/hsnews108-000000794874.html@allnews&metapub
=HSNEWS&seqNum=1&searchIndex=1], visited Dec. 11, 2003.
6 National Emergency Management Association, “State Emergency Managers Support
Stakeholder Approach by DHS,” news release of Oct. 15, 2003.
7 For an overview of issues and recommendations developed by the U.S. National Response
Team, see U.S. National Response Team, Reconciling Federal Emergency Response Plans —
NRT Homeland Security Recommendations (Washington, 2003), at [http://www.nrt.org/
production/nrt/home.nsf/resources/Publications1/$File/Final_NRT_Plan_Reconciliation_Anal
ysis_Report.pdf], visited Dec. 15, 2003.
8 42 U.S.C. 5170, 5191.
9 U.S. Federal Emergency Management Agency, Federal Response Plan (Washington: Jan.
2003), p. 7.

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one of the following four conditions applies ...”10 Three of the four
conditions do not involve a presidential declaration. To what extent, if
any, does the authority in HSPD-5 overreach the authority given by
Congress in the Stafford Act, the Homeland Security Act, or other
statutes?
! Under FRERP, lead federal agencies have established emergency
operations centers and coordinating mechanisms that may not mesh with
the system envisioned by the INRP. For example, one of the functions
of the NRC emergency operations center is to provide information about
commercial nuclear reactor emergencies, but the INRP calls for the
National Homeland Security Operations Center (HSOC) to perform that
function. The establishment of a Joint Field Office for a radiological
emergency, as recommended by the INRP, could also prove problematic
during a commercial reactor incident, because the current system would
rely on the reactor operator’s emergency center for local coordination.
! The concerns of certain groups, including public works organizations,
agricultural disaster experts (see H.R. 3157, passed by the House on
November 17, 2003), and public health authorities, do not appear to be
addressed in the INRP. Questions may be raised about the lack of
representation of these groups in the process thus far, as well as other
process concerns. Also, the inclusion of federal response plans for
specified public health emergencies (smallpox, SARS, and pandemic
influenza) may require additional consideration.
! HSPD-5 requires that the NRP be unclassified, but provides that if
“certain operational aspects require classification,” they are to be
included as classified annexes. How will the inclusion of classified
information related to mass population migrations impact the ability of
federal and non-federal agencies to administer the plan? What
procedures would be incorporated to ensure that “Vigilant Century”
provisions, if included in the NRP, help and do not inhibit the
participation of responding agencies?
! National, regional, area and local teams have been established under the
NCP and operate on an ongoing basis (responding hundreds of times a
year) to ensure that the response to a release or spill of oil or hazardous
substances is appropriate and efficient. Teams that respond to disasters
under other plans, by comparison, do not operate on a continuing basis.
Will the NRP require establishment of a response team structure similar
to that used under the NCP? How will a new response team structure be
established to reflect the objectives of all of the plans?
10 U.S. President George W. Bush, “Homeland Security Presidential Directive/HSPD-5,”
Washington, Feb. 28, 2003.