Chapter Appendix E - Endnotes
Section Chapter Two: National Preparedness — A Primer
Chapter Two: National Preparedness — A Primer
1 Homeland Security Presidential Directive 5, Domestic Incident Management, states “ t he Federal Government recognizes the roles and responsibilities of State and local authorities in domestic incident management. Initial responsibility for managing domestic incidents generally falls on State and local authorities. The Federal Government will assist State and local authorities when their resources are overwhelmed, or when Federal interests are involved. The Secretary will coordinate with State and local governments to ensure adequate planning, equipment, training, and exercise activities. The Secretary will also provide assistance to State and local governments to develop all-hazards plans and capabilities, including those of greatest importance to the security of the United States, and will ensure that State, local, and Federal plans are compatible.” The White House, Homeland Security Presidential Directive-5 “HSPD-5” (Washington, DC, February 2003), § 6.
2 “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45.
3 U.S. Constitution art. 1, sec. 10; U.S. Constitution art. 4, sec. 2; United States v. Lopez, 514 U.S. 549, 552 (1995) (“The Constitution creates a Federal Government of enumerated powers”); McCulloch v. Maryland, 17 U.S. 316 (1819); The Federalist No. 45. “It must never be forgotten that the Federal government is one of enumerated powers and that it does not possess a general police power,” Ronald D. Rotunda and John E. Novak, Treatise on Constitutional Law, 3rd ed. (Minnesota: West Group Publishing, 1999), 346.
4 U.S. Constitution, amend. 10.
5 U.S. Constitution, art. 1, sec. 8; art. 2, sec. 2.
6 U.S. Constitution, art. 4, sec. 4.
7 10 U.S.C. § 331 (2005). The other two sections of the Insurrection Act permit Presidential action independent of State requests. The President may send in Federal military forces or federalize a State’s National Guard troops without a request from the Governor in those situations where the President finds it necessary to enforce Federal laws, judicial decisions, or protect Federal rights. 10 U.S.C. §§ 332, 333 (2005).
8 See generally, Thomas E. Drabek and Gerard J. Hoetmer “Drabek & Hoetmer” , Emergency Management: Principles and Practice for Local Government (Washington, DC: International City Management Association, 1991), 3-29.
9 National Academy of Public Administration, Coping With Catastrophe: Building an Emergency Management System to Meet People’s Needs in Natural and Manmade Disasters “NAPA Report” (Washington, DC: National Academy of Public Administration, 1993), 10.
10 NAPA Report, 10.
11 See Drabek & Hoetmer, 6-7; NAPA Report, 10-11.
The Federal Emergency Management Agency—a former independent agency that became part of the new Department of Homeland Security in March 2003—is tasked with responding to, planning for, recovering from and mitigating against disasters. FEMA can trace its beginnings to the Congressional Act of 1803, generally considered the first piece of disaster legislation. In the century that followed, ad hoc legislation was passed more than 100 times in response to hurricanes, earthquakes, floods and other natural disasters.
By the 1930s, when the Federal approach to problems became popular, the Reconstruction Finance Corporation was given authority to make disaster loans for repair and reconstruction of certain public facilities following an earthquake, and later, other types of disasters. In 1934, the Bureau of Public Roads was given authority to provide funding for highways and bridges damaged by natural disasters. The Flood Control Act, which gave the U.S. Army Corps of Engineers greater authority to implement flood control projects, was also passed. This piecemeal approach to disaster assistance was problematic and it prompted legislation that required greater cooperation between Federal agencies and authorized the President to coordinate these activities.
The 1960s and early 1970s brought massive disasters requiring major Federal response and recovery operations by the Federal Disaster Assistance Administration, established within the Department of Housing and Urban Development (HUD). Hurricane Carla struck in 1962, Hurricane Betsy in 1965, Hurricane Camille in 1969 and Hurricane Agnes in 1972. The Alaskan Earthquake hit in 1964 and the San Fernando Earthquake rocked Southern California in 1971. These events served to focus attention on the issue of natural disasters and brought about increased legislation. In 1968, the National Flood Insurance Act offered new flood protection to homeowners, and in 1974 the Disaster Relief Act firmly established the process of Presidential disaster declarations.
However, emergency and disaster activities were still fragmented. When hazards associated with nuclear power plants and the transportation of hazardous substances were added to natural disasters, more than 100 Federal agencies were involved in some aspect of disasters, hazards and emergencies. Many parallel programs and policies existed at the State and local level, compounding the complexity of Federal disaster relief efforts. The National Governor's Association sought to decrease the many agencies with whom State and local governments were forced to work. They asked President Jimmy Carter to centralize Federal emergency functions.
President Carter's 1979 executive order merged many of the separate disaster-related responsibilities into a new Federal Emergency Management Agency (FEMA). Among other agencies, FEMA absorbed: the Federal Insurance Administration, the National Fire Prevention and Control Administration, the National Weather Service Community Preparedness Program, the Federal Preparedness Agency of the General Services Administration and the Federal Disaster Assistance Administration activities from HUD. Civil defense responsibilities were also transferred to the new agency from the Defense Department's Defense Civil Preparedness Agency. See U.S. Department of Homeland Security, Federal Emergency Management Agency, “FEMA History,” .
12 The Red Cross had originally been chartered in 1900, but its re-chartering in 1905 significantly expanded its role in responding to disasters. See Brien R. Williams, “The Federal Charter of the American Red Cross,” American Red Cross Museum, April 2005, ; and American Red Cross, “A Brief History of the American Red Cross 2001,” . In response to the San Francisco earthquake and fire of 1906, President Theodore Roosevelt announced that all Federal aid was to be channeled through the American Red Cross. Federal troops were sent to the city in order to provide security and the Federal government established tent camps where those affected by the disaster were provided with shelter and food. NAPA Report, 10.
13 NAPA Report, 11.
14 NAPA Report, 11; Federal Civil Defense Act of 1950, as amended, Public Law 920, 81st Congress, 2nd session (January 12, 1951)
15 The order stated, “Federal disaster relief provided under the Federal Civil Defense Act of 1950 shall be deemed to be supplementary to relief afforded by state, local, or private agencies and not in substitution therefor. . .” Executive Order no. 10427, 18 Fed. Reg. 407 (1953).
16 NAPA Report, 11 (citing Message from the President of the United States transmitting a report on “New Approaches to Federal Disaster Preparedness and Assistance,” May 14, 1973).
17 The Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 100-707, § 5170, 102 Stat. 4689 (1988) (amended 2000) “Stafford Act” .
18 Stafford Act, 42 U.S.C. § 5170 and § 5191 (2005) require the Governor’s request as a condition for Presidential declaration of a major disaster. Robert Theodore Stafford served in Congress as a Representative and a Senator from Vermont. Prior to his Congressional career, Stafford served in the United States Navy during both World War II and during the Korean conflict. He was the Governor of Vermont from 1959-1961. While in the Senate, he led the passage of the Stafford Act, which was the amended version of the 1974 Disaster Relief Act (Disaster Relief Act of 1974, Pub. L. No. 93-288, § 401, 88 Stat. 143). For additional information, “Stafford, Robert Theodore,” Biographical Directory of the United States Congress, .
19 This figure represents an average since the Disaster Relief Act was enacted in 1974. U.S. Department of Homeland Security, Federal Emergency Management Agency, “Annual Major Disaster Declaration Totals,” . U.S. Department of Homeland Security, Federal Emergency Management Agency, “2004 Federal Disaster Declarations,” .
20 “Discipline” refers to the various emergency response fields (e.g., police, medical, firefighters).
21 The White House, Office of Homeland Security, National Strategy for Homeland Security (Washington, DC, July 2002), 42.
22 6 U.S.C. § 312 (2005) (requiring the Secretary to execute these responsibilities through the Under Secretary for Emergency Preparedness and Response).
23 The White House, “President Bush signs Homeland Security Act,” news release, November 25, 2002, .
24 U.S. Department of Homeland Security, “Department of Homeland Security Facts for March 1, 2003,” February 28, 2003, . See also The White House, “Ridge Sworn In as Secretary of Homeland Security,” news release, January 24, 2003, . Before becoming Secretary of Homeland Security, Thomas Joseph Ridge was the first Homeland Security Advisor to the President of the United States and Director of the White House Office of Homeland Security, the precursor to the current Homeland Security Council. Prior to his service to the President, Secretary Ridge was the governor of Pennsylvania. The White House, “Biography of Secretary Tom Ridge,” .
25 HSPD-5, § 4.
26 HSPD-5, § 18.
27 U.S. Department of Homeland Security, National Incident Management System “National Incident Management System” (Washington, DC, 2004), ix.
28 National Incident Management System, 2.
29 U.S. Department of Homeland Security, Federal Emergency Management Agency, “NIMS and the Incident Command System,” . The 9/11 Commission found that the September 11, 2001, attacks demonstrated the need for nationwide adoption of the ICS. See National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (New York: WW Norton and Company), 397. After President Bush issued HSPD-5 on February 28, 2003, the Department of Homeland Security worked with State and local governments, the emergency management community, the private sector and other key stakeholders to develop the National Incident Management System.
30 National Incident Management System, 7.
31 National Incident Management System, 138.
32 National Incident Management System, 11.
33 National Incident Management System, 7.
34 National Incident Management System, 14-16.
35 The President directed the development of a National Response Plan to align Federal coordination structures, capabilities, and resources into a unified, all-discipline, and all-hazards approach to domestic incident management. See HSPD-5. The development of the NRP included extensive vetting and coordination with Federal, State, local, and tribal agencies, nongovernmental organizations, private-sector entities, and the first-responder and emergency management communities. For a list of the signatories of the NRP, see U.S. Department of Homeland Security, National Response Plan “National Response Plan” (Washington, DC, December 2004), iii-viii.
36 National Response Plan, 15.
37 States and locals, using mutual aid agreements, are frequently able to respond without Federal assistance. In addition, many requests by Governors for Federal assistance are made that do not result in a disaster declaration but are nevertheless significant.
38 See generally, National Response Plan.
39 The Catastrophic Incident Annex is an integral part of the National Response Plan. It lays out the “context and overarching strategy” for response to catastrophic incidents. It also presages the publication of the Catastrophic Incident Supplement—“a more detailed and operationally specific” plan for catastrophic incident response. U.S. Department of Homeland Security, “Catastrophic Incident Annex,” in National Response Plan, pg.“CAT-1.” As of February 2006, the Catastrophic Incident Supplement exists in draft form only, and has not been officially released. A catastrophic incident is defined as “Any natural or manmade incident, including terrorism, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions. . . .” National Response Plan, 63. Although the National Response Plan by virtue of the Catastrophic Incident Annex did anticipate the need for a more robust Federal response to a catastrophic incident, that is all it did. Without the Catastrophic Incident Supplement, that acknowledgement was not made operational and thus had no practical effect.
40 National Response Plan, 3.
41 National Response Plan, 3.
42 National Response Plan, 1.
43 HSPD-5, § 4.
44 National Response Plan, 4.
45 Governor Blanco’s letter to the President requesting Federal assistance in the form of an emergency declaration seems to have satisfied the second criterion, while the substantial involvement of multiple Federal departments and agencies seems to have satisfied the third. On August 27, 2005, Governor Kathleen Blanco sent a letter to President Bush requesting an emergency declaration for the State of Louisiana. The letter stated, “I have determined that this incident is of such severity and magnitude that effective response is beyond the capabilities of the State and affected local governments, and that supplementary Federal assistance is necessary to save lives, protect property, public health, and safety, or to lessen or avert the threat of a disaster.” Kathleen Blanco, Governor of Louisiana, “Letter to President Bush requesting that he declare an emergency for the State of Louisiana due to Hurricane Katrina” (Baton Rouge, August 27, 2005). That same day President Bush declared a state of emergency in Louisiana, stating, “I have determined that the emergency conditions in certain areas of the State of Louisiana, resulting from Hurricane Katrina beginning on August 26, 2005, and continuing is of sufficient severity and magnitude to warrant an emergency declaration…” For complete text of declaration, see 70 Fed. Reg. 53238 (Sept. 7, 2005).
46 National Response Plan, 4.
47 National Response Plan, 7.
48 Prior to Katrina’s landfall on the Gulf Coast, all of the lead agencies responsible for various support activities had already deployed liaisons to FEMA headquarters or field locations, and the Federal and State coordinating officers had co-located in Baton Rouge to begin establishing a unified command. Upon declaring an INS, the Secretary designated a PFO. NRP actions that had not yet been taken at this time included standup of the Interagency Incident Management Group and establishment of a fully functional Joint Field Office. U.S. Department of Homeland Security, “Hurricane Katrina DHS SITREP #4,” August 27, 2005, 11-15, indicates all ESFs have been activated. Former Federal Coordinating Officer of Louisiana, William Lokey, states, “On Saturday morning, August 27, 2005, I was assigned to respond with the ERT-N to Louisiana as FCO for Katrina Operations. I arrived in Baton Rouge late in the afternoon. After checking in with FEMA staff who had been working in New Orleans on a previously declared disaster and who had evacuated to Baton Rouge, I went to the Louisiana State Emergency Operations Center. There, I met with FEMA staff from Region VI that had responded as the Advance Emergency Response Team (ERT-A), other members of the ERT-N who were arriving, and Colonel Jeff Smith (State Coordinating Officer), my primary counterpart for State of Louisiana operations. My first priority was to work with Jeff Smith to identify the State’s priorities, then to organize my staff to start planning and working with our State counterparts to identify tasks and objectives to meet those priorities. The State was heavily involved in the ongoing evacuation efforts but did begin working with us on such issues as search and rescue, commodity distribution, and medical needs. We worked late into the night and began again early on Sunday morning . . . Other ERT members from the Emergency Support Functions (ESF) had arrived and began discussions with their counterparts. These included but were not limited to people from ESF-1 Transportation, ESF-8 Health and Medical, and the Defense Coordinating Officer. We worked on identifying distribution sites; sending food and water to the Superdome; coordinating with health officials in New Orleans and the State; and planning with State and Federal agencies on potential search and rescue efforts.” William Lokey, Federal Coordinating Officer for Louisiana, testimony before a hearing on Hurricane Katrina Preparedness and Response by the State of Louisiana, on December 14, 2005, House Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, 109th Congress, 1st session.
49 FEMA has used the NRP during all major disasters since the NRP was adopted. National Response Plan, Appendix 5. .
50 Operationally, the Federal government was utilizing the NRP before landfall and prior to the declaration of an INS.
51 The Joint Field Office (JFO) structure and Principal Federal Official (PFO) position can be implemented without an INS declaration by the Secretary of Homeland Security. National Response Plan, 28-33. The NRP states, “During actual or potential Incidents of National Significance, the overall coordination of Federal incident management activities is executed through the Secretary of Homeland Security” (emphasis added). National Response Plan, 15. This suggests that the Secretary can create the structures found in the NRP, such as JFO and PFO, even if there is only the potential for an INS, and an INS has not yet been declared.
52 National Response Plan, 28-33.
53 HSPD-5, § 5.
54 National Response Plan, 71.
55 42 U.S.C. § 5143 (2005); National Response Plan, 65. The delineation of roles and responsibilities between the statutorily empowered FCO and the policy constructed PFO are unclear. Section 5143 of the Stafford Act expressly requires the President, immediately upon his declaration of a major disaster or emergency, to appoint a FCO to conduct response and recovery operations in the affected area. The President has also formally delegated his response and recovery powers granted him in the Stafford Act to the Secretary of Homeland Security. The Stafford Act of 1974 gave this authority (to direct other departments) to the President; Executive Order 12148 delegated this authority in 1979 to the FEMA Director; and Executive Order 13286 subsequently transferred the authority in 2003 to the Secretary of Homeland Security. See Executive Order no. 12148, 44 Fed. Reg. 43239 (1979); Executive Order no. 13286, 68 Fed. Reg. 10619 (2003). This delegation of authority is consistent with the Secretary’s designation as PFO for incident management in HSPD-5. However, the Secretary has delegated his Stafford Act authority to the FEMA Director and according to the NRP can name a third and separate individual PFO for an Incident of National Significance.
56 National Response Plan, 16. See also note 65.
57 National Response Plan, 15, 25.
58 National Response Plan, 15.
59 See “Emergency Support Function Annexes” in National Response Plan, pgs. “ESF-i” et seq.
60 Reorganization Plan no. 3 of 1978, 43 Fed.. Reg. 41943 (June 19, 1978). The organization of FEMA was further defined in Executive Order no. 12,127, 44 Fed. Reg. 19367 (March 31,1979) and Executive Order no. 12148, 44 Fed. Reg. 43239 (July 20, 1979).
61 Homeland Security Act of 2002 “Homeland Security Act” , Public Law 296, 107th Congress, 2nd session (November 25, 2002) § 501, codified at 6 U.S.C. § 312 (2005).
62 National Response Plan, pg. “ESF 5-1.” See also Homeland Security Act, § 507, codified at 6 U.S.C. § 317 (2005).
63 U.S. Department of Homeland Security, Federal Emergency Management Agency, “Regional and Area Offices,” .
64 FEMA Disaster Assistance Employees (DAEs) are on-call personnel, not carried on the permanent payroll, activated to augment the full time employee pool when a surge capacity is required to respond to a disaster. Many have years of experience, while others may have little to no prior disaster or emergency response experience. These employees are only used to assist in the aftermath of specific disasters and emergencies. The reservists are trained to fulfill specific disaster response staffing needs, including key program, technical, and administrative functions.
65 The RRCC is a standing facility operated by FEMA that is activated to coordinate regional response efforts, establish Federal priorities, and implement local Federal support until a JFO is established in the field and/or the PFO, FCO, or Federal Resource Coordinator (FRC) can assume their NRP coordination responsibilities. The RRCC establishes communications with the affected State emergency management agency and the National Response Coordination Center (NRCC) coordinates deployment of the Emergency Response Team–Advance Element (ERT-A) to field locations, assesses damage information, develops situation reports, and issues initial mission assignments. National Response Plan, 27.
66 These regions have two of the largest regional staffs within FEMA: Region VI has 100 employees and over 300 reservists, and Region VI has 115 employees and over 550 reservists. See U.S. Department of Homeland Security, Federal Emergency Management Agency, “FEMA: Region VI – About Region VI,” (last updated March 3, 2005); U.S. Department of Homeland Security, Federal Emergency Management Agency, “FEMA: Region IV,” (last updated October 22, 2004). The NRCC and the RRCC in Region IV began monitoring Hurricane Katrina as early as Tuesday, August 23. On Thursday, August 25, the NRCC activated to Level 2—partial activation—at 7:00 am, and the Region IV RRCC activated to Level 2 at 12:30 pm. On Saturday, August 27, the NRCC went to Level 1—full activation—at 7:00 am, and Region IV and Region VI RRCCs went to Level 1 activation at 12:00 pm. U.S. Department of Homeland Security, Federal Emergency Management Agency, “Hurricane Katrina Response Timeline,” September 10, 2005. FEMA employs more than 2,600 full-time staff, about 1,000 of them in its ten regional offices, and nearly 4,000 disaster reservists. FEMA disaster reservists, officially known as Disaster Assistance Employees, serve as a surge force for rapidly increasing the pool of Federal response personnel during a major disaster. The program recruits and trains citizen volunteers to become full Federal employees when a major disaster exceeds the capacity of FEMA’s permanent staff. The agency has access to this collective pool of human resources, but does not have its own critical response assets, such as buses, trucks, and ambulances.
67 Stafford Act, 42 U.S.C. § 5170 (2005).
68 Stafford Act, 42 U.S.C. § 5191 (2005).
69 Stafford Act, 42 U.S.C. § 5170 (2005).
70 Louisiana Office of Homeland Security and Emergency Preparedness, Emergency Operations Plan (Baton Rouge, April 5, 2005), 3.
71 The Constitution requires that “ n o State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State . . . .” U.S. Constitution, art.1, sec.10.
72 EMAC was developed in the 1990s and officially ratified by Congress as an organization with thirteen member States in 1996. Emergency Management Assistance Compact, Public Law 104-321, 104th Congress, 2nd session, (October 19, 1996). As of October 2005, 49 States, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico had enacted EMAC legislation. National Emergency Management Association, “EMAC Overview,” December 2005, . EMAC is administered by the National Emergency Management Association (NEMA). During an emergency, NEMA’s staff works with EMAC member states to coordinate the EMAC system.
73 Louisiana Office of Homeland Security and Emergency Preparedness, Emergency Operations Plan (Baton Rouge, April 5, 2005), 3.
74 U.S. Department of Homeland Security, Catastrophic Incident Annex “Catastrophic Incident Annex” , in National Response Plan, pg. “CAT-1.”
75 National Response Plan, 63.
76 Catastrophic Incident Annex, pg. “CAT-1.”
77 National Response Plan, 44.
78 Given its draft status, the Catastrophic Incident Supplement has never been part of incident planning or exercises nor had it been widely disseminated, and as a result is not a part of current operational plans for incident management. Furthermore, our experience in Hurricane Katrina suggests it must now be reconsidered to make it more robust in ensuring that Federal assistance arrives as soo as possible.
79 The White House, “President Discusses Hurricane Relief in Address to the Nation,” news release, September 15, 2005, .