MOS 6801 Emergency Management Unit 5 Article Review

CRS Report for Congress Prepared for Members and Committees of Congress

Federal Emergency Management Policy Changes After Hurricane Katrina: A Summary of Statutory Provisions

Keith Bea, Coordinator Section Research Manager

March 6, 2007

Congressional Research Service

7-5700 www.crs.gov

RL33729

Federal Emergency Management Policy Changes After Hurricane Katrina

Congressional Research Service

Summary Reports issued by committees of the 109th Congress, the White House, federal offices of Inspector General, and the Government Accountability Office (GAO), among others, concluded that the losses caused by Hurricane Katrina were due, in part, to deficiencies such as questionable leadership decisions and capabilities, organizational failures, overwhelmed preparation and communication systems, and inadequate statutory authorities. As a result, the 109th Congress revised federal emergency management policies vested in the President; reorganized the Federal Emergency Management Agency (FEMA); and enhanced and clarified the mission, functions, and authorities of the agency, as well as those of its parent, the Department of Homeland Security (DHS).

Six statutes enacted by the 109th Congress are notable in that they contain changes that apply to future federal emergency management actions. These public laws include the following:

• Title VI of P.L. 109-295 (H.R. 5441), the Post-Katrina Emergency Management Reform Act of 2006, referred to in this report as the Post-Katrina Act;

• Sections of P.L. 109-347 (H.R. 4954), the Security and Accountability for Every Port Act of 2005, known as the SAFE Port Act;

• P.L. 109-308 (H.R. 3858), the Pets Evacuation and Transportation Standards Act of 2006;

• P.L. 109-63 (H.R. 3650), the Federal Judiciary Emergency Special Sessions Act of 2005;

• P.L. 109-67 (H.R. 3668), the Student Grant Hurricane and Disaster Relief Act; and

• Sections of P.L. 109-364 (H.R. 5122), the John Warner National Defense Authorization Act for Fiscal Year 2007.

Most of these statutes contain relatively few changes to federal authorities related to emergencies and disasters. The Post-Katrina Act, however, contains many changes that will have long-term consequences for FEMA and other federal entities. That statute reorganizes FEMA, expands its statutory authority, and imposes new conditions and requirements on the operations of the agency.

The Administration will implement these new authorities through the FY2008 appropriations legislation. The oversight plans of committees with jurisdiction indicate that Members of the 110th Congress will evaluate the steps taken by the leadership of FEMA to carry out the expanded legislative mandate. In addition, Members will continue to debate legislation pertaining to the recovery of Gulf Coast states. For example, H.R. 1144 would waive disaster assistance cost share requirements for the states affected by the hurricanes. This report will be updated as developments warrant.

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Contents Overview …………………………………………………………………………………………………………………… 1

Report Limitations …………………………………………………………………………………………………. 2 Report Organization ……………………………………………………………………………………………….. 2

Emergency Management Organizations and Functions ………………………………………………………. 3 Background ………………………………………………………………………………………………………….. 3 The New FEMA: Organization and Mission ……………………………………………………………….. 5

The New FEMA Components …………………………………………………………………………….. 5 The New FEMA Missions (Generally) …………………………………………………………………. 6 Administrative Responsibilities …………………………………………………………………………… 7 Disaster Response …………………………………………………………………………………………….. 8 Disaster Recovery …………………………………………………………………………………………….. 8 National Disaster Housing Strategy ……………………………………………………………………… 9 Continuity of Government and Operations ……………………………………………………………. 9 FEMA Sub-Units and Missions …………………………………………………………………………. 10

Other DHS Entities ………………………………………………………………………………………………. 11 Effective Date for Organizational Changes ……………………………………………………………….. 13

Emergency Management Leadership …………………………………………………………………………….. 13 Background ………………………………………………………………………………………………………… 13

Leadership Positions Under the Post-Katrina Act………………………………………………….. 14 Abolished Positions ………………………………………………………………………………………… 17 New Positions ………………………………………………………………………………………………… 17 Changes to Existing Positions …………………………………………………………………………… 18

Qualifications ……………………………………………………………………………………………………… 19 Personnel and Workforce ……………………………………………………………………………………………. 20

Background ………………………………………………………………………………………………………… 20 Strategic Human Capital Plan…………………………………………………………………………………. 21 Career Paths………………………………………………………………………………………………………… 22 Recruitment ………………………………………………………………………………………………………… 22 Retention ……………………………………………………………………………………………………………. 23 Vacancy Rate Reports …………………………………………………………………………………………… 23 Department Rotation Program………………………………………………………………………………… 24 Surge Capacity Force ……………………………………………………………………………………………. 25

National Preparedness ………………………………………………………………………………………………… 25 Background ………………………………………………………………………………………………………… 25 National Preparedness System………………………………………………………………………………… 27

National Planning Scenarios……………………………………………………………………………… 27 Target Capabilities and Preparedness Priorities …………………………………………………….. 28

Preparedness Grants……………………………………………………………………………………………… 28 Federal Preparedness…………………………………………………………………………………………….. 29 Evacuations ………………………………………………………………………………………………………… 29

Education and Training ………………………………………………………………………………………………. 30 Background ………………………………………………………………………………………………………… 30 Education and Training Institutions …………………………………………………………………………. 31 Homeland Security Training and Exercise Programs ………………………………………………….. 31 Homeland Security Education Program ……………………………………………………………………. 33

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Equipment and Training Standards ………………………………………………………………………….. 34 Stafford Act Assistance Amendments ……………………………………………………………………………. 34

Background ………………………………………………………………………………………………………… 34 Expedited Federal Assistance …………………………………………………………………………………. 35 Aid to Individuals ………………………………………………………………………………………………… 35 Housing Assistance ………………………………………………………………………………………………. 36 Public Assistance …………………………………………………………………………………………………. 37

Definitions …………………………………………………………………………………………………….. 37 Grants and Loans ……………………………………………………………………………………………. 38 Pilot Program…………………………………………………………………………………………………. 38

Mutual Aid………………………………………………………………………………………………………….. 38 Hazard Mitigation ………………………………………………………………………………………………… 39 Administrative Changes ………………………………………………………………………………………… 39 Pets and Service Animals ………………………………………………………………………………………. 40 110th Congress Stafford Act Legislation……………………………………………………………………. 40

H.R. 1144 ……………………………………………………………………………………………………… 40 Procurement……………………………………………………………………………………………………………… 41

Background ………………………………………………………………………………………………………… 41 Advance Contracting…………………………………………………………………………………………….. 41 Subcontracting Tiers …………………………………………………………………………………………….. 41 Using Local Firms, Organizations, and Individuals…………………………………………………….. 41 Noncompetitive Contracts ……………………………………………………………………………………… 42 Contractor Registry ………………………………………………………………………………………………. 42

Oversight and Accountability ………………………………………………………………………………………. 42 Background ………………………………………………………………………………………………………… 42 Oversight and Accountability of Federal Disaster Expenditures ……………………………………. 43 Fraud, Waste, and Abuse Controls …………………………………………………………………………… 43 Fraud Prevention Training Programs ……………………………………………………………………….. 43

Report and Guideline Development Schedule…………………………………………………………………. 44 Background ………………………………………………………………………………………………………… 44 Requirements ………………………………………………………………………………………………………. 44

FEMA Requirement ………………………………………………………………………………………… 44 DHS Secretary Requirements ……………………………………………………………………………. 44 FEMA Administrator Requirements …………………………………………………………………… 45 Federal Communications Commission Requirement……………………………………………… 47

Other Provisions ……………………………………………………………………………………………………….. 47 Background ………………………………………………………………………………………………………… 47 Effective Date ……………………………………………………………………………………………………… 47 Authorizations …………………………………………………………………………………………………….. 47 National Weather Service ………………………………………………………………………………………. 48 Education Grants………………………………………………………………………………………………….. 48 Federal Judiciary………………………………………………………………………………………………….. 48 National Guard ……………………………………………………………………………………………………. 48 Firearms Seizure ………………………………………………………………………………………………….. 49

Acronyms ………………………………………………………………………………………………………………… 49

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Tables Table 1. Statutory Changes to Emergency Management Leadership Positions Under P.L.

109-295 ………………………………………………………………………………………………………………… 15

Contacts Author Contact Information ………………………………………………………………………………………… 51

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Overview Hurricane Katrina struck Florida and the Gulf Coast states in the last days of August 2005, followed within weeks by Hurricanes Rita and Wilma. These disasters will long be remembered for disrupting families, changing and ending lives, and forcing Americans to rethink vulnerability and risk assumptions. In addition to these impacts, the hurricanes served as catalysts for significant changes in federal policy and the organization of responsible federal entities, notably within the Department of Homeland Security (DHS).

Most of those changes were included in Title VI of the DHS appropriations legislation for FY2007.1 Among other provisions, Title VI, officially titled the “Post-Katrina Emergency Management Reform Act of 2006” (hereafter referred to as the Post-Katrina Act), established new leadership positions and position requirements within the Federal Emergency Management Agency (FEMA), brought new missions into FEMA and restored some that had previously been removed, and enhanced the agency’s authority by directing the FEMA Administrator to undertake a broad range of activities before and after disasters occur. The Post-Katrina Act contains provisions that set out new law, amend the Homeland Security Act (HSA),2 and modify the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act).3

In addition to the Post-Katrina Act, Congress enacted five other statutes that have long-term implications for the administration of federal emergency policies.4 These include:

• Sections of P.L. 109-347 (H.R. 4954), the Security and Accountability for Every Port Act of 2005, known as the SAFE Port Act;

• P.L. 109-308 (H.R. 3858), the Pets Evacuation and Transportation Standards Act of 2006;

• P.L. 109-63 (H.R. 3650), the Federal Judiciary Emergency Special Sessions Act of 2005;

• P.L. 109-67 (H.R. 3668), the Student Grant Hurricane and Disaster Relief Act; and

• Sections of P.L. 109-364 (H.R. 5122), the John Warner National Defense Authorization Act for Fiscal Year 2007.

Through these enactments the 109th Congress acted on findings and conclusions reached by House and Senate investigators, White House staff, offices of federal Inspectors General (especially those published by the DHS office) and the Government Accountability Office (GAO), among others, who evaluated the consequences of and response to Hurricane Katrina. The investigators and their studies presented findings on major shortcomings, and most urged a reconsideration of existing policies and practices. This CRS report summarizes information on 1 P.L. 109-295, H.R. 5441. 2 P.L. 107-296, 116 Stat. 2140-2321, as amended, 6 U.S.C. 101 et seq. 3 P.L. 93-288, 88 Stat. 143-164, as amended, 42 U.S.C. 5121 et seq. 4 In addition to the listed statutes, Congress also enacted H.R. 4979, the Local Community Recovery Act of 2006 (P.L. 109-218). Congress included in the Post-Katrina Act the text of the changes made by P.L. 109-218 as an amendment to Section 307(a)(3) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

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the emergency management modifications adopted by Congress in response to the widespread calls for change.

Report Limitations This report summarizes provisions from legislation enacted by the 109th Congress with regard to federal emergency management authorities but does not cover all legislation enacted in response to Hurricanes Katrina, Rita, and Wilma. Information on legislation that provided funds, extended benefits, or authorized temporary waivers of statutory or administrative requirements solely for the victims of Hurricane Katrina or other specific disasters is available elsewhere.5 The focus here is on far-reaching and potentially permanent change in federal approaches to emergency management. Also, the emergency communications provisions in the Post-Katrina Act (Subtitle D, cited as the “21st Century Communications Act of 2006”) and the bioterrorism legislation enacted in the closing day of the 109th Congress are not summarized in this report.6

The content of this report is limited to congressional action. The Bush Administration has taken steps since Hurricane Katrina to revise practices and policies. For example, the framework that guides federal agency activities after a major disaster, the National Response Plan, is under review. Preparation for other hazards, notably a pandemic influenza outbreak, continues. Officials, and their leadership duties, have been reconsidered and replaced or reassigned. This report does not reference such administrative actions.

This CRS report is not analytical; its sole purpose is to summarize selected provisions of legislation enacted during the 109th and the 110th Congresses. In order to provide some context, the report does include background information on the relevant policy areas.

Report Organization This report comprises ten sections, as follows:

• the location and status of FEMA and the agency’s authorities;

• the capabilities, responsibilities, and requirements associated with leadership positions;

• modifications to the statutory provisions relevant to the workforce charged with implementing emergency management policies;

5 To address the needs of the disaster victims, Congress enacted legislation within weeks of the disasters to provide: supplemental appropriations (P.L. 109-61—H.R. 3645 and P.L. 109-62—H.R. 3673), higher levels of borrowing for the federal flood insurance program (P.L. 109-65—H.R. 3669), increased benefits to low-income families (P.L. 109- 68—H.R. 3672), expanded loans to stricken communities (P.L. 109-88—S. 1858), and other benefits intended to provide immediate assistance to victims and their communities. For information on such provisions see, CRS Report RS22239, Emergency Supplemental Appropriations for Hurricane Katrina Relief, by Keith Bea; CRS Report RS22246, Temporary Assistance for Needy Families (TANF): Its Role in Response to the Effects of Hurricane Katrina, by Gene Falk; CRS Report RS22344, The Gulf Opportunity Zone Act of 2005, by Erika K. Lunder; and CRS Report RL33174, FEMA’s Community Disaster Loan Program: Action in the 109th Congress, by Nonna A. Noto and Steven Maguire. 6 For information on emergency communications legislation see CRS Report RL33747, Emergency Communications Legislation: Implications for the 110th Congress, by Linda K. Moore. For information on the bioterrorism legislation see CRS Report RL33589, The Pandemic and All-Hazards Preparedness Act (P.L. 109-417): Provisions and Changes to Preexisting Law, by Sarah A. Lister and Frank Gottron.

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• changes in national preparedness system components and requirements (those not specifically included in FEMA’s mission);

• new emergency management education and training requirements;

• amendments to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act) that provide additional or modified assistance authority to the President;7

• changes in procedures governing federal contracting and procurement;

• oversight and review requirements that are expected to reduce fraud and waste practices in emergency response;

• requirements for the production of reports and guidelines; and

• miscellaneous provisions.

Emergency Management Organizations and Functions

Background8 Since 1979, when the agency was first established, FEMA has been charged with carrying out activities that enable the federal, state, and local governments to address a broad spectrum of emergency management functions. In carrying out its mission, FEMA has (1) funded and coordinated emergency preparedness activities, (2) provided and coordinated immediate federal response to save lives and property, (3) funded the reconstruction of damaged homes and infrastructure to help stricken families and communities recover, and (4) supported hazard mitigation activities to ensure that future disasters do not recur, or are less destructive in the future. These four elements of preparedness, response, recovery, and hazard mitigation constitute what has been generally referred to as the comprehensive emergency management (CEM) system.

As a small independent agency from 1979 through 2000, FEMA exercised responsibility for federal implementation of the CEM concept. For part of that time, from 1993 through 2000, agency officials also used those concepts to organize the agency.9Beginning in the spring of 2001 (before the September terrorist attacks), the Bush Administration reorganized FEMA reportedly to take “the agency in a new direction by refocusing its efforts on civil defense and counterterrorism.”10 After the terrorist attacks, through enactment of the Homeland Security Act

7 For more information on the Stafford Act see, CRS Report RL33053, Federal Stafford Act Disaster Assistance: Presidential Declarations, Eligible Activities, and Funding, by Keith Bea. 8 By Henry Hogue, Francis X. McCarthy, and Keith Bea of the Government and Finance Division. 9 For information about the history of the organization of federal emergency management functions, see CRS Report RL33369, Federal Emergency Management and Homeland Security Organization: Historical Developments and Legislative Options, by Henry B. Hogue and Keith Bea. For a summary of FEMA’s CEM mission and the agency’s underlying authorities as of February 2000, see CRS Report (Archived) RS20272, FEMA’s Mission: Policy Directives for the Federal Emergency Management Agency, by Keith Bea, available from author upon request. 10 Patrick S. Roberts, “FEMA and the Prospects for Reputation-Based Autonomy,” Studies in American Political Development, v. 20, Spring 2006: 75. See also discussion of organizational changes, pages 75-78.

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of 2002 (HSA), the 107th Congress and the Bush Administration continued the reorganization of the agency by divesting it of certain CEM responsibilities. Of particular relevance to this examination, the HSA transferred emergency preparedness functions related to terrorism from FEMA to the Border and Transportation Security (BTS) Directorate.11

The reassignment of certain CEM responsibilities, and concomitant organizational changes, continued in 2005, both before and after Hurricane Katrina. Pursuant to the HSA, which authorizes the Secretary to reorganize most parts of the department,12 Secretary Chertoff initiated what he called the Second Stage Review, or 2SR initiative, in the winter of 2005. After roughly six months, Secretary Chertoff recommended, and Congress approved, the division of responsibility for CEM functions.13

Since October 1, 2005, CEM functions have been divided between two components of the department—FEMA and the new Preparedness Directorate (PD). The FEMA Director, who also held the title of Under Secretary for Federal Emergency Management, has reported directly to the Secretary and has overseen three divisions (Response, Mitigation, and Recovery), ten regional offices, and numerous other components. Emergency preparedness functions have been vested in PD, which has been headed by an under secretary who has reported to the Secretary. Major components in this directorate have included the Assistant Secretary of Homeland Security for Infrastructure Protection; the Chief Medical Officer of DHS; the Office of Grants and Training; the U.S. Fire Administration; the Office of the National Capital Region Coordination; the Center for Faith-Based and Community Initiatives; and the Office of Cyber and Telecommunications,14 which includes the National Communications System and the National Cybersecurity Division. Of note, however, is the exclusion of one preparedness function from the PD portfolio. FEMA has continued to exercise a limited role in coordinating and guiding the efforts of federal agencies to prepare, maintain, and exercise contingency plans to ensure that essential government functions continue after catastrophes.15

In examining the lessons learned from Hurricane Katrina, the 109th Congress considered this dynamic history of functional and organizational changes. It appears that Congress concluded that while the HSA vested responsibilities of leading and supporting a national, risk-based CEM program in FEMA, the assignment of authorities and the organization of the agency indicated otherwise.16 Some contended that, as a result of these mission and organizational shifts, FEMA’s

11 FEMA’s responsibility for carrying out the CEM concept was established in HSA Sec. 507, 116 Stat. 2214. The terrorism-related preparedness responsibilities carried out by FEMA prior to enactment of the HSA were transferred to the Office for Domestic Preparedness within BTS in 6 U.S.C. 238(c)(8). 12 6 U.S.C. § 452. 13 For background see CRS Report RL33042, Department of Homeland Security Reorganization: The 2SR Initiative, by Harold C. Relyea and Henry B. Hogue. 14 The office and assistant secretary titles are listed in various ways on the DHS website, including Office of Cyber and Telecommunications http://www.dhs.gov/xabout/structure/editorial_0794.shtm, Assistant Secretary for Cyber Security and Telecommunications http://www.dhs.gov/xabout/structure/gc_1157655281546.shtm, and Assistant Secretary for Cyber and Telecommunications Security http://www.dhs.gov/xnews/speeches/speech_0255.shtm. 15 The primary authority for this responsibility rests with two presidential documents, Executive Order 12656, Assignment of Emergency Preparedness Responsibilities, issued in 1988, and Presidential Decision Directive 67, Enduring Constitutional Government and Continuity of Government Operations, issued in 1998. For background information see CRS Report RL31857, Executive Branch Continuity of Operations (COOP): An Overview, by R. Eric Petersen. 16 See 6 U.S.C. 238(c)(8), 116 Stat. 2191. An examination of the difference between the broad statutory mandate given to FEMA in the HSA and authorities that vested emergency management functions in other federal entities is presented (continued…)

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capabilities deteriorated as functions, resources, and responsibilities moved to other DHS units. Others argued that an emphasis on terrorist-caused incidents within DHS dominated planning and allocation decisions and contributed to FEMA’s diminished capabilities for all hazards. These findings led to congressional enactment of significant revisions to FEMA’s structure and mission in the Post-Katrina Act, as summarized below.

The New FEMA: Organization and Mission The Post-Katrina Act reorganizes DHS with a reconfigured FEMA (effective March 31, 2007) with consolidated emergency management functions, elevated status within the department,17 and enhanced organizational autonomy. The organization and many of the authorities and responsibilities assigned to FEMA under the act are summarized in this section of the report, except for authorities specific to preparedness activities. Many of those responsibilities are vested in the President (and are to be carried out by the FEMA Administrator), so they are summarized in the “National Preparedness” section of this report.

The New FEMA Components

Under the Post-Katrina Act, the new FEMA will comprise the Preparedness Directorate and all of the functions of the existing FEMA. This includes, for each of the entities, personnel, assets, components, authorities, grant programs, liabilities, and the functions of their respective Under Secretaries. Several entities from the Preparedness Directorate, noted below in the “Other DHS Entities” sub-section, are excepted from transfer to the newly configured FEMA.18 In addition, the act provides for 10 regional offices with specified responsibilities and features.19 It also provides, in statute, for the National Integration Center, specifying the center’s responsibilities and role with regard to incident management.20 In addition to these existing elements, the new FEMA will include two positions and one entity, both newly established by the Post-Katrina Act—a Disability Coordinator,21 a Small State and Rural Advocate,22 and a National Advisory

(…continued)

in CRS Report RL33064, Organization and Mission of the Emergency Preparedness and Response Directorate: Issues and Options for the 109th Congress, by Keith Bea. 17 The new law elevates FEMA within DHS by raising the status of the FEMA Administrator to the Deputy Secretary level, increasing the scope of his or her responsibilities, mandating that he or she report directly to the Secretary, and giving him or her a statutory advisory relationship to the President, the Homeland Security Council, and the Secretary, particularly during disasters. (For more on the new Administrator position, see “New Positions” in the “Emergency Management Leadership” section of this report.) 18 P.L. 109-295, § 611(13), new section 505 of the Homeland Security Act of 2002 (HSA), 120 Stat. 1400. The transfers are of these entities as they existed on June 1, 2006. Based on information obtained from the DHS website and conversations with DHS officials (both on Nov. 8, 2006), it appears that the agencies to be transferred from the Preparedness Directorate to FEMA will include the U.S. Fire Administration, the Office of Grants and Training, the Office of National Capital Region Coordination, and the Center for Faith-Based and Community Initiatives http://www.dhs.gov/xabout/structure/editorial_0794.shtm. DHS officials indicate that the department is developing a reorganization plan that will clarify which portions of the Preparedness Directorate will be transferred as well as the status of those entities remaining outside FEMA. 19 P.L. 109-295, § 611(13), new HSA Sec. 507, 120 Stat. 1401. 20 P.L. 109-295, § 611(13), new HSA Sec. 509, 120 Stat. 1405. 21 P.L. 109-295, § 611(13), new HSA Sec. 513(a), 120 Stat. 1408. 22 P.L. 109-295, §689g, 120 Stat. 1453.

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Council.23 At the regional level, the Post-Katrina Act provides for the creation of Regional Advisory Councils, Regional Office Strike Teams,24 and regional Emergency Communications Coordination Working Groups.25 The act also permits the Administrator to establish Hurricane Katrina and Hurricane Rita recovery offices in Mississippi, Louisiana, Alabama, and Texas.26

In addition to the aggregation of these offices and entities into FEMA, the Post-Katrina Act gives FEMA more organizational autonomy than it has had since becoming part of DHS. Like the U.S. Coast Guard and the U.S. Secret Service, FEMA is now classified as a distinct entity within DHS.27 In addition, the agency is no longer subject to the Secretary’s broad reorganization authority under HSA.28 The act authorizes the FEMA Administrator, as of March 31, 2007, to provide emergency-management-related recommendations directly to Congress after informing the Secretary.29 (Additional provisions strengthening FEMA’s organizational autonomy, related to funding and functions, are noted in the next section.)

The New FEMA Missions (Generally)

As of March 31, 2007, the Post-Katrina Act will restore to FEMA the responsibility to lead and support efforts to reduce the loss of life and property and protect the nation from all hazards through a risk-based system that focuses on expanded CEM components. The statute also adds a fifth component—protection—to the four CEM components, but does not define the term.30

The act transfers to the new FEMA all functions previously administered by FEMA, specifically emergency alert systems, continuity of operations, and continuity of government activities, as well as those functions administered by the Preparedness Directorate, as they were administered, effective June 1, 2006. The legislation exempts from the transfer the functions of four Preparedness Directorate units—Office of Infrastructure Protection, National Communications System, National Cybersecurity Division, and the Office of the Chief Medical Officer.31 In addition, the Post-Katrina Act includes activities and responsibilities for FEMA beyond those first included in the HSA in 2002.32

The act also explicitly prohibits substantial or significant reductions, by the Secretary, of the authorities, responsibilities, or functions of FEMA, or FEMA’s capability to perform them.33 Furthermore, the Post-Katrina Act prohibits most transfers of FEMA assets, functions, or

23 P.L. 109-295, § 611(13), new HSA Sec. 508(a), 120 Stat. 1403. 24 P.L. 109-295, § 611(13), new HSA Sec. 507(e)-(f), 120 Stat. 1402. 25 P.L. 109-295, § 671(b), new HSA Sec. 1805(a), 120 Stat. 1439. 26 P.L. 109-295, § 638(a), 120 Stat. 1422. 27 P.L. 109-295, § 611(13), new HSA Sec. 506(a), 120 Stat. 1400. Two organizations—the U.S. Coast Guard and the U.S. Secret Service—were transferred into DHS as “distinct entities” (6 U.S.C. § 381; 6 U.S.C. § 468). The Transportation Security Administration was also maintained as a distinct entity for two years following the enactment of HSA (6 U.S.C. § 234). 28 P.L. 109-295, § 611(13), new HSA Sec. 506(b), 120 Stat. 1400. 29 P.L. 109-295, § 611(11), new HSA Sec. 503(c)(4)(B)(iii), 120 Stat. 1398. 30 P.L. 109-295, §611(11), new HSA Sec. 503(b), 120 Stat. 1396. 31 P.L. 109-295, §611(13), new HSA Sec. 505, 120 Stat. 1400. 32 P.L. 109-295, §611(12), revised HSA Sec. 504, 120 Stat. 1398. 33 P.L. 109-295, § 611(13), new HSA Sec. 506(c)(1), 120 Stat. 1400.

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missions to other parts of DHS.34 With regard to reprogramming or transfer of funds, the act requires that the Secretary comply with any applicable appropriations act provisions.35

Among the specific activities given to FEMA in the Post-Katrina Act are the following:

• leading the nation’s CEM efforts (including protection) for all hazards, including catastrophic incidents;36

• partnering with non-federal entities to build a national emergency management system;

• developing federal response capabilities;

• integrating FEMA’s CEM responsibilities;

• building robust regional offices to address regional priorities;

• using DHS resources under the Secretary’s leadership;

• building non-federal emergency management capabilities, including those involving communications; and

• developing and coordinating the implementation of a risk-based all hazards preparedness strategy that addresses the unique needs of certain incidents.37

The Post-Katrina Act added 13 responsibilities to those originally set out for FEMA in the HSA, including ensuring first responder effectiveness, supervising grants, administering and implementing the National Response Plan, preparing and implementing federal continuity of government and operations plans (see “Continuity of Government and Operations” below), and maintaining and operating the response coordination center, among others.38 While implementation of these activities and responsibilities is to build “common capabilities” that will enable the agency to address all hazards through a risk-based management system, the statute also calls for the development of “unique capabilities” that would be needed for events that pose the greatest risk to the nation.39

Administrative Responsibilities

In addition to the general responsibilities noted above, the Post-Katrina Act places new authorities intended to address administrative problems identified in the response to Hurricane Katrina within FEMA. The FEMA Administrator is charged with developing a logistics system that will enable officials to track the location of goods and services throughout the transfer process from FEMA to the affected state.40 The Administrator must also establish a pre-positioned equipment program in at least eleven locations to support state, local, and tribal government disaster

34 P.L. 109-295, § 611(13), new HSA Sec. 506(c)(2), 120 Stat. 1400. 35 P.L. 109-295, § 611(13), new HSA Sec. 506(d), 120 Stat. 1400. 36 The Post-Katrina Act defines the term “catastrophic incident” in P.L. 109-295, § 602(4), 120 Stat. 1394. 37 P.L. 109-295, §611(11), new HSA Sec. 503(b)(2), 120 Stat. 1396. 38 P.L. 109-295, §611(12), HSA revised Sec. 504 (as redesignated), 120 Stat. 1398. 39 P.L. 109-295, §611(11), HSA new Sec. 503(b)(2)(H), 120 Stat. 1397. 40 P.L. 109-295, §636, 120 Stat. 1422.

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assistance operations.41 To support agency activities, the Administrator must update and improve FEMA’s information technology systems to achieve objectives specified in the statute.42 Also, the Administrator is authorized to disclose information to law enforcement agencies on individuals sheltered or evacuated in order to identify illegal conduct or address public safety concerns, including those involving sex offender notification requirements. The disclosure of this information must be consistent with Privacy Act requirements.43

Disaster Response

The FEMA Administrator has been given new authority that will specifically facilitate disaster response operations. He or she is charged with reaching a formal understanding with non-federal officials on standards for the credentialing of personnel and “typing of resources” needed for the response to a disaster.44 In addition, the Post-Katrina Act seeks to bolster several of the response teams and related resources through the legislation. Emergency Response Teams are recognized and called on to meet target capability levels, be properly staffed, and in a state of readiness.45 The Post-Katrina Act also formally authorizes the Urban Search and Rescue teams and sets an authorized level of funding for the system. 46 The act also creates the Metropolitan Medical Response Grant Program and establishes an authorized funding level for the program.

Disaster Recovery

A significant addition to the Stafford Act mission in the Post-Katrina Act is the focus on the reunification of families following an event in the form of the National Emergency Family Registry and Locator System and the Child Locator Center.47 The Post-Katrina Act calls for the establishment of a family registry and locator system within 180 days after enactment. This would be a voluntary system that would be established by FEMA, in collaboration with the Department of Justice, the National Center for Missing and Exploited Children, the Department of Health and Human Services (HHS), and the American Red Cross. It would be accessible by Internet and a toll-free number and would assist family members and law enforcement in reuniting families. A memorandum of understanding of the working group is to be agreed upon within 90 days of enactment.

The Post-Katrina Act also calls on the Administrator of FEMA to assemble a group of federal and non-governmental players to develop a recovery strategy that will summarize existing programs and assess their utility in the post-disaster environment and discuss key issues of funding and authorities in determining the best use of such programs in meeting unique disaster requirements. The strategy should also address rebuilding, particularly those considerations that will lead to

41 P.L. 109-295, §637, 120 Stat. 1422. 42 P.L. 109-295, §640, 120 Stat. 1423. 43 P.L. 109-295, §640a , 120 Stat. 1424. 44 P.L. 109-295, §611(11), 120 Stat. 1406, HSA new Sec. 510. 45 P.L. 109-295, §633, 120 Stat. 1421, amends Stafford Act Sec. 303. 46 P.L. 109-295, §634, 120 Stat. 1421. 47 P.L. 109-295, §689b and §689c, 120 Stat. 1449, 1451.

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more “disaster-resistant” construction and reconstruction.48 For requirements see the “Report and Guideline Development Schedule” section of this report.

To enhance the steady recovery process for the huge event, the Post-Katrina Act also authorizes the establishment of recovery offices in Mississippi, Louisiana, Alabama, and Texas (a Florida office is already in place since the hurricanes of 2004). These offices are intended to encourage the delivery of necessary assistance in a timely and effective manner. The act calls for performance measures including public assistance worksheet completion rates and public assistance reimbursement times. The timing of when these offices will close is left to the discretion of the Director.49

National Disaster Housing Strategy

The Post-Katrina Act also calls for a “Housing Strategy” separate from but related to the “Recovery Strategy” previously noted. The group membership developing this strategy will be similar to that of the housing strategy but will also include advocates for the disabled and their housing needs. This strategy should include a review of housing resources, including those departments and agencies with existing housing stock and also a compilation of housing resources available for disaster victims from governments and non-governmental entities. The strategy should also address the low income and special needs populations as well as housing group sites and the repair of rental housing in the affected area to increase the available stock.50 For requirements see the “Report and Guideline Development Schedule” section of this report.

Continuity of Government and Operations

P.L. 109-295 mandates that the COOP and COG authorities of FEMA “as constituted on June 1, 2006,” be transferred to the new agency.51 The law also requires that the FEMA Administrator prepare and implement “the plans and programs of the federal government for COOP, COG, and “continuity of plans” responsibilities.52

In addition to these legislative mandates that specifically refer to COOP and COG, the legislation also includes provisions that might arguably be related to or affect implementation of the COOP and COG requirements. For example, one of the four specific missions assigned to the new agency includes the requirement to “integrate the Agency’s emergency preparedness … responsibilities to confront effectively the challenges of a natural disaster, act of terrorism, or other man-made disaster.”53 Also, the Disability Coordinator to be appointed by the FEMA Administrator will be required to interact with specified entities, including “other agencies of the federal government” on “the needs of individuals with disabilities in emergency planning requirements….”54 While not specifically linked to federal COOP and COG activities, these and

48 P.L. 109-295, §682, 120 Stat. 1445. 49 P.L. 109-295, §638, 120 Stat. 1422. 50 P.L. 109-295, §683, 120 Stat. 1446. 51 P.L. 109-295, 120 Stat. 1400, revised Sec. 505(a)(1) of the Homeland Security Act. 52 P.L. 109-295, 120 Stat. 1399, 6 U.S.C. 314(a)(15), revised Sec. 504 of the Homeland Security Act. The term “continuity of plans” is not defined or elaborated upon. 53 P.L. 109-295, 120 Stat. 1397, new Sec. 503(b)(2)(D) of the Homeland Security Act. 54 P.L. 109-295, 120 Stat. 1408, new Sec. 513(b)(2) of the Homeland Security Act.

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other provisions in the legislation might require a reconsideration or evaluation of current procedures.55

FEMA Sub-Units and Missions

The National Integration Center, established within FEMA, will be responsible for a range of duties concerning emergency preparedness capabilities. NIC is charged with the management and maintenance of both the National Incident Management System (NIMS) and the National Response Plan (NRP). In addition, NIC is responsible for the coordination of volunteer activity with the Corporation for National and Community Service and coordination with state, local and tribal governments concerning the deployment of first responders to disaster sites. The NIC is also charged with the revising and releasing of the Catastrophic Incident Annex and the Catastrophic Incident Supplement to the NRP.56

The Post-Katrina Act also requires that ten regional offices operate within FEMA, each to be headed by a Regional Administrator. Each Administrator must do the following:

• work with non-federal partners in the region to ensure that the five CEM components are coordinated and integrated,

• develop regional capabilities for a “national catastrophic response system,”

• coordinate the establishment of emergency communications capabilities,

• staff and oversee regional strike teams that comprise the initial response efforts for a disaster and must meet specified criteria and perform specified duties,

• designate one person responsible for developing regional plans that support the National Response Plan,

• foster the development of mutual aid agreements in the region,

• identify gaps in the region concerning the response to individuals with special needs, and

• maintain and operate a Regional Response Coordination Center.

Each Regional Administrator must establish a Regional Advisory Council to provide advice on emergency management issues, identify challenges to any CEM component in the region, and identify gaps or deficiencies. Also, the FEMA Administrator must report to Congress on additional statutory authorities needed to enhance the capabilities of regional strike teams. The statute also establishes area offices for the Pacific and Caribbean jurisdictions as well as for Alaska in the appropriate regional offices.57

55 COOP and COG activities are, at times, considered part of the larger policy area referred to as “federal preparedness.” Section 653 of P.L. 109-295, 120 Stat. 1430, titled “Federal Preparedness,” requires that federal agencies undertake specified actions to ensure that federal agencies are fully able to perform their specified roles in the National Response Plan and other components of the national preparedness system. See “National Preparedness System” elsewhere in this report for details. 56 P.L. 109-295, §611(13), Sec. 509(b), 120 Stat. 1405. 57 P.L. 109-295, §611(13), new HSA Sec. 507, 120 Stat. 1401.

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The FEMA Administrator also is responsible for the selection of a Disability Coordinator. This selection is to be made following consultation with appropriate groups including disability interest groups as well as state, local and tribal groups. The Coordinator is charged with assessing the coordination of emergency management policies and practices with the needs of individuals with disabilities, including training, accessibility of entry (both physical and virtual), transportation, media outreach, and general coordination and dissemination of model best practices, including the area of evacuation planning.58 A related responsibility given to the Director concerns the establishment of a Remedial Action Management Program (RAMP) to be coordinated with both the National Council on Disability and the National Advisory Council. RAMP is to be used to analyze programs and generate after-action reports that are to be distributed to participants in both exercises and real-world events. The RAMP is also responsible for tracking remedial actions as well as long-term trend analysis.59 In addition, the Coordinator is to work with the FEMA Administrator on the development of guidelines to accommodate individuals with disabilities in emergency response facilities and communications capabilities.60

Other DHS Entities The Post-Katrina Act makes other changes to the DHS organization by rearranging certain existing offices, establishing others, and modifying responsibilities.

The Preparedness Directorate, with the exception of certain offices, will be transferred to the reconfigured FEMA.61 The offices now in the Preparedness Directorate that will not be transferred to FEMA include the Office of Infrastructure Protection, the National Communications System, the National Cybersecurity Division, and the Office of the Chief Medical Officer (CMO).62 The Post-Katrina Act does not indicate whether these four units will constitute a new organizational unit, will become stand-alone offices reporting to the Secretary, or will be subsumed by another organizational entity.63

The office headed by the Assistant Secretary for Cyber Security and Telecommunications was administratively created by Secretary Chertoff as part of the 2005 DHS reorganization.64 Entities within this office have included the National Communications System and the National Cybersecurity Division. The Post-Katrina Act establishes a similarly titled office, Assistant Secretary for Cybersecurity and Communications, in statute. The statute does not specify whether

58 P.L. 109-295, §611(13), new HSA Sec. 513(b), 120 Stat. 1408. 59 P.L. 109-295, §650, 120 Stat. 1428. 60 P.L. 109-295, §689(a), 120 Stat. 1448. 61 As previously discussed, this understanding is based on the new HSA Sec. 505(a), which provides that “there are transferred to [the newly reconstituted FEMA] the following: … The Directorate of Preparedness, as constituted on June 1, 2006, including all of its functions, personnel, assets, components, authorities, grant programs, and liabilities , and including the functions of the Under Secretary for Preparedness relating thereto.” It could be argued that Sec. 505(b), which identifies exceptions to this transfer provision, keeps the directorate itself outside of FEMA because it begins with “The following within the Preparedness Directorate shall not be transferred” (emphasis added). 62 P.L. 109-295, § 611(13), new HSA Sec. 505(b), 120 Stat. 1400. 63 The Secretary retains authority, under HSA, to reorganize these offices. [6 U.S.C. 452] DHS officials have indicated that the department is developing a reorganization plan that will clarify the status of those entities remaining outside FEMA (telephone conversation with DHS official, Nov. 8, 2006). 64 U.S. Department of Homeland Security, “Secretary Michael Chertoff U.S. Department of Homeland Security Second Stage Review Remarks,” available at http://www.dhs.gov/xnews/speeches/speech_0255.shtm, accessed Oct. 18, 2006.

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