Topic 2: Overview of FEMA’s Statutory Authorities  


Announcer:	Welcome to FEMA Law Talk – a Podcast series produced by the FEMA Office of Chief Counsel.  The purpose of this podcast series is to increase FEMA’s ability to learn and innovate as an organization through promoting a better understanding of the legal authorities that support FEMA’s efforts to reduce loss of life and property and protect the nation from all hazards.  Now here is your host, Rachael Bralliar.  

Host: Hi and welcome to FEMA Law Talk.  My name is Rachael Bralliar, and I am Counselor to the Chief Counsel of FEMA, Brad Kieserman.  Last time, Brad discussed the different sources of law that apply to the delivery of FEMA’s mission, including the Constitution, statutes, Federal regulations, executive orders, and presidential policy directives.  This week Brad and I are going to provide a general overview of the key Federal statutes that guide FEMA in the accomplishment of its mission.  By the end of this podcast, you should be able to describe some of FEMA’s primary statutory authorities and their purpose.  Brad, I know that FEMA has many statutory authorities, so where do we begin?

Brad:  Hi, Rachael.  Let’s begin by understanding the difference between authorization statutes and appropriation statutes—any agency, including FEMA, needs both types of statutes to operate and different committees in Congress are responsible for each.  An authorizing measure can establish, continue, or modify an agency or program for a fixed or indefinite period of time.  It also may set forth the duties and functions of an agency or program, its organizational structure, and the responsibilities of agency or program officials.  Authorizing legislation does not give a government agency funding to cut a check or enter into a contract.  Rather, its purpose is to set parameters for government agencies and programs.  An appropriations act, on the other hand, confers budget authority on Federal agencies to incur financial obligations for specified purposes and authorizes payments to be made out of the Treasury.  

Host:  I get it, Brad.  Authorizing legislation sets duties and policies for FEMA and its programs.  Appropriations legislation gives FEMA the money it needs before it can cut a check, sign a contract, or award a grant.

Brad:  Exactly, Rachael.  Interestingly enough, FEMA didn’t start its life with an authorizing statute. 

Host:  I’ve read about this in FEMA Publication No. 1!  FEMA started life with an Executive Order in 1979!

Brad:  Right again, Rachael.  In 1977, the National Governor’s Association conducted a study and recommended organizational changes at the Federal level that would promote a more comprehensive and coordinated approach to emergency management.  So, in 1978, President Jimmy Carter proposed the merger of five agencies from the Departments of Defense, Commerce, and Housing and Urban Development, as well as GSA, into one new independent agency, the Federal Emergency Management Agency (FEMA).  So, on March 31, 1979, President Carter issued an executive order putting something called “Reorganization Plan No. 3 of 1978” into effect and FEMA, was born.   But Congress didn’t really give FEMA an organic statute until 2006.

Host: What’s an “organic statute?”

Brad: An organic statute is a type of authorizing statute that establishes an administrative agency and defines its authorities and responsibilities.  So, even though it’s one of FEMA’s most recent authorities, we really ought to start our survey of FEMA’s authorizing statutes with our organic act.  So, where do you think we’d find that, Rachael?

Host:  In the United States Code, right, Brad?

Brad: Right again, Rachael—you’re like three for three!  And, what do you think our organic act is called?

Host: The Stafford Act?

Brad:  No!  Most people say that, though, because lots of people, especially disaster survivors and emergency management professionals, associate FEMA with the Robert T. Stafford Disaster Relief and Emergency Assistance Act or Stafford Act.   But, you won’t find FEMA’s organic statute in the Stafford Act—you’ll find it in the Homeland Security Act of 2002.   

Host:  But Brad, Congress enacted the Homeland Security Act after the attacks of September 11 in 2001 in order to create the Department of Homeland Security.  FEMA’s been around since 1979, and I thought the Stafford Act was around in one form or another since 1974.

Brad:  You’re absolutely right, Rachael.  Both FEMA and the Stafford Act predate the Homeland Security Act.  But, before the Homeland Security Act of 2002, FEMA really had no mandate originated by Congress that clearly defined and organized the full spectrum of the agency’s mission and authorities.

Host:  So, what did the Homeland Security Act do with respect to FEMA?

Brad:  Well, first, the act established the Secretary of Homeland Security as the head of DHS with direction, authority, and control over it, and the Act vested all of the functions of the officers, employees, and organizational units of DHS, including FEMA, in the Secretary.  The Homeland Security Act also assigned eight missions to DHS, and one of those was “acting as a focal point regarding natural and manmade crises and emergency planning.”   So, in the early years of DHS, the Department reorganized FEMA’s functions, personnel, resources, and authorities several times.  Then, Hurricane Katrina struck Florida and the Gulf Coast states in the last days of August 2005, followed within weeks by Hurricanes Rita and Wilma.  The controversy that surrounded the Federal government’s response to the hurricanes really served as a catalyst for FEMA’s first true organic statute:  the “Post-Katrina Emergency Management Reform Act of 2006,” also called the Post-Katrina Act or sometimes just by its acronym, PKEMRA.   So, PKEMRA set out new law, amended the Homeland Security Act, and also modified the Stafford Act.

Host:  So, it’s in the Homeland Security Act, as amended by PKEMRA, that we’ll find authority for FEMA’s missions and programs?

Brad:  That’s right, Rachael.  Broadly, though, PKEMRA did three things for FEMA:  first, it brought new missions into FEMA and restored some missions that had previously been removed; second, it established new leadership positions and requirements for those positions; and third, it enhanced the agency’s authority by directing the FEMA Administrator to undertake a broad range of activities both before and after disasters occur.  

Host:  Ok, Brad, so what are the top three things you want people to remember about PKEMRA?

Brad:  That’s a great question.  The first thing is PKEMRA gives the Administrator and FEMA a clear statutory mission, and that’s to “lead the Nation's efforts to prepare for, protect against, respond to, recover from, and mitigate against the risk of natural disasters, acts of terrorism, and other man-made disasters, including catastrophic incidents”—so it is that all-hazards approach.   Second, PKEMRA provides the agency with significant ability to influence emergency management policy in the United States, in part by giving the Administrator a rank commensurate with that of a Deputy Secretary, and making the Administrator the principal advisor to the President, the Homeland Security Council, and the Secretary of Homeland Security on all emergency management-related issues in this Nation.  And, finally, third, PKEMRA gives the agency a clear operational mission by requiring the Administrator and FEMA to “provid[e] the Federal Government's response to terrorist attacks and major disasters.”   And one final and very important point, PKEMRA also established in statute the FEMA regions and the authorities of the FEMA Regional Administrators.

Host:  Well, Brad, sounds like we’re going to spend an entire future Podcast episode focused on PKEMRA, so can you tell us about the other authorizing statutes containing FEMA missions and powers?

Brad:  Sure, Rachael.  Let’s start with the one most people have heard about:  the Robert T. Stafford Disaster Relief and Emergency Assistance Act or Stafford Act.  The Stafford Act, which Congress enacted in 1988 (and you can find that in title 42 of the United States Code), authorizes the programs and processes by which the Federal Government provides disaster and emergency assistance to State, Tribal, and local governments, eligible private non-profit organizations, and individuals affected by a declared major disaster or emergency.  The Stafford Act covers many hazards occurring in the United States and its territories, including natural disasters, fires, floods, and explosions.  It also encourages hazard mitigation measures to reduce losses from disasters by establishing programs for State, Tribal, and local hazard mitigation planning, as well as grant programs that provide funding mechanisms to reduce losses in pre- and post-disaster environments.  One thing everybody should know is the Stafford Act amended and renamed a prior statute called the Disaster Relief Act of 1950,  which really began to move the United States for the first time away from the ad hoc approach to disaster relief and towards a more comprehensive federal emergency management system, which was ultimately established and refined by PKEMRA.

Host:  Brad, I know the Stafford Act is important to FEMA, but are there other FEMA statutes we should know about?

Brad:  Absolutely, Rachael.  Emergency Management, in general, and FEMA, in particular, are about more than just the Stafford Act.  So, I’ll give you the rest of my FEMA “Top Five Authorizing Statutes” list.  If we count the Stafford Act as one, then number two on my list is the National Flood Insurance Act of 1968.   That created the National Flood Insurance Program to provide a means for property owners to protect themselves financially.  There’s a long history of property damage and loss of life due to flooding in the United States.  In fact, the most common type of disaster in the United States is flooding.  However, most standard homeowner insurance policies do not cover losses from floods.  After losses sustained in Florida and Louisiana following the destruction caused by Hurricane Betsy in 1965, Congress passed the National Flood Insurance Act (or NFIA), which authorized the government to offer flood insurance plans—that means we sell insurance.  In addition to authorizing the Federal government to provide flood insurance for structures and contents in communities that adopt and enforce an ordinance outlining minimum floodplain management standards, the act also authorized the Federal government to identify areas of high and low flood hazard and establish flood insurance rates for structures inside each flood hazard area.  This is a huge part of FEMA’s mission—both in terms of people and dollars—and, like the Stafford Act, you will find the NFIA, as amended, in title 42 of the United States Code.

Host:  Thank you, Brad.  What’s number three on your top-five list?

Brad:  Number three, Rachael, is the Federal Fire Prevention and Control Act of 1974.  

Host:  That’s the law that created the U.S. Fire Administration and the National Fire Academy.  Right, Brad?

Brad:  That’s right, Rachael.  Congress created the U.S. Fire Administration in 1974 after the Nation lost more than 12,000 citizens and 250 firefighters to fire in a single year.  The Federal Fire Prevention and Control Act, which is codified at title 15 of the United States Code, authorizes data collection, public education, research, and training efforts that have helped to reduce fire deaths by at least half since 1974.

Host:  So, what’s number four on your top five list?

Brad:  Number four is probably surprising to most people.  It is the National Dam Safety Program Act,  which was signed into law in October of 1996, and it was amended by the Dam Safety and Security Act of 2002 —all of which you can find in title 33 of the United States Code.  

Host:  I didn’t know FEMA had a role in dam safety.  What exactly does FEMA have to do with dams?

Brad:  Rachael, dams are a critical part of our national infrastructure, and FEMA administers the programs created by the National Dam Safety Program Act, which Congress established to improve safety and security around the nations’ 78,000 dams.  So, there are really four things that FEMA does under the act:  1) we provide assistance grants to state dam safety agencies to assist them in improving their regulatory programs; 2) we fund research to enhance technical expertise as dams are built and rehabilitated; 3) we establish training programs for dam safety inspectors, and; 4) we created a National Inventory of Dams to help manage this massive infrastructure program.  

Host:  Thank you.  So what’s number five on your top five list?

Brad:  Well, number five is the National Earthquake Hazard Reduction Act of 1977,  which is codified in title 42 of the United States Code (along with the Stafford Act and National Flood Insurance Act). 

Host:  I am not surprised the National Earthquake Hazard Reduction Act is in your top five list.  Close to 75 million people in 39 States face some risk from earthquakes, and earthquakes cost the United States, on average, over $5 billion per year.  So, the United States faces the possibility of large economic losses from earthquake-damaged buildings and infrastructure.  

Brad:  That’s exactly right, Rachael.  That’s exactly why the National Earthquake Hazard Reduction Act established the interagency body called the National Earthquake Hazard Reduction Program, which is led by the National Institute of Standards and Technology, in cooperation with FEMA, the National Science Foundation, and the U.S. Geological Survey.  

Host:  What does the National Earthquake Hazard Reduction Program do, Brad?

Brad:  The four participating agencies variously assess U.S. earthquake hazards, deliver notifications of seismic events, develop measures to reduce earthquake hazards, and conduct research to help reduce overall U.S. vulnerability to earthquakes.  Additionally, under the National Earthquake Hazard Reduction Act, FEMA assists other agencies and private-sector groups to prepare and disseminate building codes and practices for structures. 

Host:  Wow, Brad, that sounds like FEMA has statutory authorities for almost every different type of hazard.

Brad: We pretty much do, Rachael —the goal of emergency management today is preparedness for all hazards—and that fundamentally is what PKEMRA set into law.  It is the notion of an all-hazards Federal emergency management construct.  So, we also have specific statutory authority related to Chemical Stockpile Emergency Preparedness, Radiological Emergency Preparedness, and let’s not forget FEMA’s role in the Defense Production Act (DPA),  which allows the President to expedite and expand the supply of critical resources from the U.S. industrial base to support national defense and homeland security, which includes domestic emergency preparedness.

Host:  That’s right, Brad, and let’s not forget FEMA’s 19 Preparedness Grants and Assistance programs, which are all authorized by particular Federal statutes and represent more than $1.8 billion dollars in grant funds each year designed to help States, urban areas, Tribal governments and non-profit organizations enhance their protection, prevention, response and recovery capabilities for risks associated with potential terrorist attacks and other hazards.

Brad: I’m glad you mentioned the grant programs, Rachael, because that’s a great opportunity to remind our listeners about the difference between authorization statutes and appropriation statutes that we mentioned when we began this podcast.  Most of the statutes we discussed today were authorization statutes:  they establish programs and policies.  But, nearly all of them need an appropriation statute, too, in order to have funding to operate.  So, for example, Congress has established a Homeland Security Grant Program, which FEMA administers based on authority granted the Administrator by PKEMRA.  But, without an appropriation (that is money), there wouldn’t be any grant funds to distribute or funding to operate the program—so, usually, you need both an authorization AND an appropriation to operate.

Host:  Thank you for taking the time to speak with us today, Brad.  That wraps up the second FEMA Law Talk Podcast Series.  Today we provided a general overview of FEMA’s organic act, the Homeland Security Act of 2002 as amended by Post-Katrina Emergency Management Reform Act of 2006, along with Brad’s “Top Five Authorizing Statutes” list:  The Stafford Act, The National Flood Insurance Act of 1968, The Federal Fire Prevention and Control Act of 1974, The National Dam Safety Program Act, and The National Earthquake Hazard Reduction Act of 1977.  We also discussed the differences between authorization statutes and appropriation statutes.  We will explore each of these statutes and others in more detail in later podcasts.  

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Announcer: This has been a production of FEMA’s Office of the Chief Counsel in conjunction with the Office of External Affairs.  If you have any questions or would like more information, please contact the podcast series program manager at FEMA-OCC-Podcast@fema.gov.  Thank you and have a great day!