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, Elizabeth Renieris.  

Elizabeth:	Hello and welcome back to FEMA’s Law Talk Podcast series.  My name is Elizabeth Renieris, and I am here with Brad Kieserman, FEMA’s Chief Counsel.  During this podcast, we are going to provide you with an introduction to the Post-Katrina Emergency Management Reform Act of 2006,  commonly referred to as “PKEMRA.”   After listening to this podcast, you should be able to recognize the important provisions of PKEMRA and understand how it changed FEMA’s organizational structure. 
Brad, can you start today by providing some general background information on PKEMRA?  Why did we need PKEMRA?  

Brad:	Elizabeth, PKEMRA arose because of Hurricane Katrina, which struck Florida and the Gulf Coast in 2005.  While Katrina served as a catalyst for significant changes in the Federal laws pertaining to the Department of Homeland Security in general and FEMA in particular, we can trace the underlying organizational issues that contributed to deficiencies in the response to Katrina to FEMA’s creation.  

Elizabeth:	Why is that, Brad?

Brad:	Well, you see Elizabeth, unlike most Federal agencies, FEMA was not what we call “a creature of statute,”—that means Congress didn’t create FEMA by passing a law establishing the Agency and its roles, missions, and authorities.  Instead, President Jimmy Carter created FEMA in 1979 by merging five agencies from the Departments of Defense, Commerce, and Housing and Urban Development, as well as GSA, into one new independent agency.

Elizabeth:	How could the President do that, Brad?  Wouldn’t that take an act of Congress or something?

Brad:	Elizabeth, President Carter used statutory presidential reorganization authority that existed in the late 1970s and submitted something to Congress called the Reorganization Plan No. 3 of 1978 in June of 1978.   At the time, reorganization plans submitted by the President went into effect unless either chamber of Congress passed a resolution of disapproval.  In FEMA’s case, the House of Representatives rejected the resolution of disapproval, and the Senate postponed the resolution indefinitely, by unanimous consent.  So, under that process, Congress allowed the Plan to go into effect.  On March 31, 1979, President Carter issued Executive Order No. 12,127, establishing FEMA as an independent agency on April 1, 1979.   

Elizabeth:	So, what was FEMA’s mission under the Reorganization Plan in 1979?

Brad:	Well, that was the issue, Elizabeth.  Neither the Reorganization Plan nor the Executive Order articulated a clear mission for the new agency.  Instead, the President transferred or delegated authorities to FEMA for ten distinct functions, including Fire Administration, Flood Insurance, and Disaster Relief, but the Plan never articulated a clear role or mission for FEMA.  The closest it came to a mission were four principles the President included in his message to Congress transmitting the Reorganization Plan.  Those principles are important because, as we’ll discuss in a moment, they will help us understand the extent to which PKEMRA changed both FEMA and emergency management in the United States.

Elizabeth:	What were those principles, Brad?

Brad:	The four principles were:

1.	Federal authorities to anticipate, prepare for, and respond to major civil emergencies should be supervised by one official responsible to the President and given attention by other officials at the highest level.
 
2.	An effective civil defense system requires the most efficient use of all available emergency resources.

3.	Whenever possible, emergency responsibilities should be extensions of the regular missions of Federal agencies. 

4.	Federal hazard mitigation activities should be closely linked with emergency preparedness and response functions. 

Elizabeth:	So, Brad, FEMA spends its time from 1979 to 2000 as a small independent agency.  Sometimes it was recognized for improvements, and sometimes criticized for its response to disasters with occasional calls to reassess and reform of the agency.  By 1999 and the early 2000s, there was a comprehensive reexamination of U.S. national security policies and processes, which led to a focus on “homeland security,” which was an outgrowth of decades of emergency preparedness and civil defense arrangements, and included many aspects of emergency management.  Then came the terrorist attacks of September 11, 2001.  

Brad:	That’s right, Elizabeth.  And, following the attacks of 9/11, Congress passed the Homeland Security Act in 2002 and created the Department of Homeland Security.  In 2003, FEMA was transferred to DHS as part of the Emergency Preparedness and Response Directorate.  That transfer divested FEMA of some of its comprehensive emergency management responsibilities.  At the time, that term, “comprehensive emergency management,” included four elements that should be familiar to everyone who works at FEMA.  Those four elements are:  preparedness, response, recovery, and hazard mitigation.  FEMA retained its response, recovery, and mitigation functions, but its emergency preparedness function was transferred to that Preparedness Directorate within DHS.  That Directorate included the Office of Grants and Training, the U.S. Fire Administration, the Office of the National Capital Region Coordination, and the Center for Faith-Based and Community Initiatives.

Elizabeth:	So, up until PKEMRA in 2006, FEMA derived much of its authority mainly from executive orders and delegations of authority from the President or the Secretary of Homeland Security, and after the 9/11 attacks the Agency underwent several reorganizations within DHS.  

Brad:	That’s right, Elizabeth.  Congress did not enact a statute establishing FEMA as a distinct entity or detailing the mission and responsibilities of FEMA until it passed the Post-Katrina Emergency Management Reform Act in 2006.  By the way, Congress enacted PKEMRA in 2006 as Title VI of the DHS Appropriations Act of 2007 (even though PKEMRA is actually an authorization act).  But, that’s another story.

Elizabeth:	Brad, did PKEMRA make many changes to Federal authorities related to emergency and disaster operations?

Brad:	Actually, Elizabeth, it did NOT make many changes to Federal authorities related to emergency and disaster operations.  It did, however, reorganize FEMA, expand its statutory authority, and imposed new conditions and requirements on the operations of the agency.  PKEMRA also defined comprehensive emergency management in statute and added the discipline of “protection” along with the more traditional disciplines of response, recovery, preparedness, and mitigation.

Elizabeth:	Brad, it sounds like PKEMRA has more to do with organizing the Federal government for success in emergency management than with any specific Federal emergency management program.  

Brad:	That’s exactly right, Elizabeth.  PKEMRA established new leadership positions within FEMA, brought new functions into FEMA, and restored some functions that had previously been removed in past reorganizations.  And, in doing that, Congress sought to resolve many of the administrative responsibilities for emergency management the Executive and Legislative branches of the Federal government had been debating, formulating, and revising incrementally since at least the end of World War II.

Elizabeth:	So, did PKEMRA provide FEMA with a clear mission statement?  

Brad:	It did, Elizabeth.  PKEMRA states that FEMA’s primary mission is “to reduce the loss of life and property and protect the Nation from all hazards, including natural disasters, acts of terrorism, and other man-made disasters, by leading and supporting the Nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation.”  That language now appears in 6 U.S.C. § 313—that’s now FEMA’s mission statute.

Elizabeth:	If that’s the “what,” Brad, did PKEMRA tell FEMA “how” to accomplish that mission?

Brad:	Yes, Elizabeth.  At the strategic level, PKEMRA directs the head of FEMA—whose title was changed from Director to Administrator—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.”  And, that language is in 6 U.S.C. § 314, which details many of FEMA’s authorities and responsibilities.
 
Elizabeth:	Are there any specific activities PKEMRA requires the Administrator to undertake to accomplish the mission? 

Brad:	Well, Elizabeth, 6 U.S.C. § 314, which is simply entitled, “Federal Emergency Management Agency” establishes the Agency, states the primary mission, and then lists 8 specific activities the Agency and the Administrator must undertake to accomplish the mission.  Those activities are 1) leading the nation’s emergency management efforts;  2) partnering with non-Federal entities to build a national emergency management system; 3) developing Federal response capabilities; 4) integrating FEMA’s comprehensive emergency management responsibilities; 5) developing and maintaining robust regional offices; 6) using DHS’s resources under the Secretary’s leadership; 7) providing assistance to build non-Federal emergency management capabilities including communications capabilities; and 8) developing and coordinating the implementation of a risk-based all hazards preparedness strategy.   

Elizabeth:	Wow, that’s a lot more detail than the 4 principles from 1979, and much greater recognition of the role and importance of non-Federal entities, but that’s still pretty broad.  Did Congress provide any additional guidance on FEMA’s authorities and responsibilities to do all of that?

Brad:	You bet, Elizabeth!  In 6 U.S.C. § 314, Congress described no less than 21 distinct authorities and responsibilities for FEMA mission accomplishment.  Those additional responsibilities include ensuring first responder effectiveness, supervising grants, administering and implementing the National Response Plan (now the National Response Framework), preparing and implementing Federal continuity of government and operations plans, and maintaining and operating the National Response Coordination Center (NRCC).  Other provisions of PKEMRA gave FEMA new authorities to address administrative problems that arose during the response to Hurricane Katrina.  For example, 6 U.S.C. § 725 requires the FEMA Administrator to establish a pre-positioned equipment program in at least 11 locations around the United States, and 6 U.S.C. § 724 requires FEMA to develop a logistics system that allows officials to track the location of goods during the transfer process from FEMA to affected States.

Elizabeth:	You also mentioned that PKEMRA made structural and organizational changes to FEMA.  Can you tell us more about those changes?  

Brad:	Well, Elizabeth, PKEMRA transferred most of the functions of the DHS Preparedness Directorate back to FEMA.  Specifically, it transferred to the “new FEMA” all functions previously administered by the old FEMA, including emergency alert systems, continuity of operations, and continuity of government activities.  The entities from the Preparedness Directorate that were exempted from the transfer to FEMA included the Office of Infrastructure Protection, the National Communications System, the National Cybersecurity Division, and the Office of the Chief Medical Officer—those entities all exist elsewhere in the DHS organization today.  

Elizabeth:	It sounds like PKEMRA made some significant changes to FEMA’s structure, but can’t that structure change?

Brad:	Great question, Elizabeth!  FEMA leadership has the authority to reorganize the Agency.  But, 6 U.S.C. § 316, which is entitled “Preserving the Federal Emergency Management Agency,” establishes FEMA as a “distinct entity” within DHS, like the U.S. Coast Guard and the U.S. Secret Service.  PKEMRA explicitly prohibits any substantial or significant reduction of the authorities, responsibilities, or functions of the Agency or the capability of the Agency to perform those missions, authorities, or responsibilities.  It also prohibits transfers of FEMA assets, functions, or missions to other parts of DHS, except for details or assignments that do not reduce the capability of FEMA to accomplish its mission.  

Elizabeth:	Brad, you mentioned earlier that PKEMRA made changes to emergency management leadership at FEMA.  Can you tell us more about that?

Brad:	Sure, Elizabeth.  Overall, PKEMRA abolished certain statutory positions, established several new statutory positions, made changes to some existing positions, and attached specific qualifications to several top leadership positions in the Agency.  Some of the highlights include, elevating the status of the FEMA Administrator by making him or her “the principal advisor to the President, the Homeland Security Council, and the Secretary for all matters relating to emergency management in the United States.”   Under PKEMRA, the FEMA Administrator reports directly to the Secretary of Homeland Security and the President may designate the Administrator as a member of the Cabinet in the event of “natural disasters, acts of terror, or other man-made disasters.”  PKEMRA also amended title 5 of the U.S. Code by providing the Administrator with the rank and pay of a Cabinet department Deputy Secretary.  Also, to ensure professional emergency managers always lead FEMA, PKEMRA requires the President to appoint an Administrator “from among individuals who have...a demonstrated ability in and knowledge of emergency management and homeland security; and...not less than 5 years of executive leadership and management experience in the public or private sector.” 

Elizabeth:	Brad, does PKEMRA say anything about the FEMA Regions?

Brad:	It sure does, Elizabeth.  6 U.S.C. § 317 provides for 10 regional FEMA offices with specific responsibilities, and establishes the position, role, and authorities of FEMA Regional Administrators.  Regional Administrators are required by PKEMRA to work with non-Federal partners on the comprehensive emergency management components, develop regional capabilities for a national catastrophic response system, oversee the regional strike teams, and maintain regional response coordination centers.  PKEMRA also created Regional Advisory Councils, Regional Office Strike Teams, and regional Emergency Communications Coordination Working Groups.   

Elizabeth:	Any other PKEMRA organizational changes you want to you highlight, Brad?

Brad:	Yes, Elizabeth.  At the national level, PKEMRA provided for the establishment of a National Integration Center or NIC with specific responsibilities and roles.  It also added two new positions—a Disability Coordinator and a Small State and Rural Advocate—as well as a new entity known as the National Advisory Council.  PKEMRA additionally permitted the Administrator to establish Hurricane Katrina and Hurricane Rita recovery offices in Mississippi, Louisiana, Alabama, and Texas.  The timing of when these offices will close is left to the discretion of the Administrator.  

Elizabeth:	What does PKEMRA require of the NIC, Brad?  

Brad:	The NIC is responsible for a variety of duties related to emergency preparedness capabilities.  It is responsible for managing and maintaining both the National Incident Management System (NIMS) and the National Response Plan (now known as the National Response Framework).  NIMS provides a “consistent nationwide template to enable Federal, State, local, and tribal governments and private-sector and nongovernmental organizations to work together effectively and efficiently to prepare for, prevent, respond to, and recover from domestic incidents, regardless of cause, size, or complexity, including acts of catastrophic terrorism.”   The National Response Framework, or NRF, “presents the guiding principles that enable all response partners to prepare for and provide a unified national response to disasters and emergencies – from the smallest incident to the largest catastrophe.”   To test and evaluate NIMS and the NRF, PKEMRA also directed the FEMA Administrator to develop a national exercise program.  The exercises are to be “as realistic as practicable, based on current risk assessments, including credible threats, vulnerabilities, and consequences, and designed to stress the national preparedness system.”  
 
Elizabeth:	Interesting, that seems to touch on the “preparedness” aspect of comprehensive emergency management.  Can you tell us if PKEMRA also affected the authorities related to FEMA’s response and recovery missions?

Brad:	Of course, Elizabeth.  PKEMRA bolstered several of FEMA’s response teams.  It recognized FEMA’s Emergency Response Teams and called on them to meet target capability levels, be properly staffed, and report on their state of readiness. PKEMRA established a minimum of 3 national response teams and required sufficient regional response teams.  It also formally authorized the Urban Search and Rescue teams, also known as USAR teams, and appropriated money to them.   PKEMRA additionally called for the establishment of the National Emergency Family Registry and Locator System.   This voluntary system works in collaboration with the Department of Justice, the National Center for Missing and Exploited Children, the Department of Health and Human Services, and the American Red Cross.  Similarly, PKEMRA directed the Administrator to establish two emergency locator and reunification services:  the National Emergency Child Locator Center and the National Family Registry and Locator System.   With respect to recovery, PKEMRA required the Administrator, working in coordination with other Federal agencies, State, Tribal, and local governments, as well as non-governmental organizations, to develop and maintain a “National Disaster Recovery Strategy.”   PKEMRA also called for a “National Disaster Housing Strategy” separate from, but related to, the recovery strategy. 

Elizabeth:	While we are talking about FEMA’s response and recovery missions, can you tell us if PKEMRA affected how the Federal government delivers disaster assistance?

Brad:	Elizabeth, PKEMRA affected how the Federal government delivers disaster assistance by making some important amendments to the Stafford Act—so, those are changes to title 42 of the U.S. Code, not title 6.  For example, PKEMRA amended the Stafford Act to authorize FEMA, acting on behalf of the President, “to provide accelerated Federal assistance and Federal support where necessary to save lives, prevent human suffering, or mitigate severe damage, which may be provided in the absence of a specific request” from State officials.   If unrequested Federal assistance is provided, FEMA must attempt to coordinate the delivery of the aid with State officials but it may not delay delivery of the aid because of its coordination efforts.  PKEMRA also provided authority for FEMA to accommodate individuals with disabilities as part of its disaster assistance, and it amended the Stafford Act to make durable medical equipment for disabled persons a part of essential assistance.   Likewise, PKEMRA prohibited discrimination against individuals with disabilities and those with limited English proficiency.   The FEMA Administrator is required by PKEMRA to work with State and local governments to identify groups with limited English proficiency and ensure that information is made available to those groups before and during a disaster.  Finally, PKEMRA provided FEMA with the authority to provide transportation assistance to relocate individuals displaced from their pre-disaster primary residences “to and from alternative locations for short or long-term accommodation or to return an individual or household to their pre-disaster primary residence or alternative location.”        
  
Elizabeth:	It seems like PKEMRA has had a big affect on FEMA’s mission, responsibilities, and structure! 
 
Brad:	It sure has, Elizabeth!  In many respects, PKEMRA’s recognition of and emphasis on supporting our non-Federal partners provides the modern legal underpinnings of the “Whole of Community” approach to comprehensive emergency management.  We will be discussing additional aspects of PKEMRA in future podcasts.  Stay tuned for an entire series of Law Talk podcasts entitled “PKEMRA 101.”    

Elizabeth:	Brad, thank you so much for speaking with us today.  That wraps up this installment of the FEMA Law Talk Podcast Series.  Today, we provided a general overview of the Post-Katrina Emergency Management Reform Act.  We hope that you enjoyed learning about how PKERMA provided FEMA with a clear statutory mission, additional responsibilities, and a degree of organizational autonomy.  Please join us again for another installment of Law Talk! 

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