Topic: Overview of Readiness and Pre-Declaration Activities 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, Quin Lucie Host: Welcome back to FEMA Law Talk. My name is Quin Lucie, and I am here with the Chief Counsel of FEMA, Brad Kieserman. In an earlier podcast, Brad provided our listeners with an overview of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. This week Brad and I are going to discuss FEMA’s authority to act before a Governor’s request for assistance. By the end of this podcast, you should be able to describe some of FEMA’s authorized readiness and pre-declaration activities. Brad, in our earlier podcast, you stated that Stafford Act assistance is typically triggered by a Governor’s request for assistance and then a presidential declaration. Does that mean FEMA cannot act before the President declares a major disaster or emergency? Brad: Great question, Quin! Under the Stafford Act, the President’s declaration of a major disaster or an emergency triggers FEMA’s authority to respond to the declared incident.1 Readiness and pre-declaration activities, however, are critical in ensuring an effective disaster or emergency response and recovery. Host: What kinds of things are considered to be readiness and pre-declaration activities? 1 Stafford Act §§ 401 & 501, 42 U.S.C. §§ 5170 & 5191. Brad: They generally include two categories of activity: 1. Non-disaster specific activities that are necessary to maintain FEMA’s readiness to respond to threats as they arise; and 2. Disaster-specific activities that occur when there is an identified threat and a declaration is anticipated, such as prepositioning and staging commodities and response personnel. Host: Brad, I remember that Stafford Act assistance is paid for from a special fund called the Disaster Relief Fund (DRF). Are readiness and pre-declaration activities also funded by the DRF? Brad: Yes, readiness and pre-declaration activities can be funded by the DRF. I previously explained that when the President declares a major disaster or emergency, FEMA may expend funds from the DRF to provide assistance to eligible individuals and entities (including grants and direct assistance) that the Stafford Act authorizes under Title IV, Major Disaster Assistance Programs, and Title V, Emergency Assistance Programs. FEMA may also use the DRF prior to a declaration for its own Disaster Readiness and Support (DRS) costs—those are the costs that are necessary to support the agency’s primary response and recovery mission. And, FEMA can also use the DRF to fund pre-declaration surge expenses it incurs to prepare for an identified threat, such as an approaching hurricane. Host: Is the use of the DRF for readiness and pre-declaration activities explicitly provided for in the Stafford Act? Brad: Not exactly. Although these expenses are not specified in the Stafford Act, FEMA may use the DRF to fund them because they are necessary expenses under the "necessary expense doctrine." The necessary expense doctrine requires, among other things, that the expense is essential to the agency’s abilities to carry out its response and recovery authorities. Host: What activities are included in DRS costs? Brad: The $273 million Disaster Readiness and Support Fiscal Year 2011 Expenditure Plan that FEMA submitted to Congress includes a broad range of non-disaster specific FEMA organizational elements and activities that are critical to support FEMA’s response and recovery mission.2 Examples include: A Housing Inspection Services readiness contract covering inspections of disaster damaged homes and personal property to determine applicant eligibility; The funding of standing Interagency Agreements (IAA) to ensure readiness of Stafford Act programs and services, such as, Crisis Counseling through the U.S. Department of Health and Human Services, Disaster Unemployment Assistance through the U.S. Department of Labor, and Disaster Legal Services through the Young Lawyers Section of the American Bar Association; surge staffing for disaster survivor tele-registration intake by the Internal Revenue Service; and the purchase of commodities through the General Services Administration; and 289 non-disaster specific 2-year Cadre of On-Call Response Employees (CORE) positions. 2 Department of Homeland Security, Disaster Readiness and Support FY 2011 Expenditure Plan and Quarterly Obligations, Fiscal Year 2011 Report to Congress (June 20, 2011). Host: Brad, I have heard about FEMA’s "surge" account before. What is it and why does FEMA have it? Brad: The Office of the Chief Financial Officer established the "surge account" within the DRF, which FEMA uses for pre-declaration activities. FEMA may use the DRF surge account to fund certain costs prior to a declaration as a necessary expense when an identified threat could reasonably be expected to result in a declaration by the President. Surge costs are pre-declaration mobilization and readiness expenditures of time, money, and labor to mobilize or prepare to mobilize support when a major disaster or emergency is imminent, but not yet declared, and the disaster or emergency will clearly require federal resources and assets. Host: Could you give our listeners some examples of pre-declaration activities that are paid from the DRF’s "surge account?" Brad: Of course, Quin. Pre-declaration activities that are paid for from the "surge account" include: Prepositioning assets and commodities; Mission assignments for federal operational support for pre-event deployment (but not operational assistance to states or local governments until a declaration is issued); Certain surge-related personnel costs; and Supply costs directly associated with the initial response to events not yet declared. Host: So, Brad, the difference between DRS costs and "surge" funding is that DRS costs are not disaster specific whereas "surge" funding is used for certain costs that are incurred when an identified threat could reasonably be expected to result in a declaration by the President? Brad: You got it, Quin. Host: Interesting! One of the activities you mentioned is prepositioning assets and commodities. How does FEMA carry out this important activity? Brad: FEMA maintains prepositioned critical disaster relief assets and supplies, called Initial Response Resources (IRRs), in strategically located Distributions Centers within and outside the continental United States. Primary Distribution Centers for prepositioned IRRs are located in Atlanta, GA; Fort Worth, TX; Cumberland, MD; Frederick, MD; Moffett Field, CA; Puerto Rico; Hawaii; and Guam. IRRs were initially created as a result of leftover commodities purchased through the DRF for disasters, and the DRF also funds their periodic replenishment. Host: What sort of equipment is contained in the IRRs? Brad: The IRRs contain two tiers of equipment. Tier I is life-saving and life-sustaining resources, including water, tarps, meals, cots, blue roofing sheeting, blankets, hygiene kits, and generators intended to sustain lives and prevent further property damage during an emergency or disaster. Tier II is key operational support resources, including Joint Field Office (JFO) kits consisting of tables, chairs, computer support equipment, and cables for 100-250 person offices; Temporary Housing Units (THUs); and Mobile Communications Office Vehicles (MCOVs), formerly called Mobile Disaster Recovery Centers (MDRCs). Host: How are the IRRs distributed? Brad: During catastrophic events, IRRs may be distributed to as many as 60 forward sites for distribution. During complex disaster scenarios, IRRs flow through specifically designed FEMA Incident Support Bases and Joint Field Office (JFO) Staging Areas, to Resource Staging Areas or Points of Distribution that State and local governments operate. Host: Are there any other authorized readiness or pre-declaration activities that our listeners should know about? Brad: Absolutely, Quin. The Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA) directed FEMA to identify and contract for recurring disaster response requirements.3 FEMA currently has over 60 advance contracts with private companies, nonprofit organizations, and other federal agencies that may be activated following a declaration to supply essential disaster related supplies and services. Many of these contracts fall under DRS costs. Host: How does FEMA determine which companies should receive these advance contracts? Brad: Section 307 of the Stafford Act requires FEMA to give preference "to the extent feasible and practicable" to local firms and individuals for many Stafford Act operations. It is important to note that this provision applies not only to FEMA contracts but to all expenditures of federal funds for "debris clearance, distribution of supplies, reconstruction, and other major disaster or emergency assistance activities," including, for example, contracts that the U.S. Army Corps of Engineers awards for debris removal, the Blue Roof program, and other disaster-related work. A principal purpose of this requirement is to assist the economic recovery of communities affected by disasters. Host: So, advanced contracting is another type of authorized readiness or pre-declaration activity that FEMA undertakes. Are there any others? 3 See 6 U.S.C. § 791. Brad: Yes, Pre-scripted Mission Assignments are critical for FEMA to accomplish its mission. As you may remember from our earlier podcast on the Stafford Act, a mission assignment is a work order issued by FEMA to another federal agency, with or without reimbursement, directing the agency to complete a specific task. Congress directed FEMA in PKEMRA to develop Pre-scripted Mission Assignments (PSMAs) with federal agencies having responsibilities under the National Response Framework in areas including logistics, communications, mass care, health services, and public safety.4 Key examples of the 250+ PSMAs FEMA has issued to federal agencies as of July 2011 include: Department of Health and Human Services, including the National Disaster Medical System, for medical care and support; U.S. Army Corps of Engineers for debris removal, logistics and water; Department of Defense for aero-medical patient evacuation; U.S. Coast Guard for search and rescue support. Host: Wow, Pre-Scripted Mission Assignments sound important. What other authorized readiness or pre-declaration activities can you tell us about? Brad: Depending on the nature and scope of an incident, FEMA may preposition Incident Management Assistance Teams (IMATs), Urban Search and Rescue (USAR) teams and Mobile Emergency Response Support (MERs) personnel in anticipation of a declaration of a major disaster or emergency. In certain circumstances, Nuclear Incident Response Team assets may be deployed from the Department of Energy. Prepositioning is funded from the surge account of the Disaster Relief Fund. Host: Ok, to recap, some of FEMA’s readiness and pre-declaration activities include IRR, advanced contracting, PSMAs, and pre-positioned personnel. 4 See 6 U.S.C. § 753. Brad: That’s right, Quin, and there are others that we have not mentioned yet. Host: Like what? Brad: For instance, to facilitate prepositioning, FEMA may issue "federal operations support" mission assignments that are 100% federally funded and essential for FEMA to be ready for an imminent federal emergency or disaster declaration. A mission assignment FEMA issues in anticipation of a declaration that is essential for FEMA to be ready for the declaration is a necessary expense in keeping with the "necessary expense" doctrine. And, in the context of State and local eligibility for Federal assistance, section 424 of the Stafford Act makes clear that reasonable expenses incurred in anticipation of and immediately preceding a Stafford Act declaration may also be eligible. Host: Are there any precautions or limitations we should be aware of? Brad: Yes. FEMA may grant a revocable license for certain commodities or equipment to a State, territory, or possession in the absence of, or in advance of, a Presidential declaration to a limited extent because the Stafford Act provisions permitting transfers are not available without a declaration. In order to grant a revocable license in the absence of a declaration, employees should consult the Office of Chief Counsel (OCC) for review of the revocable license and to ensure the transaction meets the legal requirements. The employee must also obtain approval from the appropriate authority. I want to stress that it is very important that OCC be involved early on in the decision-making process. Host: Thank you for taking the time to speak with us today, Brad. That wraps up this installment of the FEMA "Law Talk" Podcast Series. Today we provided a general overview of FEMA’s readiness and pre-declaration activities. 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!