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However, Congress’s intent once again was not reciprocated with a change in the regulations that allowed for the reimbursement of federal agencies when providing disaster assistance once directed under the authority of the Stafford Act. The two relevant regulations, which were updated on May 22, 1989 in the wake of the Stafford Act, have remained unchanged since that date.¹⁷⁶ The one significant change can be found at 44 CFR 206.8(b) where previously reimbursement would not be approved for “work under an agency’s own authority” was changed to “costs incurred while performing work pursuant to disaster assistance authorities independent of the Stafford Act.”

No stated reason appears in either the interim or final rule as to why FEMA substituted that language. However, it could be read that it did reduce the authorities that would not be reimbursed from all authorities of federal agencies to just their disaster assistance authorities. But if the view previously set forth that when FEMA directs a federal agency to perform work under that agency’s inherent authority in Section 402 is taken, the authority for the work is no longer the directed agency’s own authority but that of Section 402, this distinction is rendered irrelevant.

176 54 FR 22162. This was the interim rule. The final rule was issued on January 23, 1990 at 55 FR 2284.

Why the discrepancy then between what Congress provided in the law and what FEMA restricts itself to? A clue may appear in some of the statements that accompanied the first interim rules issued by FEMA after the Stafford Act was passed.

Although virtually identical legislation was proposed in several bills during the 1980s, the provisions did not become law until passage of the Disaster Relief and Emergency Assistance Amendments of 1988, Pub. L.

100-707. Nevertheless, the legislative history leading to the enactment of Pub. L. 100-707 indicates a clear Congressional intent to authorize a much more limited range of federal assistance in response to

“emergencies” than in response to “major disasters.”¹⁷⁷

Title V of the Act indicates a clear Congressional intent that the resources and authorities of other federal agencies will be utilized first. Only if such authorities and resources are inadequate to meet immediate emergency needs will FEMA implement emergency assistance programs under the Act. Prior to enactment of Pub. L. 100-707, discussions in both the Senate and the House of Representatives indicate the clear intent that Stafford Act emergency declarations should not be used to override other federal response mechanisms already in place.¹⁷⁸

Likewise, a[t] page 4 in S. Rpt. No. 100-524 (September 7, 1988), which accompanied S. 2380, 100th Cong., 2d Sess., the Committee on Environment and Public Works of the United States Senate stated: In any emergency the President must first invoke other federal authorities available to him to meet the crisis. If there are other authorities, the role of the federal Emergency Management Agency would be limited to providing technical assistance and coordinating the efforts of other federal agencies under authorities granted to them under other federal acts. Only after a determination that assistance under other federal authorities is inadequate to meet the crisis may FEMA directly intervene.¹⁷⁹

Much of Congress’s discussion during the legislative history of the DREAA of 1988 focused on limiting FEMA’s role to appropriate events.¹⁸⁰ FEMA may have been mistaken by carrying over its focus on the declaration process for a major disaster or

177 54 FR 22162 Subpart B(3).

178 Ibid at Subpart C(2).

179 Ibid.

180 See generally Senate Report 100–524; House Report 100–517, 134 Cong Rec H 938, March 17, 1988; 134 Cong Rec H 10840, October 21, 1988; 134 Cong Rec S 17137, October 21, 1988; and 124 Cong Rec S 172333, October 21, 1988.

emergency, when it was clearly the Congress’ intent not to duplicate existing federal authorities that could handle the event on their own to the coordination and direction of federal agencies after a declaration. Once the facts justified a declaration, i.e., the event was of such magnitude that it deserved to trigger a declaration under the Stafford Act, Congress did not intend to continue to institute a wall between the Stafford Act and non-Stafford Act authorities. To the contrary, Section 402 clearly serves to coordinate both FEMA, exercising its Stafford authority, and federal agencies, exercising their non-Stafford authorities under the FCO. If this is the case, then FEMA’s current prohibition against reimbursing federal agencies for “work pursuant to disaster assistance authorities independent of the Stafford Act” is a matter of policy, not a matter of law. In addition, the person coordinating federal assistance delivered through the Stafford Act has the authority to both coordinate and direct the federal agencies responding to an event that results in a declaration under the Act. Also included is the ability to reimburse those federal agencies directed, pursuant to the authority found in sections 402 and 502 of the Stafford Act, to engage in activities they might have already been authorized to do and for which they already had funding, or for which, they may seek additional funding.¹⁸¹ I. MAXIMIZING THE LATENT FLEXIBILITY OF THE STAFFORD ACT

TO DIRECT AND REIMBURSE FEDERAL AGENCIES

The ability to reimburse federal agencies directed to perform work under the Stafford Act significantly increases the efficiency of the federal response to an existential catastrophe in three ways. First, it provides a “carrot” to federal agencies to respond to direction from the person vested with the power to direct federal agencies under the Stafford Act. Second, it removes the ambiguity of whether federal agencies, none of which it can be safely reasoned, are funded to the extent necessary to respond to an existential catastrophe, may not respond because of the fear they may quickly extinguish existing funds.¹⁸² Third, it increases the fiscal efficiency of the federal response by allowing disparate federal programs responding to an existential catastrophe to compete

181 See Appendix E for a graphic depicting the continuity of certain statutes from the DRA of 1950 through the Stafford Act.

182 While the DRF is not a limitless fund, it has been consistently funded to necessary levels by Congress.

for the same dollar based upon their priority.¹⁸³ In other words, with limited funds available, an EPA project would now compete in priority with the cost to evacuate citizens or to make emergency repairs to local transportation systems. According to the manner in which disaster funds are appropriated currently, each of those actions would likely be funded by separate appropriations in an uncoordinated manner not necessarily reflective of their priority. This lack of coordination can result in Congress appropriating funds for one action that might have been better used funding another part of the response.

This change in funding federal agencies responding to an existential catastrophe could also find additional efficiencies to assist in the prioritization of limited capabilities, including available funds, if accompanied by a way for the federal government to compete mission assignments amongst all primary and supporting Emergency ESFs.

FEMA currently does not have a process to “bid” out the work amongst federal agencies necessary to respond to requests for assistance from states. Instead, FEMA relies almost entirely upon the primary agencies for each ESF to execute MAs. The federal government does not fully utilize its ESF supporting agencies, and even among primary agencies, nearly all their MAs end up to going to those in uniform; the DoD and the U.S.

Army Corps of Engineers (USACE), and the USCG.¹⁸⁴ The first step to ending this evisceration of a real Whole of Government approach would be to execute the Congressional mandate to inventory federal response capabilities as required under 6 U.S.C. § 751. Once these capabilities were identified, each one would be the subject of a PSMA that could quickly order them to action.¹⁸⁵

183 See the United States Senate Committee on Appropriations Disaster Assistance Supplemental legislation for Hurricane Sandy where multiple federal agencies have sought individual reimbursement after funds have been expended. While Congress may wish to maintain such control, rather than ceding it to the Executive Branch, the current method is unable to provide real time prioritization of funds and could result in agencies not performing work that should be done, under fear Congress will not later reimburse it, or perform work Congress would not have wanted done but feels compelled later to reimburse.

184 Author’s review of historical MAs using FEMA records dating back to Hurricane Katrina and discussions with FEMA MA staff. This review occurred prior to Hurricane Sandy and does not reflect FEMA’s response to that disaster.

185 See 6 U.S.C. § 753(c) To expedite the provision of assistance under the National Response Plan (NRP), the President shall ensure that the Administrator, in coordination with federal agencies with responsibilities under the National Response Plan, develops prescripted mission assignments, including logistics, communications, mass care, health services, and public safety.

The purpose of this history and analysis of the federal Disaster Relief Acts and their implementing regulations was to provide evidence that the law, as it currently exists, supports unity of command under the Stafford Act. Specifically, it shows the ability to mobilize, coordinate, and direct federal agencies under the Stafford Act is not divorced from the ability to reimburse them, even for those agencies that could have engaged in those activities under their inherent authority. It also attempts to explain how current practice and regulations, which would impede unity of command by preventing the reimbursement of federal agencies for work they could have performed under their own authority, may have come about.

J. THE ADOPTION OF THE NATIONAL INCIDENT MANAGEMENT