Federal Disaster Policies After Terrorists Strike: Issues and Options for Congress

Congressional research reportJun 24, 2002

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Order Code RL31464

Report for Congress

Received through the CRS Web

Federal Disaster Policies After Terrorists Strike:

Issues and Options for Congress

June 24, 2002

Coordinated by Keith Bea

Specialist, American National Government

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Federal Assistance After Terrorists Strike:

Issues and Options for Congress

Summary

As a result of the terrorist attacks of 2001, a plethora of legislation has been

enacted and continues to be considered by the 107th Congress to address homeland

security and emergency management issues. Much of the debate in and out of

Congress focuses on legislation that addresses policies and practices intended to

prevent future attacks. Congress is also considering other policy issues, including

those that would be implicated should another attack occur, despite the best

prevention and deterrence efforts. How will the federal government respond to the

short- and long-term needs of stricken communities? Such policies guide federal

consequence management actions.

This report, prepared at congressional request, is intended to assist Congress as

it considers options for consequence management legislation. The report collects and

examines information on federal policies that would be implemented in the event that

other terrorist attacks occur. It then asks about each of these policies: Based on

experiences gained thus far, should Congress consider changes in federal

consequence management policies to address the effects of possible future attacks?

The report explores two types of issues—selected administrative issues pertinent to

the delivery of assistance, and selected policy issues about the assistance provided.

The 12 issue sections in the report follow a common format: an issue statement,

background information and analysis (including information specific to terrorist

attacks), and policy options. For the most part, this report concentrates on the impact

of the airliner attacks in New York City because the consequences of those attacks

in a major urban center raise complex issues of response and recovery that were not

as evident in Pennsylvania, Virginia, and the District of Columbia after the other

airline crashes and the anthrax mailings.

The report is not a critique of federal consequence management policies and

actions. Despite record levels of federal assistance, all expectations and needs after

terrorists strike will not be, and cannot be, met. Unfortunately, other perceived

failures or questions will likely be brought to the attention of Congress in the event

that other terrorist attacks occur in the United States.

This report is not a comprehensive collection of all pertinent issues. It has been

prepared to help Members of Congress consider the relative merits of selected

legislative options related to federal consequence management in light of reports of

problems, deficiencies, or questions raised after September 11. Other issues that

Congress might elect to consider will be identified and included in future updates to

this report.

Contents

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

General Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Policy Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ADMINISTRATIVE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Definition of “Major Disaster” and “Emergency” . . . . . . . . . . . . . . . . . . . . 14

Eligibility for Stafford Act Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Federal Coordination of Recovery Assistance . . . . . . . . . . . . . . . . . . . . . . . 33

Expedited Public Health Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Tracking Federal Costs of Disasters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

POLICY ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Local Government Revenue Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Reimbursement for Security Alerts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Environmental Hazard Assessment and Communication . . . . . . . . . . . . . . 68

Indoor Air Testing and Cleaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Measures of Need for Temporary Housing . . . . . . . . . . . . . . . . . . . . . . . . . 90

Small Business Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Assistance to Education Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Summary of Policy Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

List of Tables

Table 1. Statutory Definitions of “Major Disaster” and Emergency . . . . . . . . . 17

Table 2. Federal Disaster Assistance Obligations, FY1984-1993 . . . . . . . . . . . 50

Table 3. Summary of CDL Program, 1976 to 2001 . . . . . . . . . . . . . . . . . . . . . . 56

Table 4. Summary of CDLs by Current Status, 1976 to 2001 . . . . . . . . . . . . . . 57

Table 5. CDLs Greater than $5 Million . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Appreciation is extended to Angela Napili of the Office of Information Resources

Management for bibliographic and research assistance.

Federal Assistance After Terrorists Strike:

Issues and Options for Congress

Overview

Following the terrorist attacks of September 11, 2001, Congress and the Bush

Administration quickly moved to meet the needs of victims, their families, and the

stricken communities and businesses of New York City and Virginia. Congress

appropriated funds in emergency supplemental legislation (P.L. 107-38 and P.L. 107117) for a range of purposes including payments to victims, removal of debris,

reconstruction of federal buildings and non-federal public facilities, and emergency

services. The assistance was provided by federal agencies through programs that

have been long established under existing laws that authorize grants, loans, technical

assistance, and the use of federal resources to save lives and property and to speed

recovery.

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (the

Stafford Act) is a key statute that authorizes the President to determine when and

what types of federal assistance should be dedicated because a disaster has

overwhelmed state and local resources.1 Other statutes authorize specified federal

agency heads to provide aid for certain activities or purposes.2

Since September 11 considerable assistance, roughly $6 billion through March

2002, has been obligated for disaster assistance and other non-defense purposes

solely from the Emergency Response Fund established pursuant to appropriations in

P.L. 107-38.3 (As noted in the section “Tracking Federal Costs of Disasters,” it is not

possible to accurately identify total federal disaster assistance obligations.)

According to the Congressional Budget Office, $11.8 billion had been appropriated

for communities and victims for disaster relief as of March 31, 2002, in P.L. 107-38

and P.L. 107-117.4 President Bush reportedly promised that at least $20 billion

42 U.S.C. 5121 et. seq.

For an overview of federal assistance programs see: CRS Report RL31125, Recovery from

Terrorist Attacks: A Catalog of Selected Federal Assistance Programs, coordinated

by Ben Canada. See also: CRS Report RS20739, Federal Disaster Relief Programs: Brief

Summaries, by Keith Bea.

U.S. Office of Management and Budget, “Report on Expenditures from the Emergency

Response Fund” (Washington: March 31, 2002).

U.S. Congressional Budget Office, The Budget and Economic Outlook: Fiscal Years 20032012 (Washington: Jan. 2002), p. 117.

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would be provided to New York.5 Despite this assistance, news reports, statements

by officials testifying before Congress, and other sources provide insights into

perceived failures, gaps, and weaknesses in the range of federal policies.

This report has been prepared at the request of Members of Congress who

identified issues that might be explored by Congress if other terrorist attacks occur

in the United States. The request generally sought information that would facilitate

congressional consideration of existing governing authorities in order to improve

federal action in the future. The specific issues identified by the Members included:

1. Assisting communities suffering due to tax revenue shortfalls that result

from a terrorist attack;

2. The definitions of “major disaster” and “emergency” in the Stafford Act, and

related presidential declaration authority, to determine if other provisions may

be necessary to respond to destruction resulting from a terrorist attack;

3. Policies and practices concerning the reimbursement of costs incurred by

state and local governments for “high security alerts” issued by the director of

the Office of Homeland Security, or other federal officials;

4. Gaps in federal statutes that address environmental hazards and public health

concerns;

5. The issues associated with economic development policies after disasters

(including terrorist attacks) occur, notably with regard to the provision of loan

assistance to small businesses;

6. The availability of information on federal costs incurred from past disaster

declarations and the need to improve the quality of such information for

congressional consideration;

7. Federal coordination of large-scale recovery efforts after terrorist attacks,

including current procedures and plans for agencies to combine resources;

8. Possible revision of provisions concerning the eligibility of organizations for

Stafford Act assistance, such as the expansion of the definitions section to

include certain for-profit enterprises such as utilities or medical institutions;

and,

9. The unmet needs of educational institutions and systems.

This report has 12 issue sections because four separate entries have been included on

the fourth issue, gaps in environmental and public health policies.

Raymond Hernandez, “Bush Offers Details of Aid to New York Topping $20 Billion,” The

New York Times, March 8, 2002, p. A1.

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Because the Stafford Act, most of which is administered by the Federal

Emergency Management Agency (FEMA), authorizes funds for a wide range of

disaster assistance activities, it is the focus of much of the discussion in this report.

However, federal consequence management policies are based upon statutory

authorities beyond the Stafford Act. Accordingly, the report provides information

on and discusses policy options for other statutes administered by federal agencies

other than FEMA.

The 12 issue areas included in the report may be viewed as an initial attempt to

identify areas of federal policy that Congress might consider. As debate proceeds on

legislative options, other issues will likely be identified and included in updates to

this report. This report is not intended to be comprehensive in identifying potential

issues for congressional consideration, but of assistance in debate on specific policy

issues or in a reconsideration of a range of federal emergency policies.

Federal Policy Limitations. Certain needs are common to all disasters,

whether of terrorist or natural origin. Survivors require temporary shelter and

possibly long-term housing alternatives when insurance coverage is nonexistent or

inadequate. Threats to health increase, financial assistance might be sought to meet

unexpected urgent needs, and public services might be disrupted or destroyed.

Federal disaster assistance policy has evolved over much of the Republic’s existence

to better meet these needs and to address others previously unmet.6

As a result of the growth and development of benefits over decades, citizens

have apparently developed increasing expectations of the assistance to be provided

after catastrophes. As summarized by one Member of Congress after Hurricane Hugo

struck the Carolinas and an earthquake destroyed parts of San Francisco in 1989:

I think one of the problems we have often had is that the expectations people

have for what FEMA is going to do are often not matched by what FEMA is able

to do, quite frankly. I think there has been a situation where we have raised

expectations and those expectations have not been met.... Perhaps the real issue

here is how we educate people to what FEMA is able or not able to do given the

legislation.7

That perception is not limited to FEMA and the policies it implements; it

arguably applies to all federal consequence management policies. Some expectations

cannot be met by the federal government because they are unrealistic, costly, or

difficult, if not impossible, to provide to all victims. For many victims of disasters,

For an overview of the historical basis for federal disaster assistance policy see: Michele

L. Landis, “Let Me Next Time Be Tried by Fire: Disaster Relief and the Origins of the

American Welfare State 1789-1874,” Northwestern University Law Review, vol. 92, Spring

1998, p. 967-1034. For information on the relatively recent evolution of federal disaster

policies see: U.S. Congress, Senate Bipartisan Task Force on Funding Disaster Relief,

Federal Disaster Assistance, S. Doc. 104-4, 104th Cong., 1st sess. (Washington: GPO, 1995).

Statement of Representative William F. Clinger, Jr. in: U.S. Congress, House Committee

on Public Works and Transportation, Subcommittee on Investigations and Oversight,

Federal Emergency Management Agency’s Response to Natural Disasters, hearings, 101st

Cong., 2nd sess., May 1 and 2, 1990 (Washington: GPO, 1991), pp. 127-8.

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federal assistance cannot compensate for certain losses, including the death of or

permanent injury to loved ones, emotional trauma, and permanent changes in

neighborhoods. Some victims or communities may never be the same, and some

losses from terrorist attacks, in particular, can never be compensated. Other

expectations may be considered more realistic, but the needs of individual victims

and communities may overwhelm available federal resources. Despite the best of

intentions and efforts, the federal government cannot make whole the communities

that have been victimized by terrorist attacks. Federal aid assists, but does not

completely heal or resolve, losses. Historically, Congress has established the

boundaries of the extent to which expectations should be met.

The attacks of September 11 have renewed congressional interest in evaluating

the effectiveness of federal emergency management policies (now referred to, to

some extent, as homeland security).8 Both the scope and the administration of those

policies are under review9 as Members of Congress hear from constituents about

unmet needs as well as administrative difficulties that may be frustrating, considered

inhumane, or seen as incomprehensible. Throughout, Members of Congress will be

called on to balance perceived needs with fiscal and constitutional limitations.

Overall Structure of Report. This report provides background information

and policy analysis on both administrative and policy issues related to the

consequences of terrorist attacks in the United States. The report is intended to assist

Members of Congress and staff in the evaluation of legislation already introduced and

options for new legislation. While the terrorist attacks have served as catalysts for

the current debate, most of these issues apply equally to other catastrophic events.

As shown in the “Background” information included in each issue section, many of

these issues have been debated in the past, sometimes without resolution.

The first section of the report addresses administrative issues that have been

identified since September 11. These issues include the criteria used to determine

which communities or victims receive assistance, the procedures used to administer

the assistance, and the collection of information about the assistance provided. The

specific issues discussed include the following:

! Definition of “Major Disaster” and “Emergency”: What are the terms used in

federal statutes to trigger federal assistance; should Congress consider

legislation to revise the criteria for federal action?

The term “emergency management” includes a range of actions that involve planning for

disasters, responding to immediate needs, stimulating the long-term recovery of the affected

area, and reducing disaster risks (mitigation) for the future.

The CRS Terrorism Electronic Briefing Book provides overview information on

congressional action and issues under debate. See:

[http://www.congress.gov/brbk/html/ebter1.shtml], visited June 11, 2002. For a compilation

of legislation introduced on all facets of the terrorism issue, see:

[http://www.congress.gov/brbk/html/ebter149.html], visited May 23, 2002.

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! Eligibility for Stafford Act Assistance:

Should private, for-profit

organizations be eligible to receive grants and technical assistance provided

to public or nonprofit organizations?

! Federal Coordination of Recovery Assistance: Do existing authorities and

plans governing federal recovery programs sufficiently facilitate coordination

of federal assistance?

! Expedited Public Health Studies: To protect citizens from diseases or health

risks, should federal law be amended to expedite public health studies?

! Tracking Federal Costs of Disasters: Is legislation needed to require the

systematic compilation of federal disaster assistance expenditures?

The second section of the report reviews some of the emergency management

policy issues reported or discussed since September 11. The types and amount of

federal assistance provided and options for federal involvement in meeting victims’

needs are discussed in this section. The seven substantive policy issues included in

this report include the following:

! Local Government Revenue Loss: Should the federal government provide

assistance for non-federal governments’ tax revenue replacement? Is so,

under what limitations?

! Reimbursement for Security Alerts: What are the options for possible federal

participation in or reimbursement of security costs associated with terrorist

attack alerts?

! Environmental Hazard Assessment and Communication:

How might

Congress address concerns that responses to threats posed by environmental

hazards have been deficient and have failed to protect the health of residents

and workers?

! Indoor Air Testing and Cleaning: Are statutory and administrative policies

sufficient to establish responsibilities for these tasks?

! Temporary Housing: Should Congress reconsider existing authorities for the

provision of temporary housing needs after terrorist attacks?

! Small Business Assistance:

In the event of a disaster of catastrophic

magnitude, should federal authorities that stimulate recovery be revised?

! Assistance to Education Systems:

Are there unique and unmet needs

associated with effects of attacks that result in damages to public education

systems?

Caveats: Limitations of This Report. Three major caveats should be kept

in mind by readers of this report. First, the sources (generally news stories) used to

identify issues or problems encountered after September 11th may be of questionable

accuracy, may not be corroborated, or may have been produced with a partisan or

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biased intent. Second, the report has been prepared to address issues that might arise

if the United States is attacked again. The likelihood of future attacks has not been

assessed in the preparation of the report; the assumption that other attacks will take

place might (we hope) prove incorrect. Third, the range of issues included in this

report is incomplete but partially indicative of the consequence management policy

issues Congress might decide to consider.

Information Sources. The first limitation concerns the information sources

used to prepare this report. A search of databases and agency contacts reveals that

only one report has been issued by a federal agency to summarize and identify

problems or issues that arose from the September 11 attacks.10 Some non-federal

organizations have completed limited “lessons learned” reports on issues primarily

associated with the emergency response phase, such as protection for first

responders,11 the collection and management of blood supplies,12 and health care

system needs.13

Also, federal information sources were not consulted for every issue raised in

the report. Other than the collection of primary data for the “Local Government

Revenue Loss” section, no attempt has been made to consult with officials from the

Federal Emergency Management Agency (FEMA) to assess the validity of some of

the information in the news reports. In part, these contacts were not initiated to

expedite the delivery of this information to Congress. To the extent known, however,

the data collected for this report reflects much of the information disseminated thus

far. A database search conducted by CRS revealed that no documents other than

those cited in this report have been published by federal agencies on the lessons

learned or experiences associated with the implementation of federal policies in the

post-9/11 period.14

The sources consulted in the preparation of this report also reflect the limitations

and caveats associated with the passage of time. While some of the consequence

management issues surrounding the attacks of September 11 in New York City may

have been somewhat or even fully resolved (such as the clearance of debris, certain

financial assistance needs, and eligibility determinations), others appear, or are

U.S. Environmental Protection Agency, Lessons Learned in the Aftermath of September

11, 2001 (Washington: GPO, 2002).

Brian Jackson and others, Protecting Emergency Responders—Lessons Learned from

Terrorist Attacks, (Arlington, VA: RAND, Science and Technology Policy Institute, 2001).

American Association of Blood Banks, Interorganizational Task Force on Domestic

Disasters and Acts of Terrorism, Report and Recommendations, at:

[http://www.aabb.org/Pressroom/In_the_News/idfddat013002.htm], visited June 14, 2002.

Joint Commission on Accreditation of Healthcare Organizations, “Mobilizing America’s

Health Care Reservoir,” Joint Commission Perspectives, Dec. 2001, at:

[http://www.jcrinc.com/subscribers/perspectives.asp?durki=2512&site=10&return=1122],

visited June 14, 2002.

As noted previously, this report is expected to be updated and expanded by CRS. Newly

available information and analysis pertinent to the report will be considered in preparation

of the update.

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reported to be, in flux.15 The 12 issues in this report have been identified through

reviews of secondary sources, notably news reports, that discuss problems

encountered by individuals, organizations, and government agencies after September

11. Events and decisions have changed rapidly at times, and some of the information

and sources referenced in this report may have become moot or superseded through

discussions involving federal and non-federal officials.

Threat Assessments. The second limitation or caution concerns the

references in this report to future terrorist attacks. Such references should not be

construed to reflect any assumed probability that attacks will occur. Risk or threat

assessment, or the application of risk management and assessment methodologies to

the terrorist threat, is an analytical field still in development.16 While this study

assumes that future terrorist attacks, possibly even more devastating than those of

September 11, could occur, the authors have no basis for assessing the likelihood that

they will occur.

Scope of Report. The third limitation concerns the breadth of issues included

in the report. Some are relatively discrete and identifiable issues—notably the

eligibility of certain organizations for grant-in-aid assistance, the collection of data

on federal costs, and reimbursement of non-federal units of government for securityalert costs. Other issues—such as environmental and public health consequences,

coordination of recovery assistance, and aid to education systems—involve broader

policy issues that are only partially addressed in this report. In addition, some

consequence management issues that have been raised in press reports and other

sources are not addressed at all by this report, including victim compensation, mental

health counseling needs outside the school systems, and financial aid for certain

private businesses.

Perhaps the most significant limitation concerns the question of the overall

intent of federal consequence management policy. The issues addressed in this report

relate to possible modifications of existing policies but do not address options related

to a complete revision of federal policy objectives. More fundamental policy

questions might be phrased as follows: Should federal disaster assistance always be

provided after an attack? Should Congress consider factors—such as competing

budget priorities (e.g., funding for the armed forces to fight the war, continuity of

government, or urgent domestic social policy or civilian protection needs), the extent

to which a community has been contaminated, or the degree to which certain areas

has been or might be repeatedly struck by terrorists—in determining when, where,

and how much consequence management assistance is to be provided?

This report primarily focuses on the attack in New York City because the problems and

questions that have been reported in New York City pose particularly complex policy

questions and provide an indication of the possible impact of future attacks in metropolitan

areas. This focus should not be seen to reflect on the tragedy and impact of the attack on

the Pentagon, the airliner crash in Pennsylvania, and the anthrax mailings.

Refer to: U.S. General Accounting Office, A Risk Assessment Approach Can Guide

Preparedness Efforts, testimony of Raymond J. Decker, GAO-02-208T (Washington: Oct.

31, 2001).

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Historically, federal disaster assistance policy is intended to facilitate the

rebuilding, recovery, and reoccupation of areas destroyed by hurricanes, floods,

earthquakes, fires, or other events that occur for relatively brief time periods and do

not generally recur.17 The destruction associated with terrorist attacks, however,

could span longer periods of time, result in the contamination of residential or

commercial neighborhoods with toxic or radiological substances, and require

considerable investments of federal and non-federal resources. The Administration’s

proposal for the establishment of a Department of Homeland Security addresses this

issue to some degree, as follows:

We cannot assume that we can prevent all acts of terror and therefore must also

prepare to minimize the damage and recover from attacks that do occur....The

consequences of a terrorist attack are wide-ranging and can include: loss of life

and health, destruction of families, fear and panic, loss of confidence in

government, destruction of property, and disruption of commerce and financial

markets. The Department would lead federal efforts to promote recovery from

terrorist attacks and natural disasters. The Department would maintain FEMA’s

procedures for aiding recovery from natural and terrorist disasters.18

The complex and problematic issue of whether federal consequence management

policy should provide for options other than rebuilding, recovery, and reoccupation

is not addressed in this report, but may be considered in an update.

General Observations

Some of the issues addressed in this report share certain features or reflect

common attributes. In addition to evaluating policy options on the specific issues,

Congress may decide to consider some broader policy concerns such as the

following.

Grants or Loans? Those affected by disasters (individuals, private business

operators, and public officials) primarily seek federal financial assistance through

grants-in-aid instead of loans. Many managers of businesses or government entities

facing revenue loss because of the attacks (or any disaster) may find it difficult to

repay a loan, regardless of the interest rate charged. For example, as reported months

after the attack in New York, one group of small business owners was bused to

Washington “to lobby members of Congress for immediate relief and tell them they

need grants, not loans, to survive.”19 Accordingly, an overarching concern applicable

to many of the issues addressed in this report may be whether the current balance

between grants and loans is appropriate. For example, in the section that discusses

local government revenue loss, the option of creating a new grant program is

One exception is the issue of repetitive loss due to flooding, as explored in: National

Wildlife Federation, Higher Ground (Washington: 1998). Some have advocated a reduction

or limitation in federal assistance for properties subject to frequent flooding.

U.S. President (Bush), The Department of Homeland Security (Washington: June 2002),

p. 11.

Terry Pristin, “Desperate Trip to Lobby for Grants, not Loans,” The New York Times, Nov.

4, 2001, p. B9.

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included as it represents a policy option previously adopted by Congress but modified

in 1974. Congress could decide to revisit its earlier decision to authorize loans and

not grants.

Non-Federal Resources. The resources, efforts, and authority of nonfederal entities has a bearing on federal policy. State laws (and, in some cases, local

ordinances), insurance policies provided through the private sector, voluntary

association resources, and individual assets have all been used or sought to help

communities recover from the September 11 attacks. This report does not provide

many details on the role of non-federal organizations and the assistance they provide.

Non-federal entities have a long tradition of being involved in response and recovery

activities after disasters, and the provision or dearth of federal assistance can have a

considerable impact on the role of such organizations as well as the efforts of

individuals and families.

Some information has previously been compiled on the combination of federal

and non-federal assistance provided after an attack or other catastrophe.20 State and

local governments have historically provided considerable financial assistance to

victims of disasters, a practice continued after the September attacks.21 Insurance

companies continue to assess the extent of damages and their costs, estimated by

some to exceed $40 to $70 billion.22 One estimate, prepared by the New York City

Partnership and considered by the General Accounting Office (GAO) to include the

“most comprehensive estimates,” found that total damages in New York City from

the attacks resulted in losses of approximately $83 billion, $67 billion of which

“would most likely be covered by insurance, federal payments, or increased

economic activity.”23

Voluntary associations have also provided assistance to individuals and to

families. For example, the Liberty Disaster Fund administered by the American Red

Cross has provided roughly $560 million to meet needs of victims.24 Other

organizations provided assistance as well. Some of the issues raised in this report

One such compilation is: U.S. Congress, Senate Bipartisan Task Force on Funding Disaster

Relief, Federal Disaster Assistance, S. Doc. 104-4, 104th Cong., 1st sess. (Washington: GPO,

1995).

For a discussion of non-federal funding for emergencies and the terrorist attacks see:

Intergovernmental Financing of Emergency Management, by Steven Maguire, at:

[http://www.congress.gov/brbk/html]/ebter212.html], visited April 17, 2002.

For a discussion of insurance coverage and policy issues see: Insurance Industry Response

to Terrorist Attacks, by Rawle King, at:

[http://www.congress.gov/brbk/html]/ebter139.html], visited April 17, 2002.

U.S. General Accounting Office, Review of Studies of the Economic Impact of the

September 11, 2001, Terrorist Attacks on the World Trade Center, GAO-02-700R

(Washington: May 29, 2002), p. 2.

For information see: “News Release: American Red Cross and Former Senate Majority

Leader George Mitchell Unveil Plan Providing $360 Million in Additional Assistance to

9/11 Families,” at: [http://www.redcross.org/press/disaster/ds_pr/020130libertyfund.html],

visited April 17, 2002.

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are, to some extent, addressed by non-federal entities or agreements, but this report

does not contain information on that assistance. In addition, an issue related to

assistance provided by voluntary and non-profit charitable organizations is not

addressed in this report—the effect of federal aid on the funding and operations of

such entities. Controversies associated with the distribution of funds received by

charities after September 11, discussions about the equity of financial assistance

awards, and the intent of federal law that prohibits duplication of assistance all have

a bearing on the respective roles of agencies in assisting victims and their families.

The Federal Role. The boundaries between federal and state responsibilities

might be examined in light of the attacks of September 11. One of the long-standing

principles of federal disaster assistance policies has been that federal aid should

supplement, not supplant, non-federal efforts. The record-level amounts of

assistance appropriated in P.L. 107-38 and P.L. 107-117, the assistance provided to

the airline industry in P.L. 107-42, the unemployment assistance extended in P.L.

107-147, and other actions taken by the 107th Congress and the Bush Administration

in the aftermath of the attacks might have established precedent for an expanded

federal role in consequence management after terrorist attacks. Some critics,

however, have argued that in certain areas the federal government has provided less

assistance, or insufficient aid, in comparison to that given after past disasters, leaving

the states to absorb the costs.

For some, an expanded federal role is justified because the attacks constituted

an act of war involving international terrorism. Accordingly, they contend, the federal

government has broad responsibility to provide assistance. The performance of

federal officials in processing and using intelligence data on potential threats, they

argue, led at least in part to the disaster. As reportedly asserted by one city

councilman in New York City, “It was the federal government that failed in its

responsibility to protect New York, and it’s the federal government that needs to pay

to make us whole.”25

The responsibility of the federal government is not easily settled. Precedent

arguably exists for the federal government to provide compensation for victims of

disasters caused, or aggravated by, federal officials. Congress has in the past

provided assistance, or authority to settle claims against the federal government, after

the culpability of the federal government in the consequence from certain disasters

was established, or action or inaction by federal employees exacerbated conditions.

Such disasters include the following:

! explosions and fire in Texas City, Texas, in 1947;26

! quality of federal inspections and design requirements that reportedly

contributed to the failure in Idaho of the Teton dam in 1976;27

Frank Lombardi, “Kelly Backed by Council in OT Aid Bid,” New York Daily News, March

19, 2002, p. 9.

P.L. [84]-378, 69 Stat. 707.

P.L. 94-355, 90 Stat. 889; P.L. 94-400, 90 Stat. 1211; P.L. 94-438, 90 Stat. 1415; P.L. 95(continued...)

CRS-11

! fires in Yellowstone National Park and National Forests “which were

originally classified as prescribed fires but subsequently became wildfires” in

1990;28 and,

! the spread of a fire in New Mexico in 2000.29

Some might argue that the federal government is responsible for stopping

terrorist attacks before they occur, and therefore should be held responsible for costs

incurred if such efforts fail. Others might contend that liability was established in

most of the above examples because the disasters were the direct result of federal

actions, not of federal failure to stop the actions of other parties.

Debate on the budget for FY2003 and on the role of the federal government in

consequence management will continue in the shadow of threats of other terrorist

attacks in the United States. Congress might elect to establish boundaries for the role

of the federal government, acting from one or more of several perspectives—for

example, financial concerns and limitations (the budget will set the “bottom line”),

the balance of powers between the federal and state governments envisioned by the

creators of our federalist system, the role of the private and voluntary sectors, or the

needs of victims and stricken communities on a case-by-case basis (each terrorist

attack is different).

With regard to the last perspective, Congress might elect to shape federal

consequence management policies on the premise that each attack creates unique

needs that require congressional consideration, debate, and action. (This perspective

was arguably adopted in the aftermath of the September attacks when Congress

enacted a series of statutes that addressed liability and economic assistance or civilian

protection issues.) If this perspective is taken by Congress following any future

terrorist attacks, precedents in the development of consequence management policies

will exist. Traditionally, the types and amounts of assistance provided after one

disaster have been sought after succeeding catastrophes. This is not a new

development. The impact of precedents for federal assistance has always been

present in congressional debate on disaster relief and the federal role in consequence

management. This role may be seen in questions raised nowadays by citizens and

Members of Congress ( “They received this aid after the hurricane last year, why

aren’t we receiving it this year?”) as well as in reports of discussions that took place

in Congress over 200 years ago:

Mr. W. Smith said he wished to lay a resolution on the table. It was well known

that the city of Savannah, in Georgia, had suffered in the most alarming manner,

by that greatest of all calamities, fire, so that four-fifths of the whole town was

(...continued)

629, 92 Stat. 3635. For background on the disaster see: U.S. Congress, Senate Committee

on Energy and Natural Resources, Subcommittee on Energy Research and Development,

Oversight—Teton Dam Disaster, hearings, 95th Cong., 1st sess., Jan. 24, Feb. 21, 1977

(Washington: GPO, 1977).

P.L. 101-302, 104 Stat. 230-231.

P.L. 106-246, 114 Stat. 583-590.

CRS-12

reduced to ashes. He was desirous that some relief should be afforded to the

unhappy sufferers from the Treasury of the United States....Mr. Cooper said, it

was a very unpleasant thing to come forward to oppose a measure of this sort;

but, when they looked into different parts of the Union, and saw the losses which

had been sustained at New York, Charleston, etc., it would appear only

reasonable that, if relief was afforded in one case, it ought to be extended to

another; and, if this resolution were agreed to, he should certainly move to have

some relief afforded to New York.30

Presidential Discretion. As is the case with many significant policy issues,

Congress, in addressing any of the consequence management issues reviewed in this

report, will, directly or indirectly, confront the boundaries of the extent to which the

President is granted discretion. The decision to issue a major disaster or emergency

declaration, the determination of eligibility, and the type and amount of assistance to

be provided may be rigidly established by Congress or left, to some degree, to the

President or executive branch officials.

The extent of discretion granted to the executive branch touches many of the

issues discussed in this report. As explained in some of these issue sections, some

news reports indicate that certain decisions made by FEMA, EPA, and other officials

after September 11 appeared arbitrary or inconsistent with federal policies. As a

result of these concerns, Congress might reevaluate the degree of discretion that is

appropriate. Some options Congress might choose to consider include:

! in lieu of a presidential major disaster declaration, declare by statute that

when terrorist attacks result in specified levels of damages, or when terrorists

use a specified means of attack (such as a radiological dispersion device), such

incidents constitute a major disaster;

! authorize certain agency heads to provide assistance to communities that

suffer losses involving a certain percentage of the tax base, particularly if

exposure to a chemical or biological weapon forces local government officials

to close off a business district for years;

! specify that interagency commissions be established, a certain number of

meetings occur, or existing plans be integrated to ensure that interagency

coordination and communication improves.

These and other options related to increasing response efficiency and effectiveness

may be raised in the debate over the proposal of the Bush Administration to establish

a Department of Homeland Security.

“Relief to Savannah,” The Debates and Proceedings in the Congress of the United States,

4th Cong., 2nd sess., vol. 6, Dec. 26, 1796, p. 1695, 1712. See also an account of a similar

debate that reportedly took place in 1827 that involved Representative Davy Crockett in:

Rep. Ron Paul, remarks in the House, Congressional Record, 98th Cong., 1st sess., vol. 129,

p. 4043-44.

CRS-13

Policy Options

This report makes no judgement on the need for any particular change. It

compiles information on difficulties, problems, or weaknesses cited in the media or

identified by governmental agencies. There is no question that much has been

accomplished with federal assistance in responding to the tragedies of September 11

and beginning the recovery process. It also is clear that some questions have been

raised that arguably bear further consideration.

One overriding question facing Congress is whether the range of existing federal

policies—many, but not all of which are discussed in this report—is appropriate for

consequence management purposes if a terrorist attack even more devastating than

that of September 11 were to occur. The Stafford Act, and other authorities that have

guided federal officials since September, have been used for years to manage the

consequences of hurricanes, floods, earthquakes, and some terrorist explosions.

However, scenario builders have, for years, posited that the release of a

chemical weapon, an outbreak of smallpox or other disease, or the explosion of a

nuclear device could wreak havoc and severely disrupt, if not destroy, urban centers.

To a certain extent, the horrifying events of September 11 are more similar to other

disasters in that they were caused by and associated with explosions. Chemical,

biological, radiological, and nuclear weapons, if used by terrorists, would pose

different and differently disruptive dangers. Congress might elect to evaluate the

need for alternative federal policies should future consequences of terrorist attacks

be more difficult to manage.

CRS-14

ADMINISTRATIVE ISSUES

Definition of “Major Disaster” and “Emergency”31

Issue Summary. The Robert T. Stafford Disaster Relief and Emergency

Assistance Act (the Stafford Act) authorizes the President to issue a “major disaster”

declaration only when catastrophes have occurred due to such natural events as

floods, hurricanes, and earthquakes or, “regardless of cause, any fire, flood, or

explosion.”32 The Act grants the President greater latitude to issue an “emergency”

declaration for “any occasion or instance” in which the President determines federal

aid is required.33

Certain terrorist actions could devastate communities, yet not result in a major

disaster declaration because the event causing the destruction does not meet the

statutory definition of “major disaster.” While such events might well lead to an

emergency declaration, the authorized assistance might not be sufficient to meet a

community’s needs. Congress might choose to consider legislation that would

initiate federal assistance after terrorist actions, regardless of the means of attack.

Issue Analysis. Presidential designation of a catastrophe as a “major

disaster” might be a critical factor in the restoration of a community’s economy after

a terrorist attack.34 Terrorist attacks that do not result in either a major disaster or an

emergency declaration might result in the departure of businesses and the

deterioration of services in a community, due to the inability of the state or local

government to facilitate full recovery.

A Stafford Act major disaster declaration makes available the full range of

federal disaster relief assistance to stricken counties and cities. Some types of

assistance available under a major disaster declaration include the repair,

replacement, or reconstruction of public and nonprofit facilities, cash grants for

personal needs of victims, temporary housing vouchers or replacement

accommodations, and unemployment assistance related to the disaster.35

Considerably less federal assistance is authorized under an emergency

declaration. The Stafford Act imposes a limit of $5 million in assistance for each

Written by Keith Bea, Government and Finance Division.

42 U.S.C. 5122(2)

42 U.S.C. 5122(1)

Research on economic assistance for recovery is available in a number of sources,

including: Richard Vogel, “The Impact of Natural Disaster on Urban Economic Structure,”

Review of Radical Political Economics, vol. 30, Summer 1998, pp. 114-22; Roger G. Noll,

“The Complex Politics of Catastrophe Economics,” Journal of Risk and Uncertainty, vol.

12, May 1996, pp. 141-46.

For more information on the assistance available under the Stafford Act see:

[http://www.fema.gov/r-n-r/], visited Feb. 14, 2002.

CRS-15

emergency declaration.36 The assistance authorized under an emergency declaration

— emergency response aid, debris removal, and financial assistance to households

and individuals — could leave some unmet needs in attacked communities.

Application to Terrorist Attacks. The individuals and communities

affected by the terrorist attacks of September 11 in New York City and Virginia have

been eligible to receive the full range of major disaster assistance authorized in the

Stafford Act, as well as that available under other authorities.37 In the future, other

states might not be eligible for such declarations because of the form of the attack.

Terrorists can strike by using technology or weapons of mass destruction (WMD)

that do not result in fires, floods, or explosions.38 The following examples of other

types of attacks probably would not fit the Stafford Act definition of causal events

for a major disaster declaration, but might lead to considerable loss of life or

community distress.39

! A cyber-attack on computer systems in a community could result in a shut-

down of utilities, the loss of millions of dollars due to lost wages, spoiled

food, and traffic jams, and possibly the loss of life if emergency response

personnel were unable to provide life saving services.40

! The contamination of a water system or supply of food with nuclear, chemical,

or biological agents might result in illness or death of consumers and

emergency and response personnel.41

42 U.S.C. 5193. However, the President may exceed this limitation and must then report

to Congress on the extenuating circumstances and the need for legislation on the matter.

The types of assistance provided after a disaster depend on the needs of stricken

communities. Brief information on other federal authorities is provided in: CRS Report

RS20739, Federal Disaster Relief Programs: Brief Summaries, by Keith Bea. More detail

is available in: U.S. Federal Emergency Management Agency, Disaster Assistance: A Guide

to Recovery Programs, FEMA 229(4) (Washington: 1995).

A WMD has been defined as “any weapon or device that is intended, or has the capability,

to cause death or serious bodily injury to a significant number of people through the release,

dissemination, or impact of (A) toxic or poisonous chemicals or their precursors; (B) a

disease organism; or (C) radiation or radioactivity.” See 50 U.S.C. 2302.

For information, including scenarios, on potential terrorist attacks that might not result in

a Stafford Act declaration, see: Harry C. Vantine, Ph.D., “Threats Posed by Nuclear Devices

and Radiological Dispersal Devices,” and “Statement of Dr. Steven E. Koonin on

Radiological Terrorism,” testimony before U.S. Congress, Senate Foreign Relations

Committee, 107th Cong. 2nd sess., March 6, 2002 [unpublished]. For a list of witnesses see:

[http://foreign.senate.gov/hearings/hrg020306a.html], visited June 5, 2002.

“Among the scenarios often talked about are terrorists sabotaging air traffic control

systems and thereby causing plane crashes; sabotaging electric power systems and thereby

causing power blackouts; penetrating government databases; or sending computer viruses

around that world that cause disruption or even collapse of international financial and

banking systems.” Jeffrey D. Simon, The Terrorist Trap (Bloomington, IN: Indiana

University Press, 2001), p. xxiii.

“Nuclear material of no real quality, even power plant waste, could be placed in a major

(continued...)

CRS-16

! A small arms attack not involving explosives could close down a metropolitan

area for days and disrupt commerce.42

! The dispersion (not through an explosion) of radioactive or other

contaminants might require the destruction and abandonment of certain

buildings in a neighborhood or possibly parts of, if not an entire, city.43

! Terrorists might create costly disruptions by dispersing hazardous substances

through use of a civilian aircraft or surface transportation vehicles.44

Background. Over the past five decades, Congress has revised the definition

of the term “major disaster” through amendments to the disaster relief authorities that

preceded the Stafford Act. Since 1974, the term “emergency” has been revised.

Table 1, below, summarizes the evolution of both of these terms.

(...continued)

air conditioning or water system. There are past cases of terror groups contemplating or

attempting such actions in the United States.” Christopher C. Harmon, Terrorism Today

(London, Frank Cass Publishers, 2000), p. 171.

“The most pressing current threat is that of the individual or small group with simple

automatic weapons [emphasis in original].” Terrorism Today, p. 160.

The Chemical and Biological National Security Program of the Department of Energy is

preparing a computer model to simulate “chemical and biological releases within the

complex urban environment.” See: [http://www.lanl.gov/orgs/d/d4/aquality/chbio.html],

visited May 30, 2002. See also: Bill Keller, “Nuclear Nightmares,” The New York Times

Magazine, May 26, 2002; Marvin J. Cetron with Owen Davies, “The Future Face of

Terrorism,” The Futurist, vol. 28, Nov.-Dec., 1994, pp. 10-15.

Such an attack, while fearsome to contemplate, poses considerable difficulties for the

perpetrators. As summarized by one group that analyzes homeland security issues: “It is

unlikely that a terrorist group could, on its own, construct a nuclear weapon. However,

terrorist groups might try to steal or buy nuclear weapons or nuclear material from nations

where weapons and materials are available to such groups or poorly guarded. Although an

RDD [radiological dispersion device] would not likely cause a high number of casualties,

it would likely cause economic damage, necessitate the destruction of some contaminated

structures, and spread psychological fear. To counter the threat, the US has installed nuclear

sensors at ports and other sensitive areas, and is part of a global effort to create systems to

better track radioactive materials.” See: “Padilla Wanted to Build a Nuclear Bomb,”

Homeland Security Monitor, an email subscription service of Intellibridge, June 17, 2002.

“The fatalities from a successful biological agents attack—release of anthrax spores over

populated areas either from a low-flying airplane or a spray can, dissemination of various

agents into food supplies, release of botulinal toxin—could be tenfold what we have seen

in <conventional’ terrorism.” The Terrorist Trap, p. 359.

CRS-17

Table 1. Statutory Definitions of “Major Disaster”

and Emergency

Title of statute/P.L.

Major disaster definition

Emergency definition

“To make surplus property

available for the

alleviation of damage

caused by flood or other

catastrophe,” (1947) [P.L.

80-233]

Not defined, but see note a

Not applicable

“To authorize federal

assistance to states and

local governments in

major disasters, and for

other purposes,” (1950)

[P.L. 81-875]

“Major disaster” means

any flood, drought, fire,

hurricane, earthquake,

storm, or other catastrophe

... 64 Stat. 1109

Not applicable

“Disaster Relief Act of

1966,” P.L. 89-796

“The term <major disaster’

means a major disaster as

determined by the

President pursuant

to...[P.L. 81-875]. 80 Stat.

1316

Not applicable

“Disaster Relief Act of

1969,” P.L. 91-79

“The term <major disaster’

means a major disaster as

determined by the

President pursuant

to...[P.L. 81-875]. 83 Stat.

130

Not applicable

“Disaster Relief Act of

1970,” P.L. 91-606

“Major disaster” means

any hurricane, tornado,

storm, flood, high water,

wind-driven water, tidal

wave, earthquake, drought,

fire, or other catastrophe

.... 84 Stat. 1745

Not applicable

“Disaster Relief Act of

1974,” P.L. 93-288

see note b

“Major disaster” means

any hurricane, tornado,

storm, flood, high water,

wind-driven water, tidal

wave, tsunami,

earthquake, volcanic

eruption, landslide,

mudslide, snowstorm,

drought, fire, explosion, or

other catastrophe ... 88

Stat. 144

“Emergency” means any

hurricane, tornado, storm,

flood, high water, winddriven water, tidal wave,

tsunami, earthquake,

volcanic eruption,

landslide, mudslide,

snowstorm, drought, fire,

explosion, or other

catastrophe .... 88 Stat.

144

CRS-18

Title of statute/P.L.

Major disaster definition

Emergency definition

“The Disaster Relief and

Emergency Assistance

Amendments of 1988,”

P.L. 100-707

“Major disaster” means

any natural catastrophe

(including any hurricane,

tornado, storm, high water,

winddriven water, tidal

wave, tsunami,

earthquake, volcanic

eruption, landslide,

mudslide, snowstorm, or

drought), or, regardless of

cause, any fire, flood, or

explosion .... 102 Stat.

4690

“Emergency” means any

occasion or instance for

which, in the

determination of the

President, federal

assistance is needed to

supplement state and local

efforts .... 102 Stat. 4689

The 1947 legislation that authorized the President to exercise discretion in determining when federal

disaster assistance would be needed did not use the term “major disaster.” The relevant provision

read: “That, notwithstanding any other provisions of law, the War Assets Administration shall,

whenever the President shall determine it to be necessary or appropriate because of flood or other

catastrophe, transfer, without reimbursement ... such articles of personal property ... which ... can be

utilized in alleviating ...” 61 Stat. 422

The types of catastrophes listed in both definitions in the 1974 Act were identical. The difference

rested in the authority of the President to determine whether the event caused “damage of sufficient

severity and magnitude to warrant major disaster assistance under this Act, above and beyond

emergency services by the federal government ... for a major disaster...” or whether it required “federal

emergency assistance to supplement state and local efforts ... for an emergency declaration.”

Congress might choose to continue to debate or revise the definition of these

terms in the context of questions such as the following:

! Should a distinction be drawn between “disasters” and national security events

such as terrorist attacks, which may be considered acts of war?

! Should “natural” disasters be the main triggers for a Stafford Act declaration?

If not, what are the limits to a President’s discretion to issue such a

declaration?

! Should widespread diseases, economic disruptions (regardless of cause),

utility outages, bombings, or arson be eligible for assistance under the Stafford

Act?

Questions similar to these have been raised before. In the past, often after

particularly significant disasters have occurred or plans and studies have been

released, Congress has debated options that either specify the types of events that

might trigger Stafford Act assistance or that grant discretion to the President.45 Most

Information on the linkages among emergency management policy developments and

events, organizational changes, technological disasters, reports, and other elements are

presented in two time lines: Disaster Time Line: Selected Milestone Events & U.S.

(continued...)

CRS-19

of the declared disasters to date have been classified as natural, not technological or

“man-made” disasters.46

There have been occasions in the past when Members of Congress have

questioned presidential disaster declaration decisions. In 1980, for example,

President Carter used the emergency authority enacted in the Disaster Relief Act of

1974 to help South Florida cope with the influx of Cuban migrants from the Mariel

boat lift. In disagreement, the Senate considered legislation (S. 3027, 96th Congress)

to insert the words “physical or natural” in the definitions of “major disaster” and

“emergency.” The report accompanying the legislation included the following

summary of the issue:

From discussion between Administration officials and Committee members it

became clear that a tendency was developing within the Administration to

consider, almost exclusively, effects of circumstances in determining the

appropriateness of federal response under the Act, rather than weighing as well

the nature of the circumstances which led to the disruption. On May 6, 1980, the

President declared an emergency for the state of Florida, using the authority of

the Act. All appreciated the severe impact the extraordinary numbers of refugees

had upon that state and upon the local municipalities of south Florida. Clearly,

the burdens surpassed their capabilities, requiring some form of federal

assistance in response to a national problem. However, Congress has historically

intended the Disaster Relief Act to provide an extensive but fixed range of

responses to particular kinds of events spelled out in the definitions provisions

of the Act.47

President Carter noted in a media interview that he “probably stretched the law

a little bit in allotting emergency funds...to alleviate the problem financially in Dade

County and other affected areas.”48

In an attempt to resolve this difference over statutory intent, the Senate approved

S. 3027, which redefined the terms “major disaster” and “emergency” to include the

words “other physical or natural catastrophe.” During debate on the Senate floor one

Senator expressed agreement with the new language while addressing the issue of the

(...continued)

Outcomes and Terrorism Time Line: Selected Milestone Events & U.S. Outcomes, at:

[http://www.disaster-timeline.com/http://www.disaster-timeline.com/], visited June 10,

2002.

A presentation of the distribution of declared disasters from 1965 to 1998 throughout the

United States is available. The graph does not include raw data on the number of disasters

within specified categories, but the great majority of disasters are attributable to “natural”

events (in rank order) such as floods, severe storms, tornadoes and floods, and hurricanes.

See: [http://www.bakerprojects.com/fema/mapmain.htm], visited March 27, 2002.

U.S. Congress, Senate Committee on Environment and Public Works, Disaster Relief Act

Amendments of 1980, report to accompany S. 3027, 96th Cong., 2nd sess., S. Rept. 96-891

(Washington: GPO, 1980), pp. 1-2.

U.S. President (Carter), “Interview with a Correspondent from the Florida News Network,”

Public Papers of the Presidents of the United States, Jimmy Carter, 1980-81, book III, Oct.

10, 1980, p. 2155.

CRS-20

scope of the Act, and questioned whether “the Disaster Relief Act [is] the appropriate

legislative vehicle to provide financial remedies” for costs associated with hazardous

waste dumps?49 The Senator did not receive an answer during the debate in the

Senate, and the House did not act on the legislation.

In Congress, the debate over the definition section of the 1974 Act continued.

In 1981, Senators considered the issue on at least two occasions, neither of which

involved legislation to amend the Disaster Relief Act. One instance involved debate

on reauthorization of a defense procurement statute and a proposed amendment

concerning the use of civil defense funds to prepare for disasters as well as enemy

attack, a concept referred to as “dual-use.”50 During discussion on the floor of the

Senate of an amendment to the Civil Defense Act of 1950, one Senator addressed a

dual-use proposal that would “allow states to expend those funds for certain disaster

assistance as well as civil defense purposes.”51 The amendment to the Civil Defense

Act incorporated the term “natural disaster” and, for the purpose of the Civil Defense

Act, defined it to include explosions, civil disturbances, or “any other manmade

catastrophe.”52 The Senator acknowledged that the dual-use provision “may have

much to commend it,” but noted concerns and questions such as the application of

standards in determining which events qualify as major disasters, confusion or

uncertainty over the use of similar terms, and the discretion granted the President, as

follows:

Would the President interpret this language to mean that Congress now intended

to broaden the basic law so that he could declare a major disaster for a civilian

riot or for a collision between two jumbo jets killing hundreds of people?53

Congress approved the dual-use provision and incorporated it into the Civil Defense

Act.54

The second instance in which the issue was raised in 1981 was during Senate

consideration of the nomination of a FEMA official to be an associate director. One

Senator expressed concern about the nominee’s perception that the disaster relief

statute did “not appear to be limited to natural or physical occurrences.”55 Despite

Statement of Sen. Edward Zorinsky, “Disaster Relief Act Amendments of 1980,”

Congressional Record, vol. 126, Sept. 26, 1980, p. 27663.

The first congressional action on the dual use issue included a statement of congressional

policy recognizing that civil defense funds could be used for disaster preparedness “without

adversely affecting” civil defense objectives. 90 Stat. 931-32.

S. 815, 97th Congress. See: Sen. Robert Stafford, “Department of Defense Authorizations,

1982—Conference Report,” Congressional Record, vol. 127, Nov. 5, 1981, pp. 26841-42.

P.L. 97-86, 95 Stat. 1112, 50 App. 2252(b).

Sen. Robert Stafford, “Department of Defense Authorizations, 1982—Conference

Report,” p. 26842.

Sec. 803, P.L. 97-86, 95 Stat 1099 et seq.

Sen. Frank Murkowski, “Federal Emergency Management Agency,” Congressional

Record, vol. 127, Oct. 6, 1981, p. 23293.

CRS-21

this objection to the nominee’s position (but apparently not to the nominee himself)

the nominee was confirmed.

Two years after President Carter’s decision on the Mariel boat lift, the debate

apparently continued in the new Administration. An opinion issued by the

Department of Justice during the Administration of President Ronald Reagan

concluded that little stretching, if any, occurred. In a memorandum issued for thenAssociate Attorney General Rudolph Giuliani, the Justice Department concluded that

the 1974 statute “covers emergencies arising from both man-made and natural

disasters” and set out “touchstones” of an emergency as:

We believe that the Act was meant to encompass catastrophic events—either

impending or actual—that threaten property and the lives of people. In the

absence of specific facts, we are unable to say with certainty whether a particular

“immigration emergency” would constitute such a catastrophic event. Similarly,

we are unable to say that the Act could never apply....We have not found

anything, either in the Act, its legislative history or administrative practice under

it, that would disqualify an emergency or major disaster merely because it

involved a massive influx of aliens into the country...Not every immigration

emergency will necessarily be an emergency or major disaster under the

Act—the President must make separate determinations for each. We do not

believe, however, that there is anything in the Act to preclude him from using the

Act if he did determine that the requisite need and suffering existed.56

The Department of Justice memorandum also noted that, despite its view of the

authority, a lack of unanimity existed within the Reagan Administration. “FEMA has

taken the position that use of the Act for an immigration emergency is

inappropriate...”57

The definition issue subsequently remained dormant for over a decade. In 1994,

with little debate or contention, the issue was addressed to a limited degree when the

Civil Defense Act of 1950 was amended and incorporated as Title VI of the Stafford

Act. Title VI, as amended, includes in the definition of “hazard” the term “natural

disaster” as well as “an accidental or man-caused event.”58 This amendment has no

bearing on the definition of a “major disaster,” however, as the definitions for Title

VI apply only to preparedness assistance authority and not to the federal disaster

assistance provisions in Titles IV and V of the Stafford Act.

Policy Options. Congress might choose to renew debate over the specificity

of definitions in the Stafford Act for a “major disaster” or “emergency.” A range of

policy options might be considered regarding the specification of the types of events

that lead to the commitment of federal resources after a terrorist attack.

Larry L. Simms, Office of Legal Counsel, Memorandum for Rudolph W. Giuliani,

Associate Attorney General, U.S. Department of Justice (Washington: Nov. 19, 1982), p.

2, 13-14.

Ibid, p. 9.

42 U.S.C. 5195a.

CRS-22

Maintain the Status Quo. Congress could elect to retain the existing

Stafford Act provisions. Should a terrorist attack occur that cannot be addressed

under the Stafford Act’s definition of “major disaster,” other authorities in addition

to the Stafford Act could be considered to be sufficient. For one, the National

Emergencies Act authorizes the President to declare a “national emergency” (a

condition the President determines to exist) and to call into operational status standby

provisions of statutory law, based on the needs of the situation, giving the President

special powers to meet the needs of the emergency.59 When declaring a national

emergency, the President specifies which provisions of the standby canon he is

activating. Using a proclamation or an executive order, the declarations are

published in the Federal Register. The President must maintain files and an index of

such executive orders and proclamations, and must transmit reports to Congress on

expenditures incurred as a result of the exercise of this authority.60 By joint

resolution, Congress may terminate a declaration of national emergency.61

Following the September 11 terrorist attacks, President George W. Bush used

the authority under the National Emergencies Act to meet certain needs. The

President issued two national emergency declarations, the first, issued September 14,

2001,62 called armed forces reserves into active duty and invoked authorities

concerning the retention and assignment of military personnel. The second, issued

September 23, 2001,63 invoked the International Emergency Economic Powers Act

mandating the freezing of certain foreign assets in American financial institutions.

In addition to the National Emergencies and Stafford Acts, the President has

authority to respond to a release of hazardous substances under the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA) of 1980.64

Through the process set out in the National Oil and Hazardous Substances Pollution

Contingency Plan (“National Contingency Plan,” or NCP), federal response efforts

could be activated should a terrorist attack result in the discharge of “hazardous

substances, pollutants, and contaminants.” CERCLA authorizes the President to use

the NCP for remedial action “or take any other response measure consistent with the

national contingency plan which the President deems necessary to protect the public

health or welfare or the environment.”65

50 U.S.C. 1621. Harold Relyea of the Government and Finance Division contributed the

discussion of the National Emergencies Act.

50 U.S.C. 1641

50 U.S.C. 1622

U.S. President (George W. Bush), “Declaration of National Emergency by Reason of

Certain Terrorist Attacks,” Proclamation 7463, Federal Register, vol. 66, Sept. 14, 2001,

p. 48199.

U.S. President (George W. Bush), “Blocking Property and Prohibiting Transactions with

Persons Who Commit, Threaten to Commit, or Support Terrorism,” E.O. 13224, Federal

42 U.S.C. 9601 et seq. CERCLA is discussed in the section “Environmental Hazard

Assessment and Communication” in this report.

“Any person in charge of a vessel or an offshore or an onshore facility shall, as soon as he

(continued...)

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Pro. Advocates of maintaining the status quo might contend that sufficient

authority exists to initiate federal assistance under the range of authorities set out in

the Stafford Act, the National Emergencies Act, CERCLA, and, to a limited extent,

other statutes such as the Small Business Administration (SBA) disaster loan

legislation.66 It might be argued that, in light of the definitions and the discretion

granted under these authorities, the President and specified executive officials could

direct federal assistance to communities affected by terrorist attacks without

additional legislative action (other than appropriations).

Con. Some may argue that, while the definitions in existing policies provide

authority for presidential action, the President needs clearer statutory authority to

respond to terrorist actions in order to direct specific types of assistance to victims

and to manage the crisis. In addition to directing the war effort and meeting other

urgent needs, it might be argued that potential legal challenges to executive branch

decisions regarding consequence management should be minimized or prevented.

From this perspective, congressional action on new legislation could enable

executive branch officials to develop implementation plans and procedures well in

advance of an attack. Some might consider the authority granted the President or

executive branch officials under existing statutes to be too limited to provide the

necessary assistance that could be required.

Increase Discretion of the President. The definition of “major disaster”

in the Stafford Act could be amended to expand the language pertaining to nonnatural disasters (“regardless of cause, any fire, flood or explosion”) to other events.

This could be accomplished, for example, by returning to the definition enacted in

1974 (see Table 1) and reinserting the phrase “or other catastrophe.” Also, the statute

could be amended to apply the definition of “hazard” in Title VI of the Stafford Act

to Titles IV and V (major disaster and emergency assistance, respectively).67 Another

option would be to specify the types of terrorist attacks likely to have a devastating

effect on a community (such as the use of a chemical, biological, radiological, or

nuclear (CBRN) weapon that presents a continued health hazard to residents) as

opposed to those with a more limited impact, such as a personal attack by one

terrorist, or a few, armed with guns or conventional explosives.

Pro. Advocates of this option might contend that the current definition overly

restricts the President’s ability to initiate federal assistance to communities affected

by terrorist strikes, regardless of cause. In this view, broader language might be

needed to give the President authority to take action, particularly in view of the many

forms another terrorist attack could take.

(...continued)

has knowledge of any release (other than a federally permitted release) of a hazardous

substance ... immediately notify the National Response Center established under the Clean

Water Act of such release.” 42 U.S.C. 9603. Regulations for the NCP are set out in: 40

CFR Part 300.

15 U.S.C. 636. The SBA authority is discussed in the section “Small Business Assistance”

in this report.

42 U.S.C. 5195a. “The term <hazard’ means an emergency or disaster resulting from—(A)

a natural disaster; or (B) an accidental or man-caused event.”

CRS-24

Con. Those opposed to broadening the definitions used in the Stafford Act

might argue that the original intent of the Stafford Act is to address needs that arise

from catastrophic disasters of natural origin, or from events that resemble such

disasters. A series of terrorist attacks, all of which resulted in declarations, they may

argue, could represent a different type of disaster, which raises policy questions such

as: (1) Should limited federal resources be “promised” when consequence

management could lead to a significant financial drain on federal fiscal and personnel

resources? (2) Should federal resources be committed to rebuild an area

contaminated by nuclear fallout or other hazards?

Expand the Role of Congress. Prior to 1950, Congress authorized the

provision of all federal disaster assistance through special legislation enacted after

specific catastrophes. Congress could consider using its legislative authority to, in

effect, declare that federal assistance is to be provided to communities after a terrorist

attack if the definitions in the Stafford Act prove too restrictive. To a limited extent,

Congress has exercised such authority through supplemental appropriations that have

targeted federal assistance to certain disaster-stricken areas, sometimes to supplement

existing authority. Some examples of such action focused on the oil spill from the

tanker Exxon-Valdez,68 flood damage at Camp Pendleton, California,69 needs arising

from disasters in Nebraska and Kansas,70 the costs associated with the crash of TWA

Flight 800 off Long Island, New York,71 and damages caused by ice storms in

Arkansas and Oklahoma.72

Another option would be to increase Congress’s oversight role regarding the

authority of the President to issue a declaration. One way of facilitating such a

review would be to increase reporting requirements for the President. For example,

the Disaster Mitigation Act (DMA) of 2000 included a requirement that the President

notify Congress of any public assistance grant exceeding $20 million for the repair,

restoration, reconstruction, or replacement of public or certain non-profit facilities

damaged or destroyed by a declared major disaster.73 Through an amendment to the

Stafford Act, a similar reporting requirement could require the President to notify

Congress when he has reason to consider issuing a major disaster declaration after

any suspected terrorist attack. Once such notification is received, Congress might

elect to examine the circumstances surrounding the President’s decision to declare,

or not to declare, a major disaster, and then possibly take legislative action.

Pro. Members of Congress concerned with the discretionary authority of the

President to decide when federal disaster assistance is to be provided might support

legislative options that place reporting requirements on the executive branch and

P.L. 101-45, 103 Stat. 102.

P.L. 103-50, 107 Stat. 255.

P.L. 101-302, 104 Stat. 243.

P.L. 105-18, 111 Stat. 193, P.L. 106-31, 113 Stat. 96.

P.L. 107-38, 115 Stat. 177.

42 U.S.C. 5172(a)(4), 114 Stat. 1562

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facilitate congressional review. Congress could then fully debate and possibly

modify declaration decisions made by the President.

Con. Congress enacted the disaster assistance statute in 1950 to give

declaration authority to the President because it did not wish to delay the provision

of federal disaster assistance due to the press of other congressional matters. It may

be argued that congressional involvement in the declaration process could lead to

inefficiencies and cumbersome communications and decision-making processes.

Enact New Authority. A new statute could be enacted to authorize the

President to determine when federal assistance would be provided after any incident

attributed to or caused by terrorists. Such new authority could offer broader or

different categories of assistance for the response to terrorist attacks, including

military or medical assistance not necessarily available after “conventional” disasters.

Under such authority, other types of federal assistance could be reconsidered. For

example, the mitigation (loss reduction) initiatives in the Stafford Act might be

reconsidered to authorize the President to fund prevention and security improvement

measures.

The Administration’s proposal to establish a Department of Homeland Security

might arguably be one legislative vehicle for such authority. Of particular note, the

Administration proposes that the department, when established, “consolidate existing

federal government emergency response plans ... into one genuinely all-hazard

plan.”74 Through enactment of this authority Congress might direct the type of

assistance to be provided after any attack, the planning mechanism to be followed,

and the agency or office responsible for administering the federal effort, regardless

of the means used by terrorists. Congress is considering legislation (S. 2452/H.R.

4660, inter alia) to establish the department.

Pro. Proponents might argue that enactment of new authority specifically

oriented toward the prevention and response to terrorist attacks would enable

Congress to tailor assistance to meet the unique needs presented by such threats. For

example, the pre-disaster mitigation grant authority approved in the DMA of 2000

specifies that funds “may be used ... to support effective public-private natural

disaster hazard mitigation partnerships.”75 Proponents of change might seek to

remove the restrictions on “natural disaster.” Coordination problems experienced by

FEMA, as an independent agency, might be resolved if a Cabinet department

manages the federal response. Different statutory provisions might be required to

help communities mitigate against and recover from terrorist attacks and to involve

a range of partnerships, including private, interstate, and possibly international

efforts.

Con. Opponents of such new authority might argue that the current range of

authorities, notably the Stafford Act and the National Emergencies Act, make such

a provision unnecessary and could be redundant of existing authority. Also, they

might contend that all disasters, regardless of cause, require similar types of response,

The Department of Homeland Security, p. 12.

42 U.S.C. 5133, 114 Stat. 1554.

CRS-26

recovery, and mitigation assistance. The legislation under consideration to establish

the Department of Homeland Security should, they might argue, concentrate solely

on organizational and administrative matters, and not include policy revisions.

Opponents might also voice concern that federal costs could increase dramatically

with enactment of new authority.

Expand Authority to Declare an Emergency. Congress might provide

limited authority to an administration official, such as the director of FEMA or OHS,

to issue an emergency (or other) declaration. Precedents for such authority exist. For

years the Administrator of the Small Business Administration (SBA) and the

Secretary of the Department of Agriculture have issued disaster declarations pertinent

to his or her agency’s mission. More recently, Congress has authorized the Secretary

of the Army to determine that a Stafford Act emergency exists “with respect to the

emergency need” for an outlet from Devils Lake, North Dakota, should water levels

rise.76

Pro. Advocates of this option might argue that an agency head familiar with the

specific nature of a terrorist incident might be able to narrowly establish the

boundaries of federal assistance to ensure the efficient use of federal resources under

specified circumstances.

Con. Opponents might argue that only the President, or very few agency heads,

should be authorized to exercise such discretionary authority. Also, they might

contend that the extension of such authority to non-elected officials is inappropriate,

and that federal costs could increase.

U.S. Congress, Conference Committees, 2000, Making Appropriations for Energy and

Water Development for the Fiscal Year Ending September 30, 2001, and for Other

Purposes, conference report to accompany H.R. 4733, H. Rept. 106-907, 106th Cong. 2nd

sess. (Washington: GPO, 2000), p. 4.

CRS-27

Eligibility for Stafford Act Assistance77

Issue Summary. After a major disaster declaration is issued, private not-forprofit organizations may be eligible for Stafford Act grants to reconstruct and repair

their damaged facilities that provide such public services as education, medical care,

utilities, rehabilitation services, and custodial care. Private, for-profit enterprises

may be eligible for disaster assistance loans from the SBA or the Department of

Agriculture; however, they are not eligible for Stafford Act grants.

Some contend that private for-profit enterprises that provide necessary services

to the public should be eligible for Stafford Act grants. They argue that disasters that

overwhelm the resources of state and local governments and not-for-profit

organizations can also overwhelm the resources and insurance coverage of for-profit

enterprises. The issue is whether Congress should extend Stafford Act grants to

certain for-profit enterprises, notably those involved in the maintenance of the

nation’s critical infrastructure.

Issue Analysis. The types and amount of federal disaster assistance have

increased significantly since 1950 when the 81st Congress authorized the President

to direct federal agencies to provide aid to state and local governments.78 By

comparison, the categories of applicants eligible for federal assistance have remained

relatively constant. State and local governments, individuals, and families have

historically been the primary beneficiaries of federal disaster assistance grants, while

private property owners have primarily relied on loans and subsidized insurance.

Application to Terrorist Attacks. The terrorist attacks of September 11

in New York City disrupted services provided by utilities, transportation,

communication, educational, and medical care facilities. Utility facilities and

infrastructure elements were destroyed, alternative instructional arrangements had to

be made for students, and medical facilities lost considerable revenue as they shifted

resources.79 As a result, some institutions ineligible for Stafford Act grants face

considerable financial hardships.

In an effort to help those organizations, the supplemental appropriations request

for fiscal year 2002 submitted by the Bush Administration to Congress requested

$750 million for the Community Development Block Grant (CDBG) program

Written by Keith Bea, Government and Finance Division.

P.L. [81-]875, 64 Stat. 1109. The 1950 Act also authorized that federal disaster assistance

be provided to individuals through the distribution of consumable supplies through the

American National Red Cross and by “performing on public or private lands protective and

other work essential for the preservation of life and property.” 64 Stat. 1110. For a

summary of the expansion of federal assistance see: Rutherford H. Platt, “Shouldering the

Burden: Federal Assumption of Disaster Costs,” in his Disasters and Democracy

(Washington: Island Press, 1999), pp. 11-46.

For a description of such losses see: Greg Gittrich, “Telecommunications, Electricity

Companies Face Daunting Task at Ground Zero,” New York Daily News, Dec. 11, 2001, p.

42; Jayson Blair, “In an Urban Underbelly, Hidden Views of Terror’s Toll,” The New York

Times, Oct. 14, 2001, p. A32.

CRS-28

administered by the Department of Housing and Urban Development (HUD). In the

request the Administration noted that CDBG funds:

may be used for assistance for properties and businesses (including the

restoration of utility infrastructure) damaged by, and for economic revitalization

directly related to, the terrorist attacks on the United States that occurred on

September 11, 2001 in New York City and for reimbursement to the state and

City of New York for expenditures incurred from the regular Community

Development Block Grant formula allocation used to achieve these same

purposes...80

Both the House and Senate have agreed with this request, as reflected in committee

reports81 and the text of the engrossed House provision, as follows:

For an additional amount for <Community Development Fund,’ as authorized by

title I of the Housing and Community Development Act of 1974, as amended, for

emergency expenses to respond to the September 11, 2001, terrorist attacks on

the United States, $750,000,000, to remain available until expended: Provided,

That the State of New York, in cooperation with the City of New York, shall,

through the Lower Manhattan Development Corporation, distribute these funds:

Provided further, That such funds may be used for assistance for properties and

businesses (including the restoration of utility infrastructure) damaged by, and

for economic revitalization directly related to, the terrorist attacks on the United

States that occurred on September 11, 2001, in New York City and for

reimbursement to the State and City of New York for expenditures incurred from

the regular Community Development Block Grant formula allocation used to

achieve these same purposes: Provided further, That the State of New York is

authorized to provide such assistance to the City of New York: Provided further,

That in administering these funds and funds under section 108 of such Act used

for economic revitalization activities in New York City, the Secretary may waive,

or specify alternative requirements for, any provision of any statute or regulation

that the Secretary administers in connection with the obligation by the Secretary

or the use by the recipient of these funds or guarantees (except for requirements

related to fair housing, nondiscrimination, labor standards, and the environment),

upon a finding that such waiver is required to facilitate the use of such funds or

guarantees: Provided further, That such funds shall not adversely affect the

amount of any formula assistance received by the State of New York, New York

City, or any categorical application for other Federal assistance: Provided

further, That the Secretary shall publish in the Federal Register any waiver of any

U.S. President (Bush), Emergency Funding Request Submission to Congress for FY2002,

p. 48, at: [http://w3.access.gpo.gov/usbudget/fy2003/pdf/5usattack.pdf], visited May 3,

2002.

U.S. Congress, House Committee on Appropriations, Making Supplemental

Appropriations for Further Recovery From and Response to Terrorist Attacks on the United

States for the Fiscal Year Ending September 30, 2002, and for Other Purposes, report to

accompany H.R. 4775, 107th Cong., 2nd sess., H. Rept. 107-480 (Washington: GPO, 2002),

p. 54; U.S. Congress, Senate Committee on Appropriations, Making Supplemental

Appropriations for Further Recovery From and Response to Terrorist Attacks on the United

States for the Fiscal Year Ending September 30, 2002, and for Other Purposes, report to

accompany S. 2551, 107th Cong., 2nd sess., S. Rept. 107-156 (Washington: GPO, 2002), p.

99.

CRS-29

statute or regulation that the Secretary administers pursuant to title I of the

Housing and Community Development Act of 1974, as amended, no later than

five days before the effective date of such waiver: Provided further, That the

Secretary shall notify the Committees on Appropriations on the proposed

allocation of any funds and any related waivers pursuant to this section no later

than five days before such allocation.82

Some of the most heavily affected entities included Consolidated Edison (Con

Ed) and Verizon, the telecommunications corporation. The reported financial

distress of Con Ed and Verizon reportedly stems, at least in part, from deficient

insurance coverage. One news account reported that Con Ed had insured two

destroyed substations for $70 million, requiring “an estimated $340 million in

additional costs. Verizon has estimated that its insurance will cover $1 billion in

damage, leaving $380 million in additional costs.”83

In addition to restoring lost facilities, the funding deficiency may be attributed

to the increased costs associated with improving the utility infrastructure after the

disaster. For example, one report stated that Con Ed “is now digging nearly seven

miles of trenches through the financial district to create a permanent grid, which it

expects to have operating by May. The substations were insured for about $70

million; Con Ed estimates that the work will cost a total of about $400 million.”84

Federal assistance was requested, according to news reports, to forestall adverse

economic consequences, including increases in rates associated with reconstruction.

In addition to the utilities, for-profit educational and medical facilities suffered

losses. Some of the costs incurred by educational institutions apparently were

associated with the placement of students in alternative educational settings.85

Medical facilities lost an estimated $340 million as they shifted resources to meet the

needs of the disaster victims, clean up airborne particles from building interiors, and

address other needs.86

Background. For decades Congress has authorized federal assistance to

rebuild or repair facilities owned by organizations that provide public services. The

1950 statute authorized “emergency repairs to and temporary replacements of public

H.R. 4775, 107th Congress.

Jayson Blair, “Con Ed Asks Permission to Hold Rebates,” New York Times, March 20,

2002, p. A24.

Neela Banerjee, “In Tumultuous Year, Con Ed Basks in Its Quiet Success,” New York

Times, Dec. 26, 2001, p. C1.

Fred Bruning, “Enduring Agony,” Newsday, March 10, 2002, p. A07. Joyce Purnick, “In

Schools, a Hidden Toll of Sept. 1,” Associated Press, May 13, 2002; Ellen Yan, “FEMA

Agrees to Aid NYU,” Newsday, May 16, 2002, p. A28.

Judith Messina, “Hospitals’ Chronic Pain Gets Worse; Surgery Cancellations, Unforeseen

Expenses from WTC Disaster Create Revenue Drain,” Crain’s New York Business, Oct. 15,

2001, p. 50; Margaret Ramirez, “Report: Cost to Hospitals $340M,” Newsday, Oct. 5, 2001,

p. A07; Greater New York Hospital Association, “The Fiscal Impact of the World Trade

Center Attack on New York Hospitals,” at: [http://www.gnyha.org], visited May 17, 2002.

CRS-30

facilities of local governments.”87 Since then Congress has enacted provisions that

have expanded the eligibility of organizations for such assistance, adhering to the

general principle that public entities are eligible for grants while corporations are

eligible for loans.88 For example:

! The Disaster Relief Act of 1966 authorized grants to repair or reconstruct “any

project of a state, county, municipal, or other local government agency for

flood control, navigation, irrigation, reclamation, public power, sewage

treatment, water treatment, watershed development, or airport construction”

damaged or destroyed.89 The Act also authorized the Secretary of Agriculture

to assist nongovernmental entities, specifically to: “make or insure loans to

associations, including corporations not operated for profit and public and

quasi-public agencies, for the acquisition, construction, improvement,

replacement, or extension of waste disposal systems and other public facilities

damaged or destroyed as a result of a major disaster...”90

The Disaster Relief Act of 1970 created new authority that authorized the

President to direct federal agencies to provide assistance by “making repairs

to, restoring to service, or replacing public facilities (including street, road,

and highway facilities) of state and local governments ...”91 This statute was

amended in 1971 to authorize grants to be made for the repair or

reconstruction of “any medical care facility which is owned by an organization

exempt from taxation ... which is damaged or destroyed by a major disaster.”92

! The Disaster Relief Act of 1974 superseded the provisions of the 1970 Act

and expanded the definition of “local government” (and therefore eligibility

for public facility repair grants) to include “any Indian tribe or authorized

tribal organization, or Alaska Native village or organization.”93

! The 1988 amendments authorized aid to private nonprofit “educational, utility,

emergency, medical, rehabilitational, and temporary or permanent custodial

care facilities (including those for the aged and disabled), other private

nonprofit facilities which provide essential services of a governmental nature

to the general public, and facilities on Indian reservations as defined by the

President.”94

Sec. 3, P.L. [81-]875, 64 Stat. 1110.

An exception to that general principle was made in the 1971 amendment to the Disaster

Relief Act of 1970 that authorized grants for private medical care facilities. See summary

of the 1970 Act.

Sec. 9, P.L. 89-769, 80 Stat. 1320.

Sec. 6(b), The Disaster Relief Act of 1966, 80 Stat. 1318.

Sec. 203(a)(4)(B), The Disaster Relief Act of 1970, 84 Stat. 1747.

P.L. 92-210, 85 Stat. 742-43.

Sec. 102(6), The Disaster Relief Act of 1974, 88 Stat. 144.

Sec. 103(f), The Disaster Relief and Emergency Assistance Amendments of 1988, 102

(continued...)

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The decades-long trend toward expanding eligibility for facility repair and

replacement authority shifted in 2000 when Congress amended the Stafford Act

through amendments titled “Streamlining and Cost Reduction.” One amendment

requires that the owner or operator of a private non-profit facility seeking assistance

that does not provide “critical services” apply first to the Small Business

Administration (SBA) for a disaster loan. If the SBA determines the applicant is

ineligible for such a loan or if the maximum amount of the loan has been granted and

further needs remain unmet, the owner of the facility might receive grant assistance.

The amendment defines critical services as “power, water (including water provided

by an irrigation organization or facility), sewer, wastewater treatment,

communications, and emergency medical care.”95

While some disasters over the years may have led some to quietly seek the

extension of grant-in-aid eligibility to affected corporations, the ice storms that

paralyzed much of New England in 1998 set the stage for perhaps the most public

debate over the ineligibility of for-profit entities for Stafford Act assistance. Utility

companies in the New England states lost millions of dollars due to the collapse of

electrical transmission lines weighed down by ice. Public utilities were eligible for

assistance under the Stafford Act, but the commercial (for-profit) utilities were not

eligible. In response to calls for assistance from the commercial utility companies,

Congress appropriated $130 million for the CDBG program.96 The statute directed

that these funds were to be disseminated through the CDBG program “for disaster

relief, long-term recovery, and mitigation ... except for those activities reimbursable

by or for which funds are made available” by FEMA, SBA, or the Army Corps of

Engineers.97

A decision by the HUD secretary to allocate some of the $130 million to states

outside New England affected by other disasters and “just” $2 million to Maine

evoked considerable controversy. According to one news report “Maine’s delegation

in Congress called the federal grant <meager’ and <an outrageous betrayal’ of

Congress’ intent for the money.”98 Secretary Andrew Cuomo of HUD reportedly met

with Members of Congress, and a resolution to the matter was reached through

appropriations and the allocation of additional money for Maine utilities.99

The issue of appropriating CDBG funds to assist a for-profit corporation

affected by a major disaster came before Congress before the September 11 attacks.

Flooding caused by Tropical Storm Allison in June 2001 inundated much of the

(...continued)

Stat. 4690.

Sec. 205(a), Disaster Mitigation Act of 2000, 114 Stat. 1562.

P.L. 105-174, 112 Stat. 76.

Ibid.

Steve Campbell, “Ice Storm Aid Pittance Seen as <Betrayal’,” Portland Press Herald, Nov.

22, 1998, at: [http://www.portland.com/], visited Nov. 23, 1998.

“Congress Grants Maine Utilities More Funds for Damage from 1998 Ice Storm,” Electric

Utility Week, June 7, 1999, p. 14.

CRS-32

Texas Medical Center (TMC), an administrative entity that provides support to

hospital and medical facilities in the Houston area. FEMA officials determined that

TMC facilities that provide medical services were eligible for facility repair grants,

but that the administrative facility was not. FEMA’s ruling was upheld on appeal.100

In recent action on the supplemental appropriations legislation for FY2002, Congress

approved a provision to authorize reimbursement to the TMC.101 An amendment to

extend similar aid to New York colleges affected by the September 11 attacks

reportedly was rejected by the House.102

Policy Options.

Maintain the Status Quo. Federal disaster policies generally authorize loans

and subsidized insurance for private property owners recovering from a major

disaster and grants for facilities owned by public organizations. Some may argue that

this distinction between categories of applicants should continue to be recognized,

or await the results of ongoing congressional study before changes are made.103

Pro. Insurance has traditionally been the primary source of assistance for the

private sector after a disaster strikes. For-profit companies can arguably factor the

costs of that insurance into the prices they charge for goods and services, and can

generally obtain private and federal loans, if necessary, to supplement the insurance.

Congress might consider, on a case-by-case basis, the needs of for-profit entites

affected by a disaster and appropriate CDBG funds as needed.

Con. Some would argue that congressional debate after past major disasters

indicates that the current policy is deficient. Repair and reconstruction costs, in large

part, will be passed on to ratepayers or consumers, and services may be lost if forprofit entities declare bankruptcy or curtail significant operations because they

remain ineligible for federal aid beyond loans and subsidized insurance. Also,

Congress likely will continue to legislate assistance on a case-by-case basis, thereby

altering the longstanding intent of the Stafford Act to establish a continuing

assistance program that is uniformly administered and does not require congressional

debate on victims’ needs following each disaster.

Qualify Certain For-Profit Entities. Pending before the 107th Congress is

legislation (H.R. 3239) that would include private for-profit medical facilities in the

Stafford Act definition of private nonprofit facility to ensure the continuity of

100

Telephone conversation with Ms. Joanne Skinner, congressional liaison staffer, Houston

Disaster Field Office, May 3, 2002. For background see: Alan Bernstein, “TMC Corp.

Denied Flood Funds; FEMA: Hospital Coordinator Does Not Fit Nonprofit Profile,”

Houston Chronicle, Sept. 22, 2001, p. A31.

101

“That notwithstanding any other provision of law, the Texas Medical Center may be

provided FEMA Public Assistance and Hazard Mitigation grants as an agent for eligible

applicants.” H.R. 4775 (Version as placed on Calendar in the Senate), 107th Congress.

102

103

Ellen Yan, “House Move to Beef Up 9/11 School Aid,” Newsday, May 10, 2002, p. A16.

Diana B. Henriques, “Senate Panel Asks G.A.O. to Review FEMA’s Role,” The New York

Times, May 4, 2002, p. A12.

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medical care following a major disaster. Similar legislation might be considered to

make for-profit utility companies or other types of organizations eligible for Stafford

Act grants.

Pro. Past experience indicates the high costs of replacing lost infrastructure,

restoring disrupted services, or compensating organizations for lost revenue if forprofit companies affected by a disaster do not receive federal assistance. Proponents

believe the federal government is a necessary partner in funding such improvements

that, they argue, benefit the national economy.

Con. Including for-profit companies in the definition of entities eligible for

Stafford Act grant assistance would increase federal disaster assistance expenditures,

possibly by a substantial amount. Such costs would increase considerably if forprofit companies other than utilities or medical service industries that provide

arguably “essential” services or goods sought to be included. There may also be a

question of whether covered for-profit utilities would decrease the amount of

insurance they carry once they are eligible for grants.

Amend the “Critical Services” Provision. The Disaster Mitigation Act

of 2000 listed utility services and emergency medical care as critical services that do

not require facility owners to apply first for SBA loans. The Act also grants the

President discretion in making such decisions.104 Other services deemed essential or

critical might be added to the list, such as education systems, providers of counseling

assistance, or those that feed or shelter the homeless. As another option, the

President could be granted greater discretion to identify such services on a case-bycase basis.

Pro. Some essential services are provided by for-profit as well as non-profit

organizations. The delivery of some of those services, even administrative services,

are important as communities attempt to return to business as usual after a terrorist

attack or other disaster. Congressional consideration of the unique needs of certain

disaster victims and of stricken communities may lead to the conclusion that greater

latitude should be given administration officials in identifying critical services.

Con. Federal disaster assistance costs would escalate if the cost savings

provisions of the 2000 Act were stricken. If the legislation were amended to

authorize administration officials to use greater discretion in deciding among

“essential” or “critical” services provided by for-profit or other non-profit

institutions, administration officials would be pressed to continue to expand federal

grant assistance. Decisions on where to draw the line could be colored by political

considerations.

104

“The President may make contributions to a private nonprofit facility under paragraph

(1)(B) only if—“(i) the facility provides critical services (as defined by the President) in the

event of a major disaster...” Section 205, P.L. 106-390, 114 Stat. 1562.

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Federal Coordination of Recovery Assistance105

Issue Summary. As a result of the catastrophic destruction of property in

lower Manhattan after September 11, New York City began a large-scale, long-term

recovery effort. The neighborhood is to be reconfigured, new infrastructure set in

place, and buildings repaired or newly constructed. FEMA and other federal

agencies, charged with providing recovery assistance after major disasters, will

contribute billions of dollars to the project and coordinate efforts with state and local

agencies.

Some progress has been made in rebuilding the neighborhood despite the extent

of damage that occurred and the complexities of rebuilding a large part of lower

Manhattan. However, the magnitude of the destruction in New York City, the

projected costs, and the significance of this project to the nation present a new

challenge to federal officials. The issue before Congress is whether current federal

authorities and plans are adequate to coordinate and monitor federal and non-federal

rebuilding activities in New York City, and, by extension, long-term recovery efforts

that may be required in other cities after future terrorist attacks.

Issue Analysis. Some catastrophic disasters have struck major cities in the

United States with devastating costs in life and property. The flooding of Galveston

in 1900, the San Francisco earthquake of 1906, and more recently, the destruction of

part of Los Angeles in 1994 from the Northridge earthquake resulted in the remaking

of large parts of these urban centers and the coordination of federal and non-federal

resources. Whether the catastrophe is caused by an earthquake, flood, or terrorist

attack, disaster recovery involves decisions on land use planning, neighborhood

versus regional or national concerns, and the involvement of a host of interested

parties such as citizens, businesses, property owners, civic associations, and elected

officials.

Application to Terrorist Attacks. In coordinating federal assistance to New

York City, FEMA will work with a joint city-state corporation created in November

2001 to oversee the recovery process—the Lower Manhattan Development

Corporation (LMDC).106 The LMDC, in partnership with the Port Authority of New

York and New Jersey, is responsible for planning the long-term redevelopment of

affected portions of lower Manhattan and coordinating local, state, and federal

assistance. The corporation is led by a 16-member board, has a full-time staff, and

has nine advisory committees, including one committee that represents the families

of victims. The LMDC will fund its activities with state and federal money.

As the LMDC and the Port Authority coordinate New York City’s recovery

efforts, Congress might consider whether federal authorities and plans are adequate

for coordinating assistance to a large-scale, long-term recovery effort following

terrorist attacks. It may be that they are not adequate to address the large scale and

long duration of New York City’s recovery. Despite the considerable experience of

105

106

Written by Ben Canada, Government and Finance Division.

The Lower Manhattan Development Corporation’s Web site is

[http://www.renewnyc.com].

CRS-35

FEMA and other federal agencies in coordinating assistance, federal agencies are not

accustomed to a recovery project of this magnitude. Should an even more

devastating terrorist attack occur, such as one that involved the contamination of a

commercial district with a CBRN device, the recovery complexities could multiply.

Some specific questions Congress might address as it considers federal

coordination efforts after terrorist attacks include the following:

! Should the Stafford Act, which governs most federal disaster assistance, be

amended to better address long-term recovery issues?

! How will federal agencies coordinate efforts with the LMDC (or similar

entities in other cities) and implement recovery activities in a timely manner?

! Will federally funded recovery projects receive sufficient public input during

the planning process? How will the concerns and interests of some sectors

(e.g. low-income residents) be balanced with those of others (e.g., property

owners or developers)?

! Should other metropolitan communities be encouraged to devote more

resources to recovery planning in anticipation of a disaster or potential attack?

FEMA has not yet released an after-action report on federal recovery activities

in New York City.107 Federal officials, however, have commented on the

effectiveness of ongoing federal recovery efforts. For example, FEMA Director Joe

Allbaugh has expressed his belief that federal coordination efforts have been

successful to date. In congressional testimony, he said that FEMA has received

support from the Departments of Agriculture, Defense, Energy, Justice, and

Transportation, and other agencies.108

Another FEMA official expressed support for the current authorities provided

by the Stafford Act and the guidance provided in the Recovery Annex of the Federal

Response Plan. Marianne Jackson, FEMA’s deputy federal coordinating officer for

the World Trade Center disaster, testified before the Senate Committee on

Environment and Public Works that she believed the Stafford Act provided sufficient

authority for FEMA to effectively carry out response and recovery activities. She

also expressed support for existing plans:

Since 1992, and again in response to the tragic events on September 11, 2001, the

Federal Response Plan has proven to be a solid framework time and time again

for managing major disasters and emergencies regardless of cause.... The

107

FEMA, as well as state and local governments, typically publish after-action reports

following the response and recovery phases of a disaster. The reports generally offer an

overview of activities and an evaluation of the response and recovery efforts.

108

Statement of Joe M. Allbaugh, director of U.S. Federal Emergency Management Agency,

U.S. Congress, Senate Committee on Environment and Public Works, FEMA Response to

September 11, 2001 Attacks, hearings, 107th Cong., 1st sess., Oct. 16, 2001.

CRS-36

framework is successful because it builds upon the existing professional

disciplines and relationships among the participating agencies.109

A number of observers, however, have criticized the coordination of federal

assistance following the terrorist attacks. Some have faulted FEMA and the EPA

with failing to coordinate the reporting of air quality in lower Manhattan, a factor that

may affect rebuilding efforts as residents and businesses contemplate relocation.110

Others have criticized FEMA’s communication with nonprofit charities, stating that

a lack of coordination has resulted in eligibility problems for attack victims and the

distribution of funds that would facilitate economic recovery.111 FEMA has also

received criticism for the timeliness and interpretation of eligibility regulations in

some of its programs, notably mortgage and rental assistance for those who face

eviction or the loss of residences due to the effects of the attack.112

Some have expressed concern that the federal government will not sufficiently

assist the city with the replacement of lost infrastructure and will not provide

assistance over the duration of the recovery. They have specifically cited the need

for federal funding of transportation projects, including replacing demolished subway

tunnels and stations and extending train lines that were not damaged in the attacks.113

Still others questioned the methods by which public participation will be

integrated into the recovery planning process. Some have noted some conditions that

may inhibit public participation, including an accelerated design process established

by the LMDC, along with the potentially competing interests of family members of

victims, land developers, local residents, business owners, and public officials.114

Background. Given the devastation in New York City and the worse

devastation that could result from a terrorist attack involving a weapon of mass

109

Statement of Marianne Jackson, deputy federal coordinating officer, U.S. Federal

Emergency Management Agency, U.S. Congress, Senate Committee on Environment and

Public Works, Subcommittee on Clean Air, Wetlands, and Climate Change, Impacts on Air

Quality of the September 11th Attacks and Possible Health Effects in the Area of the World

Trade Center, hearings, 107th Cong., 2nd sess., Feb. 11, 2002.

110

This issue is discussed in the section of this report titled “Environmental Hazard

Assessment and Communication.” See also: Stevenson Swanson, “Panel Told NYC Was

Misled on Air Quality,” Chicago Tribune, Feb. 12, 2002, p. 11; Associated Press State and

Local Wire, “Data on Toxic Dust Never Made It to Ground Zero,” February 10, 2002.

111

Dana B. Henriques and David Barstow, “Change in Rules Barred Many from Sept. 11

Disaster Relief,” New York Times, April 26, 2002, p. A1.

112

Raymond Hernandez, “FEMA’s Pace on 9/11 Aid Is Criticized,” New York Times, June

14, 2002, p. A1. Also See: David Barstow and Diana B. Henriques, “Sorting Out Why U.S.

Agency Spent So Little,” New York Times, April 26, 2002, p. A13.

113

Steven Malanga, “How to Rebuild New York,” City Journal, Autumn 2001, vol. 11, no.

4, at: [http://www.city-journal.org/html/11_4_how_to_rebuild.html], visited June 11, 2002.

114

Monika Iken, “WTC Agency Ignores Families and Reality,” New York Daily News, May

6, 2002 and Edward Wyatt, “Blueprint for Ground Zero Begins to Take Shape,” New York

Daily News, May 4, 2002.

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destruction (WMD), Congress may examine past practices and consider new

mechanisms for coordinating assistance. At least one such examination has been

reported to have occurred in the past. Following the Northridge earthquake of 1994,

some observers believed that federal assistance programs were not suitably structured

for a large-scale disaster. In a 1996 congressional hearing on the federal

government’s response to the earthquake, one California official stated:

Because of the inherent technical complexities of the seismic damage, the

Northridge earthquake has highlighted limitations in the current structure of

federal disaster assistance regulations and policies. I believe that federal disaster

assistance policies, particularly as they apply to damaged public structures, need

to be reformed. Quite simply, current programs are too costly to administer, too

often applied in an inconsistent and arbitrary manner, placing FEMA in roles and

decisions that sometimes directly conflict with the authority of local and state

governments.115

As the recovery process in New York City proceeds, it is possible that the terrorist

attacks of September will lead to another examination of federal disaster policy and,

specifically, coordination of recovery assistance.

Following a major disaster declaration, affected areas became eligible for a wide

array of federal recovery assistance. The recovery phase typically begins when the

response phase, which involves search and rescue and other lifesaving activities, is

nearly complete or has ended. The “Recovery Annex” in the Federal Response Plan

describes recovery activities as “... actions by disaster victims that enable them to

begin the process of rebuilding their homes; replacing property; resuming

employment; restoring their businesses; permanently repairing, rebuilding, or

relocating public infrastructure; and mitigating future disaster losses.”116 Congress

has authorized recovery assistance for individuals and families, small businesses, and

state and local governments through several statutes, including the Stafford Act.

The Stafford Act authorizes FEMA to coordinate all federal assistance provided

to eligible recipients following a disaster declaration. Other agencies administering

recovery programs include the Small Business Administration (SBA) and the

Departments of Justice and Labor. In addition, many other agencies administer

general assistance programs that may be applicable in disaster situations. In general,

federal recovery programs do not have public participation requirements other than

requirements to provide public notice.117

115

Statement of Richard Andrews, director, Office of Emergency Services in: U.S.

Congress, House Committee on Government Reform, Subcommittee on Government

Management, Information, and Technology, The Government’s Response to the Northridge

Earthquake, hearings, 104th Cong., 2nd Sess., Jan. 19, 1996. pp. 65-66.

116

U.S. Federal Emergency Management Agency, Federal Response Plan (Washington:

April 1999), p. RF-1, available at [http://www.fema.gov/r-n-r/frp/], visited April 8, 2002.

117

An exception concerns the authority of the EPA regarding a release or threatened release

that might pose an imminent and substantial threat to public health or welfare or to the

environment. EPA has prepared a public participation guidance for coordinators. For an

overview of the authority, delegation of responsibility, and summaries of directives see:

(continued...)

CRS-38

The “Recovery Annex” of the Federal Response Plan includes guidance for

federal recovery activities authorized by the Stafford Act. The Annex emphasizes

that the affected state and local governments are ultimately responsible for setting

recovery priorities, developing plans, and coordinating assistance, and that federal

resources are meant to “... complement and supplement State, local, and private

resources to facilitate recovery.” Furthermore, the Annex acknowledges FEMA as

the lead federal agency in the recovery process and instructs other agencies to work

with FEMA in delivering recovery assistance.118 The “Recovery Annex” does not

address long-term recovery issues or public participation in planning federally funded

projects.119

Policy Options. If Congress examines the existing authorities and plans

governing federal assistance in the context of recovery on a large scale from terrorist

attacks, it might consider such options as the following.

Maintain the Status Quo. Congress might maintain the existing authorities

and plans governing the coordination of federal assistance. While certain aspects of

federal recovery efforts have been criticized, changes in statutory authority may not

be necessary. The city’s long-term recovery, however, is in its early stages and

evaluations of federal coordination have not been completed.

Pro. Arguably, the Stafford Act already gives the President sufficient authority

and flexibility to address unique needs that might arise during recovery from terrorist

attacks. It is possible that amending the Act in a way that directs the President to use

a specific plan or process could decrease the President’s flexibility in bringing federal

resources to bear after terrorist attacks.

Con. There have been a number of criticisms about aspects of the recovery

process. Coordination of information among federal agencies, nonprofits, and

individuals is the subject of much of the criticism. Some applicants and elected

officials have questioned federal agencies’ determination of eligibility for assistance.

The existing authorities and plans might not be appropriate for recovery that is longterm and large-scale. Changes might better ensure coordination of agencies’ activities

over a multi-year recovery effort after communities suffer from a terrorist attack.

Create a Special Coordinating Office. Congress might create or authorize

the President to create a special office for coordinating assistance after certain

disasters when lengthy and extensive federal involvement is expected. Congress

most recently pursued this option following the Cerro Grande fires in New Mexico

in 2000. After that disaster, Congress created the Office of Cerro Grande Fire Claims

within FEMA and charged it with overseeing federal assistance to victims.120

Similarly, if a special office were authorized for recovery activities in New York

117

(...continued)

[http://es.epa.gov/oeca/osre/980210.html], visited June 17, 2002.

118

Ibid., pp. RF-4-RF-7.

119

Ibid., pp. RF-8-RF-11.

120

P.L. 106-246; 114 Stat. 583-590.

CRS-39

City, it could represent federal interests and provide a continuing presence for the

needs of the city and its residents.

Officials from the LMDC reportedly have stated that the recovery of New York

City will take several years.121 One task Congress might assign to a special

coordinating office would be to explore means of expediting the delivery of federal

assistance, including the advantages and disadvantages of returning federal offices

and employees to Lower Manhattan.122 For example, some observers have suggested

that some assessments required by federal, state, and local governments, including

environmental impact statements, could be jointly conducted, and that procedures for

granting building permits could be combined.123

A special office also could undertake and coordinate non-recovery activities that

might be required solely in the context of terrorist attacks, such as improving warning

systems and coordinating security and law enforcement resources. Congress could

charge a special office with facilitating communication between federal law

enforcement agencies and state and local officials. Federal officials have warned that

terrorists may again attempt attacks on New York City landmarks and “highvisibility” targets.124 A special office might include a law enforcement branch with

liaisons from the Federal Bureau of Investigation, Coast Guard, and other agencies,

as needed. The framework envisioned in the proposed Department of Homeland

Security might be applied to or considered in developing such an option.

Another option would be to delegate to the State of New York a degree of

decision-making authority over the federal assistance it receives. Congress could

delegate specific authorities to the state (which the state might elect to pass to the

LMDC), such as authority to coordinate administrative review processes, award

grants, and request funds directly from federal agencies. Congress enacted a similar

option in the 1974 amendments to the Public Works and Economic Development Act

of 1965.125 The amendments provided for the creation of “recovery planning

councils” following a disaster. The councils were required to include at least one

official each from the state government and the federal government, but they had to

maintain a majority of local government officials. The law gave them authority to

develop recovery plans and request funds from federal agencies (with the governor’s

consent). It also authorized the President to fund the activities of the recovery

planning councils, including the provision of funds for councils to make recovery

121

Edward Wyatt, “A Nation Challenged: Ground Zero: Years of Work Underground Before

Steel Reaches Skyward,” The New York Times, March 27, 2002, p. A12.

122

Associated Press, “Elected Officials Demand Return of Customs Service to Lower

Manhattan,” June 17, 2002.

123

Stephen L. Kass and Jean M. McCarroll, “Rebuilding Lower Manhattan,” New York Law

Journal, Oct. 26, 2001, pp. 3-4.

124

Dan Barry and Al Baker, “Security Tighter in New York After Vague Terrorist Threat,”

The New York Times, May 22, 2002, p. A2; Philip Shenon, “Suicide Attacks Certain in U.S.,

Mueller Warns,” The New York Times, May 21, 2002, p. A3.

125

P.L. 93-288; 88 Stat. 160.

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grants and loans.126 Congress, however, never appropriated money for the councils,

and the provision was stricken in 1988.

A bill introduced in the Senate, S. 1624, proposes an Office of World Trade

Center Attack Claims. Under this proposal, the office would oversee only claims

from individuals, families, and small businesses. The bill does not address the

replacement of public infrastructure and long-term economic recovery issues.

Pro. A special office, with its own authorities and budget, might ensure that

federal resources are used more efficiently and effectively throughout the recovery

process. It could also offer state and local officials a single point-of-contact for

collecting information and resolving issues. Congress could also instruct the office

to undertake specific activities to assist recovery efforts and ensure that congressional

objectives are attained, such as administering the appeals process for assistance

programs, monitoring for fraud, identifying opportunities for mitigation, and

evaluating the effectiveness of federal programs.

Con. Given that existing federal plans already establish a framework for

coordinating federal recovery efforts, a special office might be considered

unnecessary. FEMA officials have expressed support for the existing authorities and

framework. This option could possibly disrupt existing relationships among federal,

state, and local agencies. Lastly, such an office might or might not fit the design that

Congress adopts in creating a Department of Homeland Security.

Expand Waiver Authority. Statutory and administrative requirements

placed on disaster assistance programs may at times delay the delivery of assistance.

Providing federal agencies the authority to waive selected requirements could

facilitate the coordination and distribution of assistance to recipients.

The Stafford Act grants federal officials discretion in waiving administrative

regulations for major disaster situations. If a state or locality is unable to satisfy an

administrative regulation due to the consequences of a major disaster, federal

officials may waive or modify such requirements that might impede the delivery of

federal assistance.127 Some observers have suggested that federal agencies should

have comparable authority to modify regulations to expedite the delivery of

assistance in lower Manhattan. For example, they suggest agencies could simplify

permitting processes, shorten public comment periods, or minimize reporting

requirements.128

The Stafford Act also affords FEMA statutory flexibility in the public assistance

program. States and localities have the option of accepting a contribution of up to

75% of the estimated cost of a proposed project in lieu of a matching grant for

126

P.L. 93-288, sec. 802(b), 802(c)(2), and 803(a); 88 Stat. 160.

127

42 U.S.C. 5141.

128

“Rebuilding Lower Manhattan,” pp. 2-3.

CRS-41

reconstruction.129 Should state and local officials determine that the community

would be better served by not repairing or replacing damaged or destroyed public

facilities, they might apply for an in-lieu contribution rather than seek reimbursement

for the cost of replacement or repairs. Congress might consider extending such

authority to other federal assistance programs, such as the Individual Assistance

program, SBA disaster loans, and CDBG, which limit federal assistance to specific

activities. Such an option could allow individuals, small businesses, and

governments to better adapt federal assistance to meet their unique needs. On the

other hand, it could generate problems in assuring accountability of federal funds.

A related option would be to allow federal agencies, upon request from a

recipient government, to deobligate funds for one activity and obligate them to

another activity. Some observers have suggested that this option would allow New

York City and New York state more flexibility in using federal funds for recovery

projects. For example, one specific recommendation from observers is to use funds

remaining from the debris removal phase (completed under budget and ahead of

schedule) for transportation projects. The latter might be the most costly of the city’s

recovery activities.130

While plans are still under discussion, it appears that city and state officials in

New York might seek flexibility within the requirements of federal programs. The

LMDC stated in its preliminary blueprint that it will not seek to replicate the former

urban landscape, but design a new lower Manhattan that will better accommodate

mass transit systems, encourage residential development, promote commercial

enterprises, and create urban parks.131 Existing federal requirements that would bind

grantees to past development patterns or practices might be reconsidered.

Pro. In some cases, waiving or modifying certain statutory and regulatory

requirements could expedite the delivery of federal assistance, which could

subsequently expedite the recovery process. Also, it could allow states and localities

to better adapt federal assistance to their particular recovery plans.

This option might also allow federal agencies to better assist areas threatened

by terrorism. The existing authorities governing disaster assistance might not be

appropriate for dealing with terrorist attacks, because many of the programs were

created to respond to natural disasters, which typically strike a given area and then

dissipate. Terrorist attacks, however, could be continuing incidents with lasting

effects that require different types of aid. Multiple or successive attacks could occur

in one community, possibly requiring greater flexibility in recovery efforts.

Con. If federal agencies have discretion in waiving or modifying statutory

requirements, federal recovery programs might not be applied pursuant to

129

42 U.S.C. 5172.

130

Edward Wyatt and Randy Kennedy, “$7.3 Billion Vision to Rebuild Transit Near Ground

Zero,” The New York Times, April 20, 2002, p. A1.

131

Lower Manhattan Development Corporation, “Principles and Preliminary Blueprint for

the Future of Lower Manhattan,” April 9, 2001, available at the LMDC Web site,

[http://www.renewnyc.com], visited June 10, 2002.

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congressional policy objectives. Compliance with congressional economic

development or environmental protection goals could be disregarded or minimized

in favor of satisfying state and local recovery needs. Expanding waiver authority

could also inhibit the ability of federal officials and Congress to evaluate the

efficiency and effectiveness of assistance programs. It could also create problems in

tracking and accounting for funds.

Establish Requirements for Public Participation. Given the large

number of stakeholders in New York City’s recovery, the complications of

recovering from other terrorist attacks, and the substantial amount of federal

assistance that will fund recovery projects, Congress might establish requirements for

public participation.

The LMDC and the Port Authority have established an accelerated planning

schedule. The two organizations expect to have six proposed land-use plans appoved

by July 1, 2002, and a final plan in place by December 1, 2002. Some observers have

stated that this schedule does not allow enough time for planning officials to receive

public input or for designers to formulate proposals.132 The LMDC and Port

Authority, however, have released a schedule of public forums and comment periods

that will continue through the remainder of 2002 in order to obtain viewpoints of

many interested parties.133

Other observers have criticized city and state officials in New York for

establishing an LMDC governing board that they believe is not conducive to public

participation. Specifically, stakeholder groups such as families of victims and local

residents have argued that the LMDC board should contain representatives of their

groups. At the time of this writing, the board did not include a family member of a

victim or a resident of lower Manhattan. The LMDC, however, has attempted to

incorporate input from these and other groups by forming advisory councils

exclusively for such groups as victims’ families, residents, and small business

owners. Some observers believe that excluding these stakeholder groups from the

LMDC’s board is inappropriate.134

Pro. Establishing requirements for public participation might better ensure that

recipients of federal assistance, including New York state agencies, New York City,

and the LMDC, receive and consider the range of viewpoints during the various

phases of the city’s recovery. It could also ensure that planning officials consider

input from the broad range of stakeholders. Establishing such requirements could

also serve as a model for public participation in future large-scale recovery efforts.

Con. It is possible that setting requirements for public input could lengthen the

planning process since planning officials might have to receive and analyze more

132

William Neuman, “What’s the WTC Rush?” New York Post, May 7, 2002, at:

[http://www.nypost.com/news/regionalnews/47301.htm], visited June 11, 2002.

133

134

Available at LMDC web site: [http://www.renewnyc.com], visited May 24, 2002.

Iken, “WTC Agency Ignores Families,” May 6, 2002; Paul Goldberger, “Groundwork:

How the Future of Ground Zero Is Being Resolved,” The New Yorker, May 20, 2002, pp.

86-95.

CRS-43

suggestions from citizens representing competing interests. Some observers have

suggested that, with such a broad range of stakeholders, a consensus approach to

lower Manhattan’s new design ultimately might not satisfy some of the city’s goals

such as economic revitalization and construction of an appropriate memorial to

victims.135 It might also be characterized by some as substituting federal judgements

for those more appropriately made at the state and local levels.

Promote Pre-Disaster Recovery Planning. Congress has authorized the

President to assist states in preparing for disasters, including planning for recovery

of damaged or destroyed facilities.136 At present, FEMA encourages states to include

recovery planning in their comprehensive plans. Should Congress decide further

effort is needed, it could promote pre-disaster recovery planning by increasing

funding for disaster planning grants and authorizing funds for recovery training and

exercises.

Pro. This option could encourage states to develop new (or enhance existing)

plans for disaster recovery. The “Recovery Annex” in the Federal Response Plan

endorses this concept, stating, “Before a disaster, interagency planning and

coordination provide a foundation for strengthening relationships among Federal and

State agencies, voluntary organizations, and private sector entities ....”137

Con. Some states, perceiving themselves to be at little risk of terrorist attacks,

might find other, arguably higher priorities, for the funds. In addition, pre-disaster

recovery training and assistance activities would likely involve federal officials

experienced in disaster relief. It is possible that assigning them to provide such

assistance could detract resources from other federal emergency management

activities.

135

Tony Coles, “Ground Zero: Get Moving,” New York Post, May 3, 2002, p. A10.

136

42 U.S.C. 5131(b).

137

FEMA, Federal Response Plan, p. RF-3.

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Expedited Public Health Studies138

Issue Summary. Exposure to chemical, biological, and/or radiological

(CBR) agents released in a terrorist situation can threaten victims’ health for some

time after exposure. Careful monitoring of the health of victims by academic

researchers, in addition to federal agency monitoring efforts, as soon as possible after

exposure could be useful in quickly determining regimens that would help the

victims recover most successfully. Such monitoring practices could also advance the

state of medical knowledge and public health policies and procedures and assist

public officials responsible for negotiating liability and damage issues.

Many academic health researchers and other professionals not affiliated with

government agencies and research laboratories might choose to delay the start of

health monitoring until funding is secured. Conventional funding processes, such as

applying for study grant money, often requires time-consuming review and clearance

procedures. Early opportunities to begin monitoring victims’ health and to gather

relevant exposure information could be lost while applications are in process.

Congress might elect to consider changes to current federal law to authorize

expedited funding for public health studies, particularly after terrorist attacks that

potentially increase public health concerns.

Issue Analysis. Federal administrative requirements associated with the

provision of federal assistance after a major disaster can be waived in a major

disaster by any federal agency if requested by the applicant state or local authorities

pursuant to Section 301 of the Stafford Act.139 At issue here is not typical disaster

assistance per se, but expeditious funding for researchers in the private sector so that

they might conduct health monitoring studies while optimum (although potentially

tragic) conditions exist. Whereas the waiver authority in Section 301 applies to

requests made by state and local authorities, qualified health researchers and other

professionals might seek such authority to expedite the data-collection and analysis

process.

Application to Terrorist Attacks. Impacts on human health began from the

moment of the attacks.140 Victims were exposed to chemical, physical, and

psychological hardships during and after the September 11th attacks. At the WTC,

asbestos and other substances were airborne and landed on animate and inanimate

surfaces. Many people may have been exposed to these potentially health-threatening

138

Written by Michael Simpson, Resources, Science, and Industry Division.

139

42 U.S.C. 5141.

140

Department of Health and Human Services, Centers for Disease Control, “Assessment of

Injuries Among Survivors of the Terrorist Attack on the World Trade Center—New York

City, September 2001,” MMWR Journal Weekly, vol. 51, Jan. 11, 2002, pp. 1-5; Trudy

Berkowitz, Mt. Sinai School of Medicine, telephone conversations with the author, Jan.Feb., 2002.

CRS-45

substances. In addition, residents and workers experienced psychological stresses

related to the attacks; some may show evidence of that stress for years.141

As the consequences of the attacks on the survivors became known, various

private sector medical, public, and occupational health researchers and other

professionals recognized the need and unique opportunity to monitor the physical and

psychological health of victims. Studies were seen to be needed to determine the best

regimens for recovery, to add to medical and public health knowledge, and to provide

facts for possible future efforts to address health as well as liability issues.

Despite the recognition of the needs and opportunities, some researchers

postponed initiation of their studies until funding could be secured.142 In the process,

some opportunities for gathering data from victims and from the field may have been

lost. As one example, pregnant women exposed to airborne emissions around the

World Trade Center are being monitored for health effects of various substances

including polychlorinated biphenyls, dioxins, furans, polycyclic aromatic

hydrocarbons, lead, cadmium, and mercury. However, women who delivered their

babies prior to the start of the study were excluded from the study cohort. Additional

funding has been applied for to allow monitoring the babies’ health to two years of

age to assess possible effects of exposure on growth and development.143

Background. The Department of Health and Human Services (HHS)

administers approximately 300 grant programs. Most of the grants are funded in a

decentralized manner by several HHS agencies, including the National Institutes of

Health and the Health Resources and Services Administration. Announcement and

review guidelines help ensure that limited research grant funds are awarded fairly.144

In general, considerable time is required to comply with the routine guidelines or

rules for the programs. Under very unusual circumstances, sometimes involving

interactions with foreign governments, a different set of procedures can be followed.

It is possible, for example, for the secretary of HHS to designate that a “sole source”

shall receive funds to perform a specific task.145

141

One study examined victims of “floods, earthquakes, and hurricanes” and found that

natural disasters increased suicide rates for flood victims “in the four years after floods by

13.8 percent” and “in the two years after hurricanes by 31.0 percent,” but “suicide rates did

not change significantly after tornadoes or severe storms.” Etienne G. Krug, M.D., and

others, “Suicide After Natural Disasters,” The New England Journal of Medicine, vol. 338,

Feb. 5, 1998, p. 373-378.

142

Trudy Berkowitz, Mt. Sinai School of Medicine, telephone conversations, Jan.-Feb. 2002.

143

Frederica Perera, Mailman School of Public Health, Columbia University, telephone

conversations, Jan.-Feb., 2002; Trudy Berkowitz, Mount Sinai School of Medicine,

telephone conversations, Jan.-Feb., 2002.

144

Details about HHS grants can be found at [www.hhs.gov/grantsnet/grantinfo.htm], visited

June 11, 2002.

145

The applicable statutory authority authorizing one type of sole source procurement is 41

USC 253 (c) (1), as set forth in FAR 6.302-1.

CRS-46

Authority somewhat analogous to proposals to expedite the application process

for studies is suggested in P.L. 107-188, the “Public Health Security and Bioterrorism

Response Act of 2001.” That statute authorizes the HHS Secretary, during a public

health emergency, to transfer funds between appropriations accounts without lengthy

waiting periods. Another legislative option (S. 1621), pending before Congress,

would authorize the President to “carry out a program for the protection, assessment,

monitoring, and study of the health and safety of community members, volunteers,

and workers in the disaster area.”

Policy Options. Congress might consider the extent to which, or whether,

existing federal policies pose an obstacle to efforts to examine the health effects of

terrorist attacks. Some of the options that might be considered by Congress include

the following.

Maintain the Status Quo. One policy option is to keep, without change,

current policies and procedures regarding funding for health studies. If Congress

elects not to consider legislation on this issue, conventional announcement and

review procedures would continue to be used to be followed.

Pro. It takes time and human and material resources to create a scientifically

sound study of physical and psychological health effects of exposure to physical and

psychological hardships and to review and refine such a proposed study. Proponents

of the status quo may contend that limited federal private research grant funds should

be reserved for studies that have been thoughtfully and carefully created and

reviewed. Holders of this view might argue that data losses incurred while creating

and reviewing research funding applications are not worth jeopardizing conventional

procedures meant to protect objectivity and quality of research.

Con. Those who perceive the need for modifications to existing policy might

argue that conventional scientific peer review prevents the loss of objectivity and

quality in the performance of expedited health studies. In some situations, they may

argue, the data lost while securing funding in conventional ways could be significant,

and that explicit provision for expedited funding is needed to help insure the most

complete knowledge base possible.

Amend the Public Health Service Act. Another option might be to amend

Section 319 of the PHS Act to permit the secretary during a public health emergency

to accelerate reviews of grant applications and related funding mechanisms.146 The

Secretary could be given discretion to award research funds without lengthy waiting

periods in the aftermath of severe emergencies or disasters.

Pro. Proponents believe that an amendment to the PHS Act would contribute

to maximizing the knowledge base from which determinations are made regarding

the best regimens to help victims recover physically and psychologically from a

terrorist attack. They assert such studies could add to medical and public health

knowledge of causes of illnesses, the progression and manifestation of health

impacts, and the range and effectiveness of remedies.

146

42 U.S.C. 247d-3.

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Con. Those who oppose an expedited review procedure may argue that

expedited funding could waste limited federal resources on hasty health studies of

inferior scientific quality. Moreover, findings of inferior scientific quality could

pollute the knowledge base and complicate future efforts to address liability and

damage issues associated with terrorist attacks.

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Tracking Federal Costs of Disasters147

Issue Summary. Information on federal disaster assistance costs likely will

be of interest in congressional assessments of current disaster assistance policies and

their application to future terrorist attacks. Cost data might be used to compare

benefits provided from one disaster (including terrorist attacks) to another, to monitor

the expenditure and use of federal funds, and to establish budget priorities and

estimates. At present, individual federal agencies might report to Congress in the

annual budget requests on the obligations they have made on preparedness, response,

recovery, or mitigation activities. However, information is not collected in a

comprehensive or consistent fashion.

Many, if not all, congressional appropriations subcommittees have jurisdiction

over agencies that provide disaster assistance. The issue before Congress is whether,

and to what extent, federal resources should be committed to tracking federal costs.

Among the options it may elect to consider, Congress might choose to mandate that

the executive branch collect and publish federal emergency management cost data,

consolidate such information based on each agency’s submissions, or establish a

common reporting framework to be used by the agencies.

Issue Analysis. The need for comprehensive data on federal disaster

expenditures has been discussed by Members of Congress as well as researchers and

administrators in the emergency management field.148 The tremendous costs of

responding to and recovering from the terrorist attacks of September 11 might result

in additional requests for such information, particularly as Congress makes budget

allocation decisions among pressing needs.

Application to Terrorist Attacks. The attack on the WTC and the

Pentagon might have resulted in the most expensive disaster assistance effort in the

nation’s history. FEMA work constitutes just one part, although a significant

element of, the federal effort. The FEMA budget justification for FY2003 notes that

“response and recovery efforts have been, and continue to be, massive, as are the

projected financial costs, which are expected to eventually approach $9.5 billion.”149

Before the attack, the highest level of FEMA obligations for a single disaster

was $7 billion provided to California after the Northridge earthquake in 1994.150 The

costs of consequence management associated with September 11 might be compared

to an entire year’s obligations. The disaster assistance costs associated with

147

Written by Keith Bea, Government and Finance Division.

148

For example see: U.S. Congress, House Committee on the Budget, Task Force on Budget

Process, Budgetary Treatment of Emergencies, hearing, 105th Cong., 2nd sess., June 23, 1998

(Washington: GPO, 1998).

149

U.S. Federal Emergency Management Agency, Justification of Estimates FY2003

(Washington, 2002), p. DR-5.

150

Ibid., p. DR-7.

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September 11 appear to be almost twice the amount obligated for “the decade high

total of $4.4 billion” in FY1999.151

The emergency supplemental legislation enacted after September 11 requires

that OMB report to Congress on funds provided in response to the September 11

attacks.152 Accordingly, OMB collects comprehensive data on obligations committed

with the $40 billion appropriation. As of March 31, 2002, of the $40 billion

appropriated, $18.275 billion had been obligated, $11.6 billion (63%) by the

Department of Defense. Of the $6.7 billion obligated by the other federal agencies

as of that date, $1.1 billion had been obligated by FEMA; $1.7 by the HHS for health

care expenses and counseling; and other departments and agencies obligated less than

$1 billion each for disaster recovery assistance.153

While the quarterly report issued by OMB contains some information on federal

disaster assistance costs, it could be perceived to provide insufficient detail to enable

Members of Congress to discern the particular purposes for which funds have been

used, and might raise additional questions about federal disaster assistance priorities.

Brief summary information on obligations is presented for some agencies, but not for

all. For example, the $2 million obligated by the Economic Development

Administration of the Department of Commerce “will be used to support business

development assistance programs.” To what extent are those programs linked to the

September 11 attacks? The destination or potential use of these funds is not

indicated.154 Also, considerable controversy has been reported regarding the needs

of the educational system in New York City.155 Some claim that needs have not been

met. However, no obligations had been made by the U.S. Department of Education

(ED) as of March 31, 2002, and all of the funds will not be used in New York City.

According to the OMB report:

The Department of Education expects to obligate $5 million of its $10 million

in emergency funds for the NYC areas by the end of May. No obligations have

been made because the Department has not determined the relative funding

151

U.S. Federal Emergency Management Agency, Justification of Estimates Fiscal Year

2002 (Washington: 2001), p. DR-5. In FY1999 a total of 103 declarations were issued, as

follows: 40 major disasters, 5 emergencies, and 58 fire suppressions. Historical data on

FEMA disaster relief obligations are presented in CRS Report RL31359, Federal

Emergency Management Agency Funding for Homeland Security and Other Activities, by

Keith Bea.

152

“That the Director of the Office of Management and Budget shall provide quarterly

reports to the Committees on Appropriations on the use of these funds, beginning not later

than January 2, 2002:” P.L. 107-38.

153

U.S. Office of Management and Budget, “Report on Expenditures from the Emergency

Response Fund,” amounts as of March 31, 2002 (Washington: 2002).

154

Note that information such as this may justifiably not be expected in summary reports

provided by OMB, but may be available from each agency. This, however, raises the issue

of the degree of effort Congress would be expected to exercise in order to obtain

information on the use of appropriated disaster assistance funds.

155

For example, see: Michelle Davis, “New York Schools, U.S. Officials at Odds Over 9/11

Aid,” Education Week, May 15, 2002, vol. 21, pp. 24, 26.

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allocation for NY City, NY State, Connecticut and New Jersey. The Department

has no specific plans to obligate the remaining $5 million in emergency funds.

Congress instructed the Department not to spend all of its emergency funds on

September 11th response, but instead use a portion of the funds for other

jurisdictions and emergencies.156

In summary, while the reports issued by OMB pursuant to the congressional directive

provide information on tracking total obligations, they might be considered deficient

for purposes of assessing the intended use of the funds.

If other terrorist attacks were to occur in the future, Congress might ask for and

require data on total federal obligations from the responding agencies in order to

monitor the flow of federal funds and establish funding priorities. The need or

usefulness of such an extensive database, however, might be debated. Such a

database could help Congress estimate the funding that might be needed and to

allocate funds among competing accounts. However, the establishment of a data

baseline on past and ongoing expenditures might arguably be unnecessary as

Congress would likely meet all eligible costs for which victims are entitled to receive

assistance.

Near unanimous statements have been issued by officials and analysts that other,

more costly, attacks should be anticipated. Accordingly, it may be necessary for

Congress to begin to collect information on disaster assistance payments in order to

make decisions regarding disaster costs. For example, Congress might use the

information to set priorities among needs unmet due to a variety of reasons, including

the type and extent of damage suffered by a community or the potential threat of

future attacks.157 The information might also be used to reassess budget priorities,

evaluate the future viability of cities damaged by nuclear attacks, or make other

difficult decisions.

Background. FEMA is only one of several federal agencies that provide

federal disaster assistance after terrorist attacks and other disasters. Depending on

the type of devastation and the area affected, the Departments of Agriculture,

Defense, HUD, Commerce, and Transportation, the SBA, and the Environmental

Protection Agency (EPA) are among other federal agencies that have obligated and

will continue to obligate billions of dollars for disaster assistance. While data on

disaster obligations are generally maintained and available from each federal

department or agency, total federal disaster assistance obligations are not collected

or disseminated on a regular basis.

Following devastating disasters in 1989 and the early 1990s (Hurricane Hugo,

the Loma Prieta earthquake, Hurricane Andrew, the Midwest floods), some Members

of Congress expressed concern about the rising costs of federal disaster assistance.

Bipartisan leadership task forces were established in both the House and the Senate

156

157

“Report on Expenditures from the Emergency Response Fund.”

Reconstruction of the WTC complex in lower Manhattan could invite future “copycat”

attacks. See: Blair Kamin, “Skidmore Eyes Huge Skyscraper to Replace NYC’s Twin

Towers,” Chicago Tribune, June 6, 2002, p. 1.

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in 1993 to collect data and consider policy options. The reports issued by the task

forces provided comprehensive information on federal disaster costs and policies.

The House Task Force on Disasters recommended that Congress seek data on

disaster costs as follows:

Congress should request data on the cost of all phases of disasters, including the

cost to federal taxpayers of the tax deduction for casualty losses from disasters.

This information has never been comprehensively gathered, and as a result it is

not known how much the nation pays for all phases of disasters, particularly the

recovery phase which can take several years.158

The report issued by the Senate Task Force on Funding Disaster Relief, published

more than a year after the House report was completed, contained perhaps the most

comprehensive information on federal disaster assistance costs that has yet been

compiled. The Senate report included the results of a survey conducted by the

General Accounting Office of federal disaster assistance obligations made from fiscal

year 1977 through 1993.159 Table 2, below, presents information drawn from that

compilation for the 10-year period FY1984-FY1993. Data are presented for federal

programs in accordance with the four major phases of disaster assistance:

preparedness, mitigation, response, and recovery.

158

U.S. Congress, House Bipartisan Task Force on Disasters, Report [unpublished]

(Washington: Dec. 14, 1994), p. 12.

159

U.S. Congress, Senate Bipartisan Task Force on Funding Disaster Relief, Federal

Disaster Assistance, S. Doc. 104-4, 104th Cong., 1st sess. (Washington: GPO, 1995).

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Table 2. Federal Disaster Assistance Obligations, FY1984-1993

(millions of dollars)

Fiscal

year

Preparedness

Mitigation

Response

Recovery

Total

1984

104.8

1,564.6

48.4

2,367.9

4,085.7

1985

92.9

1,466.3

28.0

1,328.6

2,915.7

1986

77.6

1,368.3

82.4

1,733.0

3,216.3

1987

77.3

1,423.9

55.4

1,515.0

3,071.6

1988

76.6

1,414.5

28.1

742.7

2,261.9

1989

71.9

1,430.8

252.0

6,326.5

8,081.8

1990

65.8

1,446.7

281.9

4,791.6

6,586.0

1991

69.1

1,424.6

69.9

1,230.4

2,794.0

1992

65.1

1,449.9

678.3

4,460.6

6,654.0

1993

62.3

1,289.6

475.7

4,828.3

6,655.9

Source: U.S. Congress, Senate Bipartisan Task Force on Funding Disaster Relief,

Federal Disaster Assistance, S. Doc. 104-4, 104th Cong., 1st sess. (Washington: GPO,

1995), p. 5.

The data collected for the Senate task force report provides a snapshot of costs,

a picture of federal funding that had previously not been available. Some may

perceive the data in the Senate task force report to have little relevance to the needs

of the 107th Congress, and future Congresses, as budget needs and priorities are

considered and established. On the other hand, one researcher who has long

considered the issue of emergency management policies and activities asserts:

What is needed is a comprehensive database that contains information

about (1) current levels of vulnerability to natural hazards on national and local

scales, (2) compilations of past losses, and (3) the costs of pre-event mitigation

activities.... Previous loss records only indicate in a general way the overall scale

and scope of the problem. Monetary losses have not been systematically

assessed, nor have the economic ramifications of a disrupted social structure

been compiled. The next generation requires better delineation of the types and

extent of losses in specialized categories. A national loss inventory would

document losses from past and current natural disasters, thereby establishing a

baseline for comparison with future losses. Data on the type of loss, location,

specific cause of the loss, and actual dollar amounts needs to be compiled in a

uniform fashion for across-hazards comparisons.160

160

Dennis S. Mileti, Disasters by Design (Washington: Joseph Henry Press, 1999), p. 102103.

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Policy Options. If Congress wished to require the collection and

dissemination of federal disaster assistance costs, including those costs associated

with terrorist attacks, Members might could consider the following options.

Maintain the Status Quo. Congress might take no legislative action and

rely on periodic surveys such as the one completed by GAO and published in 1995

by the Senate, or on special reports issued by OMB pursuant to legislative mandates

such as those included in P.L. 107-38.

Pro. Some may argue that the costs associated with the collection of the

information would be better spent on disaster assistance itself or on other needs.

Historically, Administration requests for disaster funding are not contentious issues

of debate in Congress, and some may contend that, regardless of the costs, Congress

will appropriate funds needed for disaster recovery.

Con. Escalating costs involved in the terrorism conflict may require Congress

to make difficult decisions among high level priorities. A lack of systematic data on

federal assistance after terrorist attacks might complicate the establishment of budget

priorities. If, as directed by the President, the proposed Department of Homeland

Security (DHS) coordinates a national strategy to combat terrorism, the existence of

comprehensive data could enable Congress to better evaluate and decide among

Administration budget requests.

Require OMB to Collect and Report Data. Legislation might be

considered to require OMB to collect data on federal disaster assistance costs each

year and publish the information in the Budget Appendix.

Pro. OMB receives expenditure data from all federal agencies in order to

compile the President’s budget each year. As part of that process, OMB could direct

agencies to provide data in a standardized format on emergency management

expenditures (obligations, outlays, or bot

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