ML19308C325
| ML19308C325 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/30/1977 |
| From: | GENERAL SERVICES ADMINISTRATION |
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| References | |
| TASK-TF, TASK-TMR NUDOCS 8001220726 | |
| Download: ML19308C325 (24) | |
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recera Res30nse 3 an "or Peace:ime l\\ uc ear
.mergencies
( Interim Guidance )
ANNEX An Analysis of Legal Authorities in Support of the Federal Response Plan for Peacetime Nuclear Emergencies April 1977 General Services Administration i
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Federal Preparedness Agency
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FEDERAL RESPONSE PLAN t
FOR
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PEACETIME NUCLEAR EMERGENCIES (INTERIM GUIDANCE)
ANNEX II--AN ANALYSIS OF THE LEGAL AUTHORITIES IN SUPPORT OF THE FEDERAL RESPONSE PLAN FOR PEACETIME NUCLEAR EMERGENCIES (FRPPNE)
APRIL 1977 GENERAL SERVILt DMINISTRATION FEDERAL PREPAREDNESS AGENCY e
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The Federal Response Plan for Peacetime Nuclear Emergencies (FRPPNE) suggests a wide range of actions which may be appropriate in responding to the broad spectrum of percetime nuclear emergencies. To assure that these actions can be legally implemented if the need arises, this annex analyzes the various actions either specified in or suggested by the FRPPNE and j
identifies the legal authority available to permit prompt j
effectuation of those actions.
The following analysis is divided into a discussion of the responses anticipated for each of the 4 categories of peacetime nuclear emergencies as delineated in the FRPPNE.
I Category I Category I.
A nuclear incident with effects which are minor and localized, and are manageable under existing peacetime arrangements with resources readily available, and without recourse to extraordinary measures. This category also includes those minor incidena or accidents under civil or military agency cognizance.
The Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, appear to provide sufficient authority to permit the Nuclear Regulatory Commission and the Energy Research and Development Administration, with support from other agencies, if necessary, to take such actions as would be I
appropriate and required in a Category I type emergency.
The Atomic Energy Act provides for the' complete ' control, by I
regulation or licensing, of atomic energy, nuclear weapons, special nuclear materials, source material, byproduct material, l..
and of utilization and production facilities and research and development faci.tities relating to those items. (For ' definitions
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of those terms, see Section 11 of the Atomic Energy Act (42 U. S. C. 2014)).
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Sections 11 and 101 of that Act require that all production facilities be owned by the United States Government. The only exceptions are for research and development facilities that lack a capacity to produce, within a reasonable amount of time, a sufficient quantity of special nuclear material to -
produce a nuclear weapon, and facilities that are licensed under the Act and comply with standards prescribed pursuant to the Act.
Section 92 of the Act provides that no person, except as provided by section 91 of the Act, may transfer or receive in interstate commerce, transfer, deliver, acquire, own, possess, receive possession of or title to, or import into, or export from, the United States, any nuclear weapon. Section 57 and section 101 contain similar prohibitions with respect to special nuclear materials and to utilization and production facilities respectively unless authorized by license under the Act.
Section 53 of the Act provides express conditions for those licenses, and among those conditions are "(6) special nuclear material shall be distributed only on terms, as may be established by rule of the Commission, such that no user will be permitted to construct an atomic weapon," and "(7) special nuclear material shall be distributed only pursuant to such safety standards as may be established by rule of the Commission to protect health and to minimize danger to life and property. "
Section 170 requires operators of licensed facilities to obtain liability insurance and provides for indemnification, up to a fixed limit, by the Government for liability in excess of the level of financial protection required.
7 The above-described provisions are but illustrative of the 2
many provisions of the Act which effectively control and regulate every facet of nuclear energy activities in this country and of
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the Congressional concern for public safety in every facet of those activities.
Under the Atomic Energy Act, the Atomic Energy Commission was charged with the responsibility for administering all provisions r
of that Act. However, the recently enacted Energy Reorganization 2
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Act of 1974 (approved October 11, 1974; P. L.93-438) abolished that Commission and created two new agencies--the Nuclear Regulatory Commission and the Energy Research and Development Administration--and split the functions under the Atomic Energy Act between those agencies. The Nuclear Regulatory Commission was assigned all of the licensing and related regulatory functions under the Act. Sections 203 and 204 of the Energy Reorganization Act reemphasized the concern of Congress with public safety in the nuclear field by establishing within the new Commission a new Office of Nuclear Reactor Regulations and a new Office of Nuclear Material Safety and Safeguards. It charged the first with reviewing all safety and safeguards of all licensed facilities, mate rials, and activities, and charged the latter with developing contingency plans for dealing with threats, thefts, and sabotage relating to special nuclear materials, high-level radioactive wastes, and nuclear facilities resulting from all activities licensed under the Atomic Energy Act of 1954, as amended.
l The Atomic Energy Act of 1954, as amended, together with the Energy Reorganization Act, give the Energy Research and l
Development Administration the primary responsibility for safety and safeguards at facilities under its control, and the Administration is responsible for responding to any Category I emergencies at those facilities. Nothing, of course, bars those agencies from developing cooperative arrangements under which each would assist the other as circumstances and capabilities may warrant. Similarly, no apparent legal barrier precludes rmch Federal agencies as the DOD and EPA from assisting either or both of those agencies in responding to a Category I emergency.
Fu rthe rmo re, Section 274 calls for cooperation between the Federal Government and State and local governments with respect l
to nuclear activities and radiation hazards.
l Section 91b of the Atomic Energy Act of 1954, as amended (42 U. S. C. 2121b) authorizes the President to direct ERDA to deliver special nuclear material or nuclear weapons to the l
Department of Defense for such use as he deems necessary in l
the interest of national defense. He is also authorized to direct ERDA to permit that Department to manufacture,' produce, or
. acquire nuclear weapons or utilization facilities for military 3
6 The Department of Defense, as custodian of those purposes.
weapons, facilities, and materials, is primarily responsible for their protection and for maintaining effective safety and safeguards ivith respect to them in conformity with the provisions of the Atomic Energy Act and other provisions of law relating to the protection of Government property.
Consequently, if a Category I incident occurs, involving nuclear weapons / materials in the custody of the Department of
'Jefense, the DOD has the authority and responsibility to respond with such corrective actions as may be warranted by the situation. Furthermore, no legal barrier prevents other Federal agencies or State and local agencies from assisting the DOD in any such emergency.
In view of the foregoing, there appears to be no lack of legal authority to respond to Category I emergencies and, to the i
contrary, there is a legal obligation imposed upon the NRC and ERDA to take pri mpt and effective corrective measures in each such case involving nuclear facilities or materials under their respective jurisdictions.
Category Il Category II. A nuclear incident which, without adequate preventive or response measures, has the potential of producing a nuclear detonation and/or widespread radioactive contamination.
This category contains events which require plans and procedures for responding to potential threats such as:
-- the threatened unauthorized use, by terrorists, criminals or deranged persons, of a nuclear weapon, device or other nuclear materials for extortion or sabotage;
-- the theft of nuclear materials or weapons by terrorists, criminals or deranged persons; A
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-- an accidental or unauthorized launch of t nuclear weapon by means of a missile or other delivery sysiem with the potential for impacting in the United States. Such a launch could occur with littic or no warning and could come from within or outside the United States;
-- a major accident at a nuclear power reactor or in the transportation of nuclear maierials with a potential for wide-spread hazard or damage to humans, property and the socio-economic structure of the affected area.
Incidents described above, if not prevented er countered, have the potential for creating a catastrophic peacetime nuclear l
emergency which would probably require Presidential actions to achieve a coordinated Federal response following such an event.
Responding to the contingency of nuclear extortion, theft and sabotage will involve the need for locating and apprehending the terrorists, criminals, or deranged persons who constitute the threat, and of locating and neutralizing the weapons or devices involved or restoring the facilities involved to the control of authorized persons.
Any threat involving the misuse of a nuclear weapon, special nuclear materials, or dangerously radioactive material, or facilities for the production, utilization, transportation, protection, l
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or storage of those items would constitute a violation of
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provisions of the Atomic Energy Act.
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For example, Section 57 (42 U. S. C. 2077) prohibits the acquisition, ownership, possession, transfer, delivery, importation, or exportatiod of special nuclear material without a license from the NRC. Section 62 contains a similar prohibition with respect to source materials, Section 81 with respect to byproduct i
materials, and Section 101 with respect to utilization and l..
production facilities.
l Section 92 prohibits any person, other than ERDA or the DOD, from cwning, possessing, acquiring, transferring, importing, or exporting any nuclear weapon.
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Section 183 authorizes the NRC to specify the terms and condi-tions under which each license is granted and prohibits its assign-ment or transfer.
Section 221(b) directs the Federal Bure tu of Investigation to investigate all alleged or suspected criminal violations of the Act.
Section 222 provides fines and imprisonment for any one who willfully violates, attempts to violate, or conspires to violate, the provisions of Sections 57, 92 or 101. Section 223 provides fines and imprisonment for willfull violations, attempts to violate, or conspiracies to violate any provisions of the Act for which no other criminal penalty is specifically provided or for violation of any regula'. ions or orders prescribed or issued under Section 65 or subecctions b, i, or o of Section 161 of the Act.
Section 274 authorizes the NRC to enter into agreements with States providing for discontinuance of regulatory authority over by-product, cource, and special nuclear material in quantities not sufficient to form a critical mass.
In addition, any such event would probably constitute violations of 18 U. S. C. 231 (civil disorders), 241 (co'nspiracy against rights of citizens), 641 (theft or conversion of Government property), 832 (transportation of explosives, radioactive materials, etc. ), 875 (interstate communications), 1361 (Government property or contracts), 1362 (communication lines, stations, or systems),
2383 (rebellion or insurrection), and 2384 (seditious conspiracy).
Other statutes which may be violated include: 18 U. S. C. 2151-2156 and 50 U. S. C. 797 (sabotage); Section 3, Articic 3, U. S.
Constitution, and 18 U. S. C. 2381 (treason as by terrorists who
" levy war" against the U. S. A. ); 18 U. S. C.
I11, 372, 1114, 2231 (Assaulting or Killing a Federal Officer); 18 U.S. C. 245(b)(3);.
2101, 2102 (Anti-Riot Laws).
18 U. S. C. 3052 authorizes the FBI to make arrests for offenses against the United States.
26 U. S. C. 533 authorized the Attorney General to appoint persons to detect and prosecute crimes against_the United States and to conduct investigations regarding official matters under the
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control of the Department of Justice.
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As noted before, Section 221 b of the Atomic Energy Act directs the FBI te investigate alleged or suspected violations of that Act.
Accordingly, there can be no doubt that the Attorney General, operating thrcugh the FBI, and other appropriate personnel in the Department of Justice or in other Executive departments, has the authority to investigate any alleged or suspected violation of the Atomic Energy Act or any provision of Title 18 of the United States Code, and to arrest any person involved in any such violation Technically, the FBI would also be 1cgally responsible for locating any nuclear weapon or radioactive materials and for restoring nuclear facilities to their rightful custodians just as they are responsible for locating and neutralizing conventional weapons, such as hand guns, rifles, high explosives, etc., involved in Federal criminal offenses.
However, in view of their unique responsibiUties under the Atomic Energy Act, as affected by the Energy Reorganization Act, it would be more realistic to expect the NRC, ERDA, and DOD to assist the FBI in locating and subsequently neutralizing any nuclear weapon or dangerously radioactive material, or in restoring any licensed facility or material to its lawful custodians by providing technicians, expertise, special equipment, or otherwise for that purpose.
While the FBI and supporting agencies are performing those func tion s, the Federal Disaster Assistance Administration of the Department of Housing and Urban Development should, under the provisions of Section 202 of the Disaster Relief Act of 1974, be notifying appropriate State and local officials and endangered persons or a potential major disaster. The DHUD should also begin preparations to respond to any " emergency" or " major disaster" that might be declared by the President pursuant to Section 301 of that Act if the threat is not successfully terminated.
Nuclear incidents involving the accidental or unauthorized launch of a nuclear weapon by means of a missile or other delivery system will, 'due to the time sensitivity, result in only a limited number of actions or responses that could be instituted during the brief interval that would be involved. The actions that would be 7
involved include: (1) confirmation of the launch of a nuclear weapon and its impact in this country; (2) confirmation that only one launch was involved and that it was accidental; (3) determination, if possible, of the probabic impact area; (4) instant notification of the President and appropriate officials of the launch and of all available details relating thereto; (5) determination by the President of the posture to be taken by the military and civilian components of the Government with regyddu the foreign govern-ment involved; (/-) notification of Governors and other State and local officials and warning of the public of the potential disaster; (7) issuance of directions to assure immediate effectuation of Federal relief and rescue responses and of other Federal response desir ned to alleviate panic and disorder and to restore essential public services if a detonation occurs; and (8) presentation for the consideration of the President of all documents needed to assure the d
effectuation of all pertinent Federal responses in that event.
1 Article II of the Constitution of the United States vests in the President, as Chief Executive and Commander-in-Chief, the broadest of powers to deal immediately with any sudden and unexpected emergency that might jeopardize the security or safety of this Nation and of its peopic, especially if the threat results from an attack, intentional or unintentional, from an external source. Similarly, that Article grants almost limitless authority to the President with respect to the conduct or diplomatic and military relations and other negotiations with foreign govern-ments in a time of a crisis such as would exist in this Category II type of emergency.
In recognition of the President's responsibilities in this regard and in recognition of the danger of the occurrence of any emergency of the type contemplated in a Category II peacetime nuclear emergency, the Congress has enacted a number of statutes, such as the National Security Act of 1947 (50 U. S. C. App. 4 01, et seg, ); the Defense Production Act of 1950, as amended, the Federal Civil Defense Act of 1950 (50 U. S. C. App. 2251, et seq. )
and the Disaster Relief Act of 1974, each of which may permit the development of contingency plans for dealing with catastrophes' of a nuclear origin. Section 202 of the Disaster Relief Act of 1974 specifically provides for warnings to State and local officials and to the public of impending disasters and authorizes the use 8
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. of the civil defense warning system for that purpose. The authority of the President, the Department of Defense, the State Department, and other Federal agencies involved, to respond to an emergency such as is characterized in this contingency, is fully ade'quate to cover this situation.
I Another contingency included under a Category II incident is a major accident at a nuclear power reactor or in the trans-portation of nuclear weapons / materials which could result in MMb widespread hazard or damage to humans and property. The authority of the President and the Federal agencies involved to respond to such an emergency appears cicar with no lack of legal authority to respond to the needs of this contingency. (See description of Category I legal authority mentioned earlier. )
Category III Category III. An occurrence, in which despite all preventive.
and controlling efforts, an actual nuclear detonation and/or widespread dispersal of radioactive contamination has occurred within the 'J. S.
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This type of emergency would, when major property damage and/or a large number of casualties are involved, necessitate the institution of numerous extraordinary actions affecting not only governmental agencies, but also much of the public. The emergency measures would fall into three rtiajor groupings:
(1) Prompt implementation of actions to minimize death and suffering from the detonation or from radioactive contamination, such as sheltering affected population and undertaking radiological defense and other emergency operations, including relief and rescue of injured and uninjured persons in the affected area.
(2) Maintenance of law and order, prevention of looting.
and panic, and preclusion of traffic in contaminated property.
(3) Maintenance of the stability of the economy, particularly in the fields of banking and international financial transactions, marketing of securities and commodities, and utilization of essential materials and services.
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In the event of an accidental detonation of a nuclear weapon or device in this country, resulting in major property damage and/or a large number of casualties, it is reasonable to assume that the President will issue a proclamation declaring the existence of a state of national emergency. That declaration, by itself, would confer no new legal authority upon the President or any Federal agency, flowever, over the last 40 years, the Congress has enacted a multitude of statutory provisions, the authority of which j
may be exercised only in time of war, or national emergency proclaimed by the President or the Congress. (The most recent comprehensive listing of those emergency provisions is set forth in Senate Report 93-549. )
All but one of the provisions effectuated by a Presidential declaration of national emergency are now operative as a result of the national emergency proclaimed by Pre sident Truman (Proc. 2914 of December 16, 1950), and remfirmed by him (Proc. 2974 of April 28, 1952). That national emergency was reaffirmed by President Eisenhower (E. O.
10896 of November 29, 1960. and E. O. 10905 of January 14, 1961) and by President Kei.nedy (E. O. 11037 of July 20, 1962), and its continuance was alluded to by President Johnson (E. O. I1387 of January 1, 1968).
President Nixon proclaimed two new national emergencies--the first in connection with a strike of employees of the Postal Service (Proc. 3972 of March 23, 1970) and the second in connection with international balam e of payments measures (Proc. 4074 of August 15, 1971).
The one apparent exception to the foregoing is 10 U. S. C. 673, relating to the call up of the military ready reservists, which is operative only in times of national emergency proclaimed after January 1, 1953. Since the Truman proclami. tion does not activate 10 U. S. C. 673, that provision is now operative only if one of the Nixon declarations is still in effect which, at best, seems doubtful.
Consequently, the proclamation of a new national emergency would have little, if any, legal effect except for the possible effectuation of the provisions of 10 U. S. C 673. Even assuming the effectuation of.10 U. S. C. 673, it seems doubtful that reservists would be called up pursuant to that authority in a Category III emergency.
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In any event,. the issuance of a new declaration of a state of national emergency would still be quite beneficial in apprising the public of the gravity of the situation, galvanizing public support for massive relief and rescue efforts, public and private, and foreclosing any arguments concerning the continuance of the i
1950 national emergency or the national emergencies proclaimed by President Nixon.
l Section 101 of the National Emergencies Act (P. L.94-412; 5 0 U. S. C. 1601, et seq. ; 90 Stat. 1255), in effect, terminates, as of September 14, 1978, all national emergencies which have been declared by the President and which were in effect on the date of j
enactment of that Act, September 14, 1976. However, Section j
502(a) of that Act lists ten vital statutory provisions, including Section 5(b) of the Act of October 6,1917, as amended (12 U. S. C.
95a; 50 U. S. C. App. 5(b)), and specified procurement and defense provisions, to which the provisions of the National Emergencies Act do not apply. Consequently, the enactment of that Act has no immediate impact upon existing legal authority to effectuate
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responses under FRPPNE, and prchably will never conW.tute a significant impediment to the effectustion of those responses.
Conversely, the enactment of the National Emergencies Act may prove beneficial by conferring Congressional approval to the i
indefinite use of the statutes listed in Section 502(a) and the continued use, until September 14, 1978, of all other national emergency statutes except, possibly, 10 U. S. C. 67 3.
Should the need arise after September 14,-1978, to declare a national emergency involving statutory provisions other than those listed in Section 502(a) of the National Emergencies Act, the impact of the Act is that the President.will be required by Section 301 of that Act to specify. cither in his National Emergency declaration or in one or more contemporaneous or subsequent Executive orders, those provisions of law under.which he will act.
If the Congress is not in session, 'it is almost a ' certainty that the President wily pursuant to Section 3 of Article II of the Constitution, convene the Congress at the earliest possible time to receive communications from the President (see, for example, Proc. 2796 of July 15, 1948).
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The President could, upon a request of the Governor or Governors concerned, declare a major disaster under the provisions of the Disaster Relief Act of 1974 Section 102(b) defines a " major disaster" as "any hurricane, tornado.... fire, explosion, or other catastrophe in any part of the United States which, in the determination of the President, causes damage of sufficient severity and magnitude to warrant major disaster assistance under the Act.... " A nuclear detonation would certaintly constitute an " explosion" within the meaning of that definition and the devastation that would result therefrom would certainly warrant major disaster assistance under the Act.
The President's determination of the existence of a major disaster could be made in the usual form of a communication to the Secretary of HUD, or it could be made in the form of a Presidential proclamation. Consideration might be given to the use of a proclamation since that would tend to put the President more clearly in charge of the disaster rescue and relief activities.
It would also tend to eliminate any reluctance that Federal agencies might have to make their resources available for disaster activities under the provisions of Section 306 of the Disaster Relief Act, a
Once the President has declared the existence of a " major disaster", whether by the usual communication to the Secretary of HUD or by a special proclamation, the full sweep of disaster relief, and assistance activities authorized or permitted
- rescue, by the Disaster Relief Act of 1974 would become available. Any funds available in the Disaster Relief Act Appropriation account could be used to defray the costs of those activities. And, as noted
- above, Section 306(a) of that Act authorizes Federal agencies, on direction of the President (or the Secretary of HUD under a delegation of authority conferred by E. O. 11795 of July 11, 1974), to provide assistance by:
(1) utilizing or lending, with or without compensation therefor, to State and local governments, their equipment, supplies,-
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facilities, personnel, and other resources, other than the extension of credit under the authority of any Act; (2) distributing or rendering, through the American National Red Cross, the Salvation Army, the Mennonite Disaster Service, and other relief and disaster assistance organizations, or othe r wis e, medicine, food and other consumable supplies, or emergency assistance; (3) donating or lending equipment and supplies, including that determined, in accordance with applicable laws, to be surplus j
to the needs and responsibilities of the Federal Government, to State and local governments for use or distribution by them for the purposes of this Act; and (4) performing, on public or private lands or waters, any emergency work or services essential to save lives and to protect and preserve property, public health and safety, including but not limited to: search and rescue, emergency medical care, emergency mass care, emergency shelter, and provisions of food, water, medicine, and other essential needs, including movement of supplies or persons; clearance of roads and construction of temporary bridges necessary to the performance of emergency tasks and essential community services; provision of temporary facilities for schools and other essential community services; demolition of unsafe structures that endanger the public; warning of further risks and hazards; public information and assistance on health and safety measures; technical advice to State and local governments on disaster management and control; reduction of immediate threats to life, property, and public health and safety; and making contributions to State and local governments for the purpose of carrying out the provisions of this paragraph.
Section 306(b) of that Act expressly provides that work performed under that section shall not preclude additional Federal-assistance.
under any other section of the Act. In effect,- Section 306 permits the commitment of. all available disaster funds and all available Federal resources to recovery efforts under the Act.
The scope of the President's authority under other provisions -
of that Act is equally broad. Section 305(a) authorizes the President (the Secretary of IIUD by delegation) to provide assistance.to~ save
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lives and protect property and for public health and salety, and Section 305(c) authorizes the President to provide such other assistance under the Act as he deems appropriate. Section 313(a) permits priority and immediate consideration to be given to applications for assistance from public bodies situated in areas affected by the disaster under specified housing, public works, and water pollution statutes. Section 318 authorizes the President to provide for the allocation of construction materials including building materials and materials needed for housing repair and replacement, public facilities repair and replacement, and for other forms of business operations. Section 401 permits the President to authorize Federal agencies to repair, reconstruct, restore, or replace any facility owned by the United States or under the jurisdiction of any such agency which is damaged or destroyed by the disaster. If funds are unavailable for that purpose, the situation may be remedied by the transfer of other available funds.
Section 402 authorizes the President to make contributions to State and local governments to help repair, restore, reconstruct, or replace public facilities belonging to those State or local governments. He can make similar contributions for similar purposes for private, nonprofit educational, utility, emergency, medical, and custodial care facilities. Section 403 authorizes debris removal.
With respect to individuals, Section 404 authorizes the President to provide, either by purchase or lease, temporary housing, including rental housing, mobile homes, and readily fabricated dwelling s.
Section 407(a) authorizes payments of unemployment assistance. Section 408 authorizes grants to States for making grants to meet disaster-related necessary expenses or essential needs of individuals or families. Section 409 authorizes the distribution of food coupons under the Food Stamp Act.
Section 414 authorizes the President to make loans to local governments which have suffered a substantial loss of tax and other revenue as a result of the disaster.
On the basis of the foregoing, it is difficult to conceive of any -
legitimate rescue, relief, or assistance activity that would need to be performed in the period immediately after the occurrence of a 14 4
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Category III emergency that could not be instituted under-the authority conferred by the Disaster Relief Act of 1974.
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A brief statement concerning-the Federal Civil Defense Act of 1950 appears appropriate at this point. ~ This Act was designed
, to cope with emergencies arising out of an attack upon this country z
by an enemy of the United States. It would.seem irappropriate to
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characterize an accidental or unauthorized launch of a nuclear weapon as an enemy attack. Other types of detonations contemplated by a Category III emergenc.y would be even less susceptible to fulfilling the triggering language of that Act. Furthermore. Title III of that Act,' the title providing emergency powers during a " civil.
defense emergency", expired on June 30, 1974, and has nc' been '
extended by the Congress.
Consequently, that Act cannot be relied upon as authority to respond to this type of emergancy. Ho we ve r,
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l this fact in no way precludes or inhibits.the full utilization of the services and the resources of the Defense Civil Preparedness Agency 4
during a major disaster declared under the Disaster Relief Act of 1974. State and local government civil defense _ organizations, and resources acquired by them for civil defense purposes, could als'o be used in a Category III peacetime nuclear emergency, under
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State and local legislation and authorities.
Section 201 of the Disaster Relief Act of '1974 expressly authorizes the President to utilize the services of the DCPA in major disasters and, under Section 306 of that 'Act, all available '
L resources acquired pursuant to the Civil Defense Act could be utilized in connection with any such disaster. The. authority conferred -
by Section 306 of the Disaster Relief Act of 1974 would also permit the use of military and other Federal installations and facilities as temporary housing for persons evacuated from the disaster area. The powers available under the Disaster Relief Act of 1974, including the authority to commit all available Federal resources, therefore, appear to provide abundant legal authority to carry out all Federal disaster rescue, relief, and assistance activiti'es that might be needed in the immediate period after an emergency of this type has occurred 4
'The omission of a discussion of the authority of' the Small Business-Administration to make disaster loans, of the Dep'artment
-of Agriculture to. provide livestock feed in emergencies, and'of other-agencies to provide specific. classes of emergency l assistance is not 15.
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intended to suggest that those authorities will not be exercised, if appropriate, in this type of emergency. It merely means that all foreseeable initial Federal rescue, relief, and assistance responses could be effectuated under the provisions of the Disaster Relief Act of 1974.
The Federal role following a nuclear detonation in maintaining or restoring law and order, preventing looting and panic, and precluding traffic in dangerously radioactive property is discussed in the following section.
Under our Constitutional form of government, the States have the primary responsibility for law enforcement within their borders.
Federal law enforcement is largely confined to crimes involving Federal personnel and property, crimes committed on property owned or controlled by the United States, crimes involving interstate or foreign commerce, crimes involving the national security and military service, and crimes involving Federal revenues and funds.
1 In the early years of this Nation under the Constitution, the Congress, in recognition of the role of the States in the field of law enforcement, enacted legislation under which the President could provide Federal military assistance to the States in situations in which their forces were inadequate to enforce the laws of the State or of the United States within the State (Act of February 28, 1795, 1 Stat. 424). In 1861 and 1871, the Congress enacted supplemental provisions which permit the President to use the militia, the armed services, or any other means to suppress in any State any insurrection, domestic violence, unlawful combination, or conspiracy, if it hinders the execution of State laws or obstructs the execution of Federal laws (Act of July 29,1861 (12 Stat. 281);
Act of April 20, 1871 (17 Stat. 14)).
Today, those provirions are codified as sections 331-336 of title 10 of the United States Code. Those sections read as follows:
"331.
Federal aid for State governments.
"Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature,.
or of its governor if the legislature canaot be convened,' call into 16
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Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.
4 "332.
Use of militia and armed forces to enforce Federal authority.
"Whenever the President considers.that unlawful
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obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
"333.
Interference with State and Federal law.
"The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers.iecessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it--
"(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or. refuse to protect that right, privilege, or immunity, or to give that protection; or
"(2) opposes or obstructs the execution of the laws of the United Statc or impedes the course of justice under those laws.
"In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
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"334.
Proclamation to disperse.
"Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.
"335.
Guam included as ' State'.
"For purposes of this chapter, ' State' includes the unincorporated territory of Guam.
"336.
Virgin Islands included as ' State'.
"For the purposes of this chapter, ' State' includes the unincorporated territory of the Virgin Islands. "
At the request of the Governors concerned, this authority was used in 1967 and 1968 to suppress disorders and to protect Federal property in Chicago, Illinois (Proc. 3841 of April 7, 1968 and E. O. 11405 of April 7, 1968), Baltimore, Maryland (Proc. 3842 of April 7, 1968 and E. O. 11405 of April 7, 1968), and Detroit, Michigan (Proc. 3795 of July 24, 1967 and E. O. 11364 of July 24, 1967).
If a law enforcement situation develops in a State which the Governor determines cannot be controlled by law enforcement and militia (National Guard) personnel available to him, he may request the President to provide Fedt cal assistance. If the President concurs in the Governor's determination and if Federal resources are available, the President may. direct the Secretary of Defense to take all necessary steps to restore order and assure compliance with State laws and regulations, particularly'those designed to prevent looting, panic, and traffic in areas where there are dangerously radioactive materials.
In the unlikely event that there is no Governor nor anyone else who can act as Governor to request Federal assistance under section 331, the President could, under sections 332 and 333, still use the militia, the armed forces, or any.other means to restore order in the affected area. This action would be similar to the actions taken by President Eisenhower (Proc. 3704 of September 23, 1957; E. O. 10730 of September 24, 1957) and by President Kennedy 18
(Proc. 3497 of September 30, 1962; and E. O. 11053 of September 30, 1962) to suppress forceful opposition to the enforcement of Federal court desegregation orders. Those actions were taken without a request from the Governors concerned since those Governors were aiding and abetting the persons opposing the enforcement of those court orders.
Proper use of the provisions of sections 331-336 of title 10 would avoid any possible situation in which the President would ever have to consider proclaiming martial law or martial rule.
If martial law or martial rule is to be proclaimed in any disaster area, that action should be taken by the Governor concerned.
Consequently, State and local governments are expected to institute such measures as may be needed to prevent looting, panic, and traffic in contaminated property, and for the maintenance of condi-tions in which rescue, relief, and recovery responses can be effectuated without undue hinderance. If a Governor needs assistance in performing that duty, he may request Federal assistance under 10 U. S. C. 331.
If the President determines that he needs to mobilize members or units of the military reserves, other than in a situation in which he is taking action under 10 U. S. C. 331-336, he would have ample authority to do so und.:- 10 U. S. C. 673 or under 10 U. S. C. 3500 and 8500. These provisions were relied upon when President Nixon directed the call up of reservists during the strike of Postal Service employees (see Proc. 3972 of March 23, 1970, and E. O. 11519 of March 23, 1970).
Aside from la v enforcement at the State and local level, which is the primary resoonsibility of those governments with possible assistance from the Federal Government, there may be a need for extraordinary efforts to preclude the introduction into interstate and foreign commerce of items', particularly food, that are dangerously contaminated by radioactive material. The provisions of the Food, Drug, and Cosmetic Act (21 U. S. C. 301, et seq. ) ind the Federal Hazardous Substances Act (15 U.S. C.
1261) confer -
broad authority upon the Secretary of HEW to control distribution of dangerously contaminated substances. In addition, the Federal -
Meat Inspection Act (21 U. S. C. 601, et seq. ), the Wholesome Poultry 19
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Products Act (P. L.90-492, 82 Stat. 791, 21 U. S. C 451, et seq. ), and the Egg Products Inspection Act (91-597; 84 Stat.
1620, 21 - U. S. C.
1031, et seq. ) confer similar broad authority upon the Secretary of Agriculture to prevent contaminated food from reaching consumers. These statutes, coupled with statutes administered by regulatory agencies to prevent shipment of dangerous cargos on interstate carriers (see, for example, 4 9 U. S. C. 1(15)), should provide ample legal authority to permit the effectuation of all necessary measures to control or prevent the interstate movement of radioactiveli contaminated items in I
the immediate period after a contamination--especially if the l
State or States involved take steps to co strol or prevent such movement within their borders.
Finally, we come to those measurer that may be necessary to ameliorate the effect of the disaster upon the economy, particularly the economy of the afflicted area and its peopic.
Section 4 of the Act of October 9, 1933 (12 U. S. C. 95) and Section 5(b) of the Act of October 6,1917, as amended (12 U. S. C.
95a), confer broad authority to regulate member banks of the Federal Reserve System, and to control banking transactions and international financial transactions, respectively. This authority should be sufficient to perm.t the Secretary of the Treasury to take such actions as may be needed to stabilize banks, banking transactions, and international financial transactions. In addition, the Federal Reserve Act (12 U. S. C. 221, et seq. ) confers comparably broad authority upon the Board of Governors of the Federal Reserve System to deal with any instability of any Federal Reserve member bank (see, for example, 12 U.S. C. 248(h) aed (j)).
Further nore, the Federal Saving and Loan Insurance Corporatun (12 U. S. C.
1724, et seq. ), the Administra' tor of the Nations! Credit _ Union Share Insurance Fund (12 U. S. C. 1781, et seq. )
and the Federal Deposit Insurance Corporation (12 U. d. C.
- 1811, et sog. ) are obligated to take prompt steps to assure that proceeds of insured deposits and shares in financial institutions within the-disa ster area are made available to eligible insured depositors and shareholders as promptly as possible.
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If needed, credit and interest controls could be instituted under the Credit Control Act (12 U. S. C.
1901, et seq. ).
Section 19 of the Securities and Exchange Act (15 U. S. C 785) would permit the summary suspension of trading of any registered security on any national security exchange for up to 10 days, or the suspension of o
all trading on any such exchange for up to 90 days.
There is no express statutory authority now in being that would
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expressly authorize G.e institution of price, wage, and rent controls, However, this shoulc. Tot be a problem in the immediate period after a detonation. If s.
k controls prove necessary in the period after such a detonation, thu
, ess should be requested to enact I
legislation permitting the inse an of those economic stabilization In the interest cf simplicity, it might be advisable to measures.
seek reenactment of statutory provisions such as were in effect at the time President Nixon imposed a freeze on prices, wages, and rents on August 14, 1971 (Economic Stabilization Act, P. L.91-379, as added by P. L. 91.$81; 84 Stat. 799). The Congress then could consider the need for longer-term and more detailed legislation without having to act hastily.
Under Section 318 of the Tariff Act of 1930 (19 U. S. C.
1318), the President may authorize the Secretary of the Treasury to permit the importation, free of duty, of fooci, clothing, medical, surgical and other supplies for use in emergency relief work.
Title 1 of the Defense Production Act of 1950, as amended, authorizes the institution of priorities and alloca tions of materials and services for such activities as will promote the national defense.
This authority has been used to assure the delivery of materials in connection with the construction of the Alaskt pipeline, the delivery of jet aircraft and ~ Sted equipment to update t'te commercial air fleet in the 1950s and 1960s, and to allocate rentaining transportation services during nationwide railway strikes. The use of this authority to restore disrupted communications, transportation, utility, defense,. l'ealth, ' safety, and related facilities would clearly promote t'ie nat;oaal defense. Similarly, measures: designed to rescue, ided, c1ctee, and shelter victims in, and to restore the economy o!, the dinater area would, of ne essity, promote the national defense.
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That title also continues anti-hoarding provisions which
,.could be invoked under similar circumstances. This authority, co'Upled with the allocation authority contained in Section 318 of
'the -Disaster Relief Act of 1974, - should provide sufficient authority to permit the dedication of essential resources to rescue, r elief, and restoration efforts in the disaster area.
Section 902 of the Merchant Marine Act of 1936 authorizes the Secretary of Commerce to requisition or purchase any vessel owned by citizens of the United States during a. time of national.
emergency declar ed by the President.
It has been suggesteu that the provisions of the Defense Production Act of 1950 should not be relied upon as authority for contingency planning since its provisions are dependent upon i
Congressional extensions of the Act, annually or biannually. That Act has been extended, with only a few brief lapses, since it was first enacted. It would appear reasonable to assume that the Congress will continue to extend that authority. In this regard, it should be noted that the Congress considers the Defense Production Act to be of such importance that it maintains a Joint Committee to oversee its administration. This would tend to suggest that the Congress, after proper periodic reviews, will continue to extend essential provisions of that Act so long as those provisions may be needed to promote the national defense.
Finally, it is difficult to envision a situation in which parties to a labor dispute would commence or continue a labor etoppage or lockout in an industry that would hamper rescue, relief, or recovery activities in a period immediately following a nuclear detonation with the resultant requirement for Federal assistence.
However, if such a dispute were to occur with respect to a rail or air carrier and threaten to deprive a segment of the Nation of essential service, a strike could be postponed for.up to 60 days by the creation of an Emergency Board under the provisions of Section 10 of the Railway Labor Act (45 U. S. C.160). Similarly, strikes in other vital industries could probably be postponed under a 60-day cooling off period injunction under the provisions of Sections 206-208 of the Labor Management Rel'.tions Act, 1947 (29 U. S. C.
176-178).
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Y Neither of these procedures is an absolute answer to preventing.
labor strikes or lockouts since they can be invoked only once with respect to a dispute. _ If they shall have been invoked prior to the detonation, they could not be reinvoked, but this would not appear to be a critical problem in the immediate post-detonation period and the Congress could deal with that problem over the longer haul.
Consequently, except for general price, wage, and rent control authority, which would hardly be a critical need in the period immediately after a nuclear detonation, there appears to be ample authority to assure the stability of banks, securities marketing, and foreign financial transactions, to assure the availability of insured deposits and share accounts, and to preclude crippling strikes in essential industries in the immediate period after this type of emergency.
Category IV Category IV. A nuclear detonation or major dispersal of radioactive material can also be expected to create, in addition to f
the need for immediate lifesaving and other related operations as described in Category III above, the need for long-range recovery and rehabilitation measures directed toward the permanent rebuilding and reconstitution of the socio-economic structure, the physical facilities and institutions of the affected area (s) and the long-term reduction or elimination of radleadlee contamination. These measures would involve such things as housing, utilities, hospitals, schools, business, financial, governmental structures and l
organizations. These measures can be expected to continue for months or years after the immediate lifesaving operations have been completed, and should be administered by an organizational mechanism responsive to these long-range needs. Although it is difficult to provide any specific planning guidance for the long-range needs of an area affected by a PNE, it is essential that some forethought and consideration be given to such things as the reconstitution of local government operations, the rebuilding of the social and economic structure of the affected area (s),' and the allocation of critical resources which may be in short supply following a nuclear detonation or dispersion of radioactive material,
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r The need for long-range recovery and rehabilitation efforts has been recognized by Congress in Title V of the Disaster Relief-Act of 1974 (P. L.93-288) which deals with long-range recovery for disasters in general. The main thrust of this Act is the provision of Federal Assistance to States for economic recovery of disaster 1
areas, including a'sistance in planning for replacement of losses s
incurred in aimajor disaster.
Responsibility for Title V of this
- Law, however, has.not been assigned to a Federal age cy.
P. L.93-288,.however, does provide for Title V to be an amend-1 ment to the Economic Development Act of 1965 and to be designated Title VIII of that Act. Pending a specific Presidential
' delegation'in this area, GSA/FPA, in meeting its preparedness responsibilities outlined in Sections 101(a) and (b) of E. O.
- 11051, is responsible for examining the.various needs for and methods i
of providing long-range recovery and rehabilitation assistance to an area affected by'a PNE, and associated preparedness require-ments of the relevant Federal agencies. GSA/FPA should be prepared to advise the President on such issues as options available for administration of these long-range efforts and specific recovery and rehabilitation operations required to meet the needs of the situation.
i Summary In summary, it appears that ample 1cgal authority exists to effectuate all foreseeable Federal responses in any of the four categories of PNEs described in the FRPPNE This statement is not intended to suggest that new legislation will not be needed to deal with longer-range problems, and for ultimate recovery programs.
in the event of a Category III emergency. At a minimum, there would be a need for additional appropriations to the Disaster Relief Act account, for additional funds to the President to cover activities not covered by that Act, and for funds to cover claims under indemnification provisions now in the law.
Consequently, it is possible that there may be a need for economic stabilization legislation, legislation broadening indemnification statutes, legislation providing tax and other relief measures to assist businesses and organizations seriously damaged by a detonation or 2
e radioactive fallout therefrom, and other legislation designed to deal with the specifics of the disaster involved.
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