[Published Originally in 2004 in a
No longer Published Journal]
WHY THE FEDS AND LOCAL GOVERNMENTS
DON’T TRUST THE STATES
AND VICE VERSA ON WMD PREPAREDNESS
BY WILLIAM R. CUMMING (VACATION LANE GROUP]
Recent reports in major newspapers and elsewhere have detailed the debate going on in Washington, D.C. over whether Congress or the Department of Homeland Security (DHS) has adequately funded the states and first responders to combat terrorism since September 11, 2001. Recently, the U.S. Conference of Mayors released a report base on a survey conducted by City Policy Associates, a Washington, D.C. consulting firm indicating 76 percent of 215 cities surveyed had been left out of the December funding round for Department of Homeland Security grant monies. It is somewhat unclear whether these monies were doles out under the first ever Department of Homeland Security Appropriations Act, Public Law 108-90, October 1, 2003, or prior legislation. In a quote picked up by Congressional Quarterly, John Thomasian, Director of the National Governors Association’s Center for Best Practices stated “It’s a specious augment.”
Like the Japanese movie RASHOMON there are probably at least that movie’s seven versions of the truth. It is, however, even more important that the always present effort by bureaucracy whether at federal, state, or local level to attempt to evade accountability even while maintaining authority over financial resources is documented. This brief essay is a first step in documenting the past as represented by the federal civil defense program that lasted from 1951-1995. Ultimately, federal civil defense grants to the states for emergency preparedness and first response were made ineffective by a combination of federal and state actions. The past can be studied to help develop the accountability that in the future is necessary to combat terrorism as well as well as enhancing efficiency and effectiveness.
When the Federal Emergency Management Agency (FEMA) opened its doors on April 1, 1979 (a date picked by a disgruntled OMB [Office of Management and Budget] official who had hoped to be a high-level bureaucrat in the new agency) under E.O. 12127 [March 31, 1979] and further implemented by E.O. 12148 [July 20, 1979] it was faced with administration of the civil defense programs, functions, and activities conducted most recently by the Defense Civil Preparedness Agency (1972-1979) pursuant to the Federal Civil Defense Act of 1950, as amended, originally enacted as Public Law 920 in the 81st Congress. That statute had been modified in 1958 to make the civil defense of the nation a joint responsibility of the federal government and the states. It is of some interest that while the fire service had been the basis of civil defense in Great Britain during WWII, the United States chose to create new cadres for civil defense essentially independent of the fire service in the United States. Whatever the reasons for this decision they appear lost to history but the enactment of the Fire Prevention and Control Act of 1974, now amended [codified at 15 U.S.C. Sections 2201 and following] gave the fire service a second chance to be involved in national level preparedness and response issues. The United States Fire Prevention and Control Administration renamed the United States Fire Administration became part of the Federal Emergency Management Agency in 1979. Like FEMA, the United States Fire Administration was lost in the scuffle when the Department of Homeland Security was formed largely based on the absence of input from either the fire service community or the emergency management community, but rather the law enforcement and defense establishments. It is interesting to note that although there was reluctance to become a part of FEMA, the fire service was hopeful that it would be a prominent part of the new agency, but instead it was rewarded by being zero-budgeted twice by OMB on the basis of fire being largely a local issue. Although restored by Congress momentum was lost throughout the 80’s and the States did not participate in attempts to restore the budget, also seeing fire as a local issue. Importantly, most State Fire Marshals even today, as with other state agencies, are seldom involved with actual emergency preparedness and response but serve as a drain on federal resources that would otherwise be available for local response organizations.
In 1979, FEMA had been under enormous pressure to achieve savings in overhead staff and administrative costs since the President’s Reorganization Project (PRP) had in negotiations with the Congress promised extensive financial savings and efficiencies in administration as the primary benefit of the reorganization. This included an immediate savings of 400 Full-time Equivalent (FTE’s) positions from the FTE authorization of the predecessor agencies. A saving that OMB only too willing immediately enforced.
A review of grant programs indicated that those authorized under the civil defense legislation might be eligible for consolidation and subsequent administrative savings by the federal government and the states.
The programs, functions, and activities included the following:
• Nuclear civil protection
• National shelter surveys
• Radiological defense officers
• Maintenance and calibration [dosimetery]
• Emergency Management Assistance
• Maintenance and services
• Supporting materials
• Training and education
• Emergency Operating Centers [EOCs]e
Toadying to an OMB whose high ranking appointees loved cost-saving proposals, the FEMA management struggled with a way to achieve change with the law as constructed. Finally, amendments in 1981 to the Federal Civil Defense Act, even though arguably not relevant to the issue of grant consolidation, were used to design a new approach called Comprehensive Cooperative Agreements. Additionally, the General Accounting Office issued a comprehensive report on August 30, 1983, “CONSOLIDATION OF FEDERAL ASSISTANCE RESOURCES WILL ENHANCE THE FEDERAL-STATE EMERGENCY MANAGEMENT EFFORT” GAO/GGD-83-92 supporting consolidation. It is interesting to note that the States were strong advocates of this consolidation and the report could be issued today based on current Fiscal Year 2004 funding by substitution of DHS’s grant programs administered by the United States Fire Administration, Emergency Preparedness and Response Directorate [FEMA] and the Office for Domestic Preparedness, all scheduled to be primarily administered in Fiscal Year 2005 and after by the Office of State and Local Coordination to be renamed the Office of State and Local Preparedness and Coordination. [Secretary Tom Ridge notified Congress that he was intending to conduct such a consolidation in a letter dated January 21, 2004.]
The Comprehensive Cooperative Agreement was premised on legislation enacted in the 1970’s that tried to authorize a administrative compromise between the strict accounting, audit, and monitoring requirements of federal contracting, i.e. where the federal government was contracting for goods or services, and the federal grant requirements that were basically a “Fire and Forget” approach with very little in the way of effective strings except for audits sometimes years later. OMB had generic grant guidance out for several decades, but one Circular of particular interest to this discussion is OMB Circular A-87 allowing the States to receive their indirect overhead costs for administration of federal grants, analogous to G&A in federal contracts. By the mid-80’s some states were taking upwards of 80% of total grant amounts issued pursuant to the Federal Civil Defense Act in these overhead costs. In fact the Secretary of Health for New York State testified in proceedings before the Nuclear Regulatory Commission in the Shoreham Nuclear Power Station proceedings that New York State treated civil defense monies as unrestricted revenue sharing. Existing FEMA regulations had mandated certain plans and products even as this testimony was being given. No enforcement action was taken by FEMA. OMB never developed guidance on cooperative agreements leaving implementation to each department and agency.
With GAO’s backing, FEMA adopted the Comprehensive Cooperative Agreement strategy even though GAO recognized it might be in violation of federal appropriation law but relied on FEMA to submit legislation through the authorizing committees, in this case the Senate and House Armed Services Committee. This was not done until 1992 informally in a report submitted in March 1992 entitled “Disaster Preparedness.” Then the Federal Civil Defense Act was repealed by Public Law 103-337 in November 1994.
The concept of the cooperative agreement was one of a cooperative effort, with both parties operating as partners in achieving mutually agreed goals with a continuing dialogue throughout the term of the agreement. Shortly after adopting the Comprehensive Cooperative Agreement two administrative events eliminated the staffing that might have made this an effective arrangement. First, a major Reduction in Force (RIF) occurred in FEMA’s primary field element the Regions. Second, the United States Fire Administration was zero-budgeted by the Executive Branch in two separate fiscal years. Although restored by Congress, the USFA staff was eliminated and dispersed throughout FEMA, or terminated. This disrupted relations with both the states and first responders at the same time.
The safety program around private nuclear power plants had been part of the State Agreement Program of the Nuclear Regulatory Commission, with assistance from the former Federal Preparedness Agency [part of GSA] that became part of FEMA in 1979, and a research effort by the Defense Civil Preparedness Agency that continued until about 1985 in FEMA. Three-Mile Island accelerated these efforts when President Jimmy Carter in a news conference indicated that off-site safety, as recommended by the Kemeny Commission and the Rogovin Report would be assigned to FEMA. A very brief Executive Order was issued {E.O. 12241] that defectively implanted this decision. Also, the Radiological Emergency Preparedness Program [REP] conducted pursuant to 10 CFR Part 50, Appendix E, and 44 CFR Parts 350-354, designed to improve off-site safety at privately owned nuclear power stations and had been administered by FEMA in conjunction with NRC since 1980 became a more significant program in the public perception because of the Chernobyl nuclear accident in 1985. Suddenly, public perception of FEMA changed to reflect more of a regulator role in health and safety. This perception had ended by 1990, because of NRC administrative litigation and in part because of two large disasters, Hurricane Hugo and the Loma Prieta earthquake. The agency had been so distracted by the onslaught of public attention and Congressional oversight that civil defense issues and staffing were virtually ignored. A third factor was that FEMA’s national security policy role had been severely curtailed by the issuance of National Security Decision Directive 188 in summer of 1985 eliminating civil defense as a policy driver for national security policy.
The end result was the states were left for a period of 5-8 years with almost no involvement by FEMA staff in how the civil defense monies were administered. Certainly the states were not interested in calling attention to this non-feasance. Additionally, since state and local plans were lightly reviewed but seldom rejected by FEMA regional staff, including REP plans, the States were able to focus on other issues and the tough issues of monitoring, detection, decontamination, and skills in the issuance of Protective Action Recommendations were allowed to wither.
In a second theme, FEMA and its civil defense predecessor civil defense agencies, like the Defense Civil Preparedness Agency, had been under mandates to prepare and report on civil defense activities at the federal, state, and local level in various Executive Orders and statutes. By 1985 these annual reports had been administratively ended and the termination was encouraged by OMB because it viewed annual report mandates as a vehicle for agencies to free-lance and escape from their system of financial, budget, appropriations, and other reports controls. Even today Section 624 of Title VI requires that “The Director [FEMA] shall annually submit a written report to the President and Congress covering expenditures, contributions, work, and accomplishments of the Federal Emergency Management Agency pursuant to this title, accompanied by such recommendations as the Director considers appropriate.” Additionally, E.O. 12656, as amended requires periodic assessments of federal, state, and local capabilities to respond to national security emergencies. Part 17, Section 1701(5) of E.O.12656. The Director FEMA was also required to submit assessments on federal, state, and local civil defense plans and preparedness to the President under E.O. 12148. Perhaps it is instructive that no oversight hearings have ever been held on administration of Title VI by the authorizing committees in the Congress. Only the Appropriations Committees and their staff have conducted reviews. This is interesting since arguably the broadest planning authority and authorization for grants in all of the Department of Homeland Security resides in Title VI.
FEMA had also tried to develop reporting systems in the early 80’s allowing state and local governments to assess their own emergency management and preparedness capabilities. In 1984 a comprehensive assessment tool was developed and sent to the states and local governments to self-assess their capability for response to unexpected events, including nuclear attack. Again, at the end of the administration of President Clinton a further effort was made to assess state and local capability. Again it was a paper audit system but it did have the imprimatur of the National Emergency Management Association (State level emergency managers) and International Emergency Management Association (principally local emergency management officials). It suffices to state that even today; the federal government has only a paper audit system for determining state and local capability. The struggle to develop and maintain an effective capability assessment system is appropriate for another day. There are several legal reasons for state reluctance to document their lack of preparedness. One is that by doing so they can continue to blame the federal government for their failure to develop efficient and effective administrative processes in the emergency management arena. They can also continue to insist that even relatively minor natural disasters are beyond state and local capability and thus receive federal disaster assistance. Finally, they can continue to allow vendors to state and local government emergency management, fire, and law enforcement to continue to market inefficient and ineffective products that limit effectiveness of mutual assistance agreements and interoperability.
State and local governments under day-today pressures to deal with on-going budget deficits for other programs have yet to become serious partners in the sense of wisely expending their monies on still unarticulated federal priorities. Improvements have been made, but the pressure for development of a Homeland Security Block Grant is just around the corner and if the history of the Comprehensive Cooperative Agreement program in FEMA is an example, flexibility granted to the states may well result in un-preparedness.
It is important to note that even after 2 and 1/2 years from 9/11 there is no complete inventory of State and local WMD assets, nor does DHS have any real interest in developing such an inventor. More importantly, there is no complete inventory of federal assets that has been made available to the states. The result in a “By Guess and by Golly” system that prevents correction of deficiencies. The important reforms that might have been driven by 9/11 have now failed, since no systematic review of administrative deficiencies that would block a successful WMD response has occurred and TOPOFF II again revealed many of the same problems identified in earlier exercises.
It is also true that due to fiscal pressures on the federal executive branch, whichever party takes over in Calendar Year 2005 administration of the federal executive branch will be sorely pressed to not label natural disasters a principal function of State and local government, and only WMD and terrorist threats and actions the federal responsibility. The effect of this transfer, if it occurs, will deprive the system of preparedness and response the real world activity that might assist in a WMD response. All-hazards may soon become “No-hazards” and this will be a direct result of State inactivity and lack of vision. That combined with federal inefficiencies and ineffectiveness will leave the actual WMD responders in a lurch. Even now no one can identify actually State personnel or resources that are dedicated to WMD response. The Governors should not sleep well.
