Further Take on Current Events

Okay tomorrow HURRICANE SEASON officially opens but in Guatemala where I have friends it has already opened. Devasting hurricane there has caused substantial suffering and still no reports back from friends.

OIL SPILL: Now seems a substantial possibility that there is a plume 7-9 miles away from the well head that exploded producing an additional 120,000 barrels of spill a day. Apparently this is known only to insiders in the oil industry and US Government has no clue. My source is several other blogs, including the "Big Picture"! This blog has some creds with me but leave it to others to decide.

HAITI: Increasing tensions and actual physical violence are dominanting the scene in Haiti as government corruption takes it toll on recovery! Predicting that armed groups now terrifying many NGO staff in particular at night well be openly fighting in streets for control by 4th of July. US continues to return fleeing Haitians "captured" at sea to Haiti. There needs to be a humanitarian emmigration plan adopted to allow up to 2 million Haitians to leave Haiti permanently, IMO. The US could easily absord 150,000 of that number for specially designed permanent residency even if no citizenship. Cuba and China workers continue diligently to insinuate themselves into the vitals of Haitain polity and process. And guess what now that famous movie direct of "JFK" and "Platoon" fame is working on a film to demonstarte how Ceasar Chavez had become a S.American hero.

South and North Korean Tensions: Looks to me like hardline elements involved in the succession issues in N.Korea advocated and accomplished the sinking of the S.Korean warship. Now those intergovernmental tensions are leading to continued instability in predicting events on the Korean Penisula. And to make it worse, internal tensions in Chinese government are preventing any coherent policy to prevent a major war next door. If I was Japan I would quietly go to full alert status hoping no notice by MSM and also if President Obama would drastically beef up us Naval Presence in Sea of Japan and area.

ISRAEL: Continued Israeli provocations are driving the increased consensus in the ARAB states that US has totally lost control of Israel and events that might lead to stable situation. So what or where does that leave the peacemakers on all sides? On the sidelines! The attacks on the boats resupplying GAZA will reveal that Israeli policy is violating many international norms. "Dragon Seeds" [Sow your seeds upon the water!] as Upton Sinclair might have labeled these Israeli policies in his wonderful Lanny Bud series of over 10 historical novels leading from first to second world war. I wonder what that only really possible socialist candidate for President and Governor of California would think of the defense of corporate socialism by both major parties in the US. Probably would with IDA TARBEL label them both the "Protect Corporate Greed" Parties.

SUBSAHARAN AFRICA: Well this important part of the world which the US monitors for defense purposeds from Germany (Africa Command) has many many facets that could be explored. What I would request is that readers follow breaking events in Africa closely and see how S.Africa handles the World Cup now about to take place. Hoping for a repeat performance by the US team of the 1950 defeat of a wonderful English team in what still is soccer's premier upset. Looking like Nigeria and Ghana in position to challenge the usual champion suspects like Brazil.

And yes felt I could not wait a full month to do this quickie take on world events since last effort on May 13th.

FEMA Workforce Study

I often have defined the term "preparedness" as including personnel (their level of training, education, experience, competence, and availabilty [after all events are not just controlled by actions of a singe shift of workerbees but in fact require 24/7/365 days availability and with appropriate rotations for reasons of sleep, and health.] In additon of course "preparedness" includes logistics, equipment, surge capability, legal authority, integration or ability to integrate legal, medical, technical, and scientific advice, and other things also including planning.
This post is focused on the fact that DHS/FEMA paid a huge outlay to a FFRDC (Federally Funded Research and Development Center) to study FEMA workforce issues under a statutory mandate enacted as far back as FEMA. What is of interest of course is that even VP Al Gore's Reinventing Government effort focused on the need to study work force issues in FEMA. What I find fascinating is that the study was conducted and transmitted to Congress without definition of the FEMA role in the Executive Branch or domestic civil crisis management, response and recovery and mitigation. The study however looks quite interesting and I will analyze further over time. The question I will use for the basis of my analysis has been raised elsewhere on this blog, is FEMA the Executive Branch safety net for civil government in crisis and emergencies and disasters when other Executive branch organizations fail for a variety of reasons including lack of funding? This unanwered question makes any FEMA workforce study compromised at the beginning if not answered yet each workforce study of FEMA and their have been several major ones provide some interesting insights as to exactly who FEMA hires and how they are utilized. I discussed this issue tangentially in an article published in JHSEM (Journal of Homeland Security and Emergency Management)in its very first issue with my friend Dr. Richard Sylves, PhD, and it concerned HAZMATS and FEMA's Road to DHS. I will furnish articles on request and also available from JHSEM.
I will also furnish copies of the workforce study which was transmitted to Congress on May 10th upon request.

Legal Doctrine-American Tort Law and the FEDS

Hey once was a lawyer, and inactive in VA Bar since retiring from FEMA in October 1999, but still paying bar dues until age 70 under VA BAR rules. So this is NOT a legal opinion.

American tort law controls not just the development of the law in the 50 respective states but also federal tort causes of actions for money damages because federal case law relies on the individual tort law of the 50 states. Federal law also relies on state law to determine property and interests in property. In other words there is NO federal tort or property law as far as legal doctrine. Civil and criminal liability including damages and fines are based on statutory enactments but even those often turn on STATE law. Prime example of course is that the Internal Revenue Code often impacts transfers of property but defining what that property is by IRS turns on STATE law. Complicated yes but that is the system.

The recent OIL SPILL has raised issues of compensation. Will the feds use any common law theories to recover or any of the plaintiffs? Well unknow what theories but recently the STATE of IOWA Supreme Court allowed a trial court to proceed in claims for money damages against a municaplity for road work that aggravated flooding. An active program of subrogation under the NFIP [National Flood Insurance Program] existed from 1978 to 1991 including often the waiving of NFIP subrogation rights in order to encourage flood plain management as part of the recovery against flood damage sources.
That stated what is the basic tort regime in the US assuming no strict liability. That doctrine existed from the creation of the concept at common law that some activities were so dangerous as to require strict liability. In most if not all states now comparative negligence has caused the concept of strict liability to fall by the wayside. In LA for example strict liability is incurred according to my information only by blasting and pile driving.
And in passing I should state that the statutory claimancy for the oil spills to the extent I have knowledge are completely inadquate for recovery of damages even by the FEDS under the CWA (So-called Clean Water Act, enacted in 1972 as the Water Pollution and Congrol Act) and the Oil Spill Liability concepts created under the Oil Pollution Act of 1990 previously discussed on this blog. There may be however, common law remedies that courts could still look to and looking like they will be explored by the courts over the next two decades.
So back to the tort regime in the US and note that efforts to change that underlying regime over three decades by the insurance business and corporations led by Victor Swartz largely failed but probably did have the indirect impact of levening the jury awards for torts often limited on appeal in any event.

So here is the system now in the US.

First there must be a "standard of care" that can be identified. This can be complicated but as an example at one time when a member of the medical profession was sued for malpractice the standard of care was the standard in that particular community. Now the standard of care for the medical profession is a national standard led by the development of MEDICAL Library of NIH and other things all readily accessed and mandatory continuing educational requirements. What the standard of care is in oil spills is unknown to me but there also is case law indicating the CWA creates by its statutory scheme a premptive concept under the Commerce Clause of the Constitution but not sure even how that plays out without detailed examination of US case law.
The second step in the tort regime in the US is to determine whether in fact there has been an injury. Sounds simple, not really.
Third, whether the breech of the Standard of Care caused the injury. And also determining "but for" the breech of the standard there would be no injury!
Fourth, whether the first three categories were met and in fact there was harm caused.
Fifth, how much harmed was caused (measure of damages) and therefore how much can be recovered.

If this process seems difficult to understand it is. Chain of causation under the so-call Palzgraff doctrine really is not the test of events and led to arcanary in the tort recovery process for over half of decade but ultimately proved a fool's errand to some extent. IN the NFIP for example, perhaps erroneously, claims for flood damages ignore causation such as did the flooding river knock down the tree which knockned down the house. Note the coverage for damages "by and from flood" in the NFIP policy coverage language.

Hoping this explains to some extent why hundreds of lawyers seem to be lining up to spend the rest of their legal lives (and maybe actual lives) on this oil spill event. Note that the FEDS and citizens are largely precluded from suing the states for money damages under the 11th Amendment. That limitation has yet to be fully explored by the courts of the US, IMO.

FEMA's Identity Crisis

Okay I seem to have overlooked an item in previous posts, specifically the rise to power in FEMA of the so-called operations types. This probably is good in some sense but troubling in others. The failure to resolve the primary roles of FEMA has allowed it to be the catch-all for criticism post event. So now the question, if the Stafford Act is primarily the charter for FEMA, especially post PKEMA of 2006, what does that charter represent or create? Is the "new" FEMA an operations entity, a preparedness entity, a response entity, a recovery entity or perhaps even a mitigation entity? This could be argued a number of ways but what is clear is that while many incidents/events may well be declared a Stafford Act event many will not. President Ronald Reagan, much to FEMA's shock declared a disaster for the sewers of Louisville, KY wherein Ralston Purina dumped Hexane that exploded. It happened to be President Reagans first disaster declaration, and the payments were "subrogated" upon by DOJ and a recovery on behalf of Uncle Sugar accomplished.
First IMO FEMA as an organization is none of the above and all of the above. I know where is the one-handed lawyer when needed.
But here are my arguments. Let's say prior to disaster or emergency declarations or both--FEMA gives out assistance both financial and technical. Or analyzed another way FEMA gives mitigation assistance prior to an event or incident. If funding alone is looked at this role of FEMA's is by an accounting tiny compared to other roles. Let's say the first 120-180 days of a disaster are used as the measuring stick? Even including claims under the NFIP, these outlays for response are usually insignificant to eventual outlays for over the next 5-10 years in some cases. So that leads us to conclude that FEMA is in reality a recovery agency. And that its funding role is paramount. But as pointed in the NAPA February 1993 report that the President gets the FEMA he/she wants--then what does the PRESIDENT want FEMA to be? And of course now as part of DHS, what does the Secretary DHS want FEMA to be?
I would argue that FEMA is not an operational agency, but designed for coordination and collaboration or should be so designed. I also argue that based on weak authority for preparedness, response, recovery and mitigation FEMA is not any of these as its dominant role and culture. So then what do I think FEMA is now, whether new or old?

I have long concluded that FEMA is an information provider and funding mechanism. Neither of these FEMA roles are particularly efficient or effective but none the less that is the case. The concept of the JIC seems sound but as seen in recent events such as the current oil spill, it can be documented that since the advent of 24/7/365 days a year news the WH wants to appear all knowing and capable and in charge. Wow! IN the old days of nuclear war planning it was finally concluded by all that strikes against the leadership of the opponent might just lead to NO ONE CAPABLE of stopping further missile attacks, so that both Russian leadership (Soviet Union) and US concluded don't behead the leadership since the real "winner" in a nuclear war was "who had the most weapons" after the war ended! Hey FEMA for better or worse was once part of nuclear war planning and defense however strange that seems. That role was ended for good by Richard Nixon and Henry Kissinger who both actually did undertand the theories and paradigms of nuclear war. By the way did you know the "nuclear" option has been discussed with some seriousness as bringing closure on the oil spill? Sorry my sources cannot be revealed.

Okay so with the WH in charge of the accuracy of information and FEMA largely funding disasters over the long term and well after the first 120-180 days and having little technical ability, with no real Commerce Clause regulatory authority but only Tax and Spend Clause (ARticle I section 8) FEMA is just at bottom an administrative and grant making agency. It currently has no really assigned role in civil domestic crisis managment and unlikely to get that while in DHS and its convoluted chain of command. What prompts this post?

Well the non-declaration by the President of the Oil Spill is rapidly bringing to a head the conundrum that is FEMA. FEMA even now has no leadership to wage bureacratic warfare in the convoluted context of the Obama Administration. How will this come out? No one knows! Certainly not the President or the FEMA Administrator.

Well events are in the saddle now and this will be interesting to watch what happens? Both to the Presidency and to FEMA! There is some kind of linkage there but hard to detect or even analyze under current setup. Good luck to both.

Will the 111th Congress be remembered!

Well this Congress has accomplished a lot and will go down in history [perhaps wrong expression] as having conducted health care reform, various pieces of bailout legislation, and many other substantive items. But I am guessing that the period from Memorial Day (next Monday)until Labor Day or even the 2010 elections may be the session from hell. Basically appropriations must get through to fund the FY 2011 Department and Agency budgets. But in the meantime events are rapidly intervening that may disrupt any human efforts at organization that will allow thoughfulness. Most of the successes of this Congress required tooth and nail combat and no one will know much before 2012 if the Congressional effort paid off. In the meantime Congressional incumbents look like they may be hammered by events and the frustration of the voters. Resort to simple programmatic authorization extensions looks to me like the norm.

Thus willing to predict that for FEMA programs, functions, and activities mostly funding issues and little in the way of "reform" or change dictated by the 111th Congress. But I believe that the 112th Congress will end up the most significant Congress since the Cold War for a variety of reason that I will articulate over time. Goodby and good luck to members of the 11th and hoping the 3AM sessions can be kept to a minimum between now and elections this fall. Only the youthful lobbyists with infinite capabilty to monitor Congress 24/7 when in session will know what is up. And it will be a time of misery for WH and department and agency staffs working with what IMO is a largely dysfunctional organization. Hoping the 112th substantially reorganizes for efficiency and effectiveness and in particular to help truly frame Homeland Security and FEMA issues.

Recovery Division of FEMA Reorganized Effective June 1, 2010

Okay How many reorganizations have taken place in FEMA. When pressed by Congressional staff and CRS staff to indicate a number for the years 1979-2003 I finally coughed up the number 54 for various reorganizations, realignments, reporting changes etc. It should be noted that unlike the situation today, the Directors of FEMA in the past had absolute authority to reorganize FEMA. The major ones occurred in September 1981 designed largely by Associate Director Charles Girard and to some degree that reorganization lasted until James Lee Witt's major reorganization of FEMA on November 1, 1993. In 1985 I met a person who worked in the US Fire Administration, an organization zero budgeted twice in the first Reagan Administration largely at the behest of a disgruntled Fire Adminstration and Control employee who became significant in the REAGAN era but was not part of USFA under President Carter. Another person who is linked to FEMA history is the distinguished civil servant and appointee Ralph Bledsoe who became a WH official under Ronald Reagan and then Deputy Archivist of the United States, and I believe still runs the Ronald Reagan Presidential Library in California. Then of course there were modifications to FEMA's organization made by the BUSH appointees, in particular Joseph Allbaugh in summer 2001. Now I would argue there is almost a statutory organization chart for FEMA but still the administrator can reorganize below the Assistant or Deputy Adminstrator [there are two of these--Manning and Serino] which apparently has been done several times. Also the Chief Counsel of FEMA has announced a reorganization of the Office of the Chief Counsel announcing proudly that it is the first reorganization in 15 years while I think not. But hey who is counting.

At any rate anyone wanting the new org charts please request from me! Only the test of time will indicate whether these changes were substantive or otherwise.

Okay since FEMA has been in DHS I count over 11 reorganizations, realignments or reporting changes of significance. Probably the most important was Chertoff's 2SR changes, approved with a wave of the hand by Congress and then totally invalidated by PKEMA 2006. Of course in the meantime, the first and only DHS Deputy Under Secretary for Preparedness, George Foresman, came and left. His tenure was not without significance and lasted from December 2005 until March 31, 2007. More on that later.

Defining "Hazard Mitigation"

Well the world has taken a few turns since the NGA issued its 5 volume report on Emergency Management that helped boost the creation of FEMA. The agency mantra of "preparedness, response, recovery and mitigation" stems from that document. Now PKEMA of 2006 has slipped in the word "prevention" into the FEMA and EM mantra. But what about "mitigation"?

On April 14, 1981, over a year after FEMA opened its doors, the GC of FEMA wrote a memorandum to the Director FEMA subject: Defining "hazard mitigation". The paper included two tabs. Tab A was a consensus definition developed by a high ranking group assembled to prepare an "agreed upon" definition. Included in the memo was the following sentence:
"As you will note it includes other disciplines--plans and preparedness, response and recovery--since these efforts are also aimed at reducing the severity of catastrophic occurrences".
The memo also included a Tab B with a more restrictive version used by the reorganization staff at OMB when the FEMA plan was presented to President Carter for his approval. The memo stated "This statement while not acceptable to the group [those assembled to forge the consesus definition] defines hazard mitigation in terms differentiating its policies from those activities aimed more at readiness or response or recovery.

The memo concludes with the sentence "Executive Order 12148 states that you coordinate and set policy for "civil emergency planning, management, mitigation and assisitance functions of Executive agencies".

It should not pass notice that FEMA opened its doors with a "Research and Mitigation Directorate" even though that Directorate bit the dust in September 1981 and did not reappear until November 1993 under Director James Lee Witt. It again disappeared in the George W. Bush Administration even before FEMA was incorporated into DHS on March 1, 2003.
And perhaps in passing the word "research" also disappeared from the FEMA organization chart in September 1981 never to reappear.
With that preface the full text of TAB A and B of the memo are set forth below:

TAB A
Hazard mitigiation is an underlying philosophy which, when applied, reduces the severity of the effects of an emergency on people and property by reducing the cause or occurrence of the hazard, reducing exposure to the hazard or reducing the effects by preparedness, response and recovery measures. As practiced by FEMA, hazard mitigation is a management strategy in which current actions and expenditures to reduce the occurrence or severity of potential disaster events are balanced with potential losses from future hazard occurences.
Mitigation includes such actions as:
1) minimizing probability of hazard occurrence (e.g., restoration of damaged dams and levees,dam safety);
2) improvement of structures at risk (e.g., flood-proofing, fire safety studies, model codes and specifications in restoration of damaged public facilities);
3) identification of hazard-prone areas and standards for prohibited or restricted use (e.g., floodplain management, structural and non-structural flood proofing, hazard mitigation plans);
4) loss recovery and relief (e.g., insurance, disaster grants and housing, low interest loans);
5) hazard warning and population protection (e.g., assistance for warning, emergency public information, direction and control, protective measures, sheltering, relocation and detection and training).

TAB B
HAZARD MITIGATION

Definition:

"Hazard mitigation" is the principle that potential disasters can be lessened or averted by formulating policies and programs designed at improving concepts for land use and building standards in such a way that people and property are placed in less risk of the occurrence of an event (abatement) or are made less vulnerable to the effects of destructive phenomena such as fires, storms, floods, and earthquakes when they strike. The central idea is that there are approaches which can be taken to literally reduce the probability of the consequences of a disasterous event from occurring, as well as, approaches which, if the events cannot be prevented entirely, their effects when occurring can be minimized by building structures that can withstand them or by keeping people away form zones wher the danger is predictable.
Our principal mitigatino functions include:
--E.O. 11988, Floodplain Management, E.O. 11990, Protection of Wetlands as implemented in 44 CFR Part 9;
--Section 406 of the Disaster Relief Act of 1974 (Public Law 93-288);
--National Flood Insurance Program as implemented in FIA's [Federal Insurance Administration] floodplain management regulations;
--Section 1362 of the National Flood Insurance Act of 1968, as amended, Acquistion of Flood Damaged Property;
--OMB Directed Inter-Agency Agreement--post flood disaster hazard mitigation plans;
--Earthquake Hazards reduction;
--Dam Safety;
--Fire Prevention."

Of course many definitions swirl around today including some in statutory languages but those present at the "creation" of FEMA took their best shot. IMO they could have done better but hey it was a start.

Oil Spill Pollution Act of 1990

Oil Pollution Act of 1990.

The Oil Pollution Act of 1990 (PL 101-380), referred to herein as OPA ’90, was a direct Congressional response to the Exxon Valdez Oil Spill. The Act had several impacts on emergency management and hazardous materials response, even while upgrading technical safety standards for tankers (e.g., mandating double hulling for new tankers).

In 1989 Senator Ted Stevens (Alaska) pushed the amendments of the Stafford Act in response to FEMA’s recommendation to the President not to declare a disaster under the authority of the Stafford Act. In a Senate appropriations hearing on May 1, 1989, FEMA officials testified that they interpreted the Stafford Act as not giving the President authority to respond if another statute authorized a federal response. Regarding the Exxon Valdez incident, the National Contingency Plan (NCP), authorized by the Federal Water Pollution Control Act (33USC. § 1321), was triggered, and FEMA did not respond under the Stafford Act.

The NCP, a Memorandum of Agreement to which 16 federal agencies are signatories, is designed to respond to intentional or unintentional releases of oil or hazardous materials on land or water. There was, however, a requirement in place in OPA ’90 to update the NCP on a comprehensive basis. The NCP was completed in Sept. 1994 and codified and published at 40 CFR Part 300.

OPA ’90 also mandated a report to Congress on duplications, overlaps, and deficiencies in the federal response to hazardous materials releases. EPA submitted that report to Congress in Dec. 1993. Two key documents are: (1) Review of Federal Authorities for Hazardous Materials Accident Safety. Report to Congress Section 112(r)(10), Clean Air Act as Amended (Presidential Review), 12-01-93, 550-R-93-002 (2) Review of Emergency Systems, Report to Congress Section 305(b) Title III Superfund Amendments and Reauthorization Act of 1986 Final Report, 6-01-88, OSWER 305B. Both are in hard copy only, available from EPA.

Additionally, EO 12580, delegating authority from the President to a number of departments and agencies and creating the National Response System, was amended after passage of OPA ’90 to reflect experience from the Valdez oil spill and administrative procedures connected with that incident. Nothing in the floor debates, committee hearings, committee reports or conference report on OPA”90 addressed hazardous materials releases caused by terrorists. Administratively, however, in the revisions to the NCP required by OPA’90, it was made clear that the NCP had full applicability in response to terrorism incidents/events. See E.O. 12580 of January 23, 1987, “Superfund Implementation” as amended by E.O. 12777 and E.O. 13016. See also President’s memorandum of August 19, 1993, 52 Fed. Reg. 2923, 3 CFR, 1994 Comp, p. 767.

In February 1998 and every year since, the subject of response to terrorist-related hazardous materials releases has been a principal issue at the annual meeting of the National Response Team co-chairs (EPA and USCG). E.O. 12580 of January 23, 1987, was originally published at 52 Fed Reg. 2923, 3 CFR 1987 comp., p. 193.

Wondering if terrorists might target offshore oil drilling rigs?

The Independent FEMA's Office of the General Counsel

From April 1, 1979 until March 1, 2003, the independent Executive Branch agency FEMA had its own Office of the General Counsel. It was headed by a number of personnel including George Jett, Spence Perry, George Watson, Katherine Newman, Patricia Gormley, John Carey, Ernest Abbott, and at the end of its days by Michael Brown and David Trissel. Some of these individuals were in an acting capacity. The position of the GC was career reserved until the administration of George H.W. Bush. None of these individuals were appointed by the President and confirmed by the Senate. Five were Presidentially appointed and a number were non-career SES. This office was underfunded and understaffed throughout my time in FEMA from 1979-1999. I could rank these people in overall competence but will not because each had specific strengths and weaknesses which sometimes became critical to damaging or helping FEMA survive in the milieu of bureacratic infighting in Washington. I tried, sometimes unsuccessfully, to keep the focus of the OFFICE on FEMA programs, functions, and activities and their successful implementation or rejection of challenges to them. Why me? Will in a way I helped create FEMA even though relatively junior in the Civil Service heirarchy. In 1977 President Carter created a Presidential Reorganization Project that led to the creation of FEMA and I attened periodic meetings of lawyers working on issues related to that reorganization and after April 1, 1979 until September 10, 1979, actually headed the HUD legal team that became a formal part of the already established OGC operations of FEMA but not administratively centralized. This did occur finally at FEMA's I street, N.W. location after FEMA lost out in a battle for the Winder Building on 17th Street (a building that originally housed the telegraph offices of the Union Army where President Lincoln read telegraphed messages throughout the Civil War).
My point in stating these facts is not just history but also to provide a brief intro to critical legal and administrative decisions that impacted FEMA throughout its history as an independent agency. Over time several will be discussed in this blog.
One of the key decisions supported by all of the individuals who ran FEMA OGC over the years was that the Office would never SELF-INITIATE a formal legal opinion to a client unless asked for that opinion in writing. There are arguments both as to the wisdom and stupidity of this policy but that is not my purpose here. In fact, IMO Congress should draft an statute like the CFO and CIO statutes that deals with the position and responsibilty of Department and Agency General Counsels. FEMA now has an Office of the Chief Counsel that reports to the General Counsel of DHS.
In the fall of 1998 I prepared a short note to the General Counsel and staff of OGC that dealt with programmatic legal issues. The text follows and you can draw your own conclusions:

"Next spring on April 1, 1999, FEMA completes its first 20 years as a federal agency. No General Counsel of FEMA has addressed, and more importantly no FEMA official has requested the General Counsel to address, a number of issues that over the years have impacted [IMO] programs and operations of what is now the RESPONSE AND RECOVERY Directorate portfolio. Perhaps, between now and next April, these issues could either be addressed in legal opinions, 1 or 2 per month, or a determination be made that only a legislative solution exists. [And of course this did NOT happen]
LEGAL ISSUES IMPACTING PROGRAM OPERATIONS

The following list briefly discusses legal issues not comprehensively addressed in written OGC opinions presently impacting on program operations in a manner that could prevent efficient and effective implementation of current FEMA policies.
KEY ISSUES FOR RESPONSE AND RECOVERY DIRECTORATE

1. What restrictions exist on the Director's authority to pre-deploy FEMA personnel or mission assign other departments and agencies prior to the declaration of a disaster or emergency?

2. What authority does FEMA have to directly respond to events that are disasters or emergencies where STATE or local government is overwhelmed or non-operative?

3. What is the Director's discretion to provide non-financial assistance to STATE and local governments during disasters and emergencies?

4. What legal limits exist on the Director's furnishing financial assistance to the federal, STATE, and/or local law enforcement community?

5. What training and protective gear must be provided under OSHA to FEMA personnel prior to their employment in potentially contaminated areas?

6. Is FEMA excluded by any federal, state, or local law from providing humanitarian assistance, including financial, in any particular type of class of events that might otherwise be considered a disaster or emergency?

7. What is the inter-play between the Robert T. Stafford Act and the Price-Anderson Act?

8. Whate are the specific sections of the statutes and executive orders delegating Presidential authority that provide response and recovery authority?

9. Did the repeal of the Federal Civil Defense Act of 1950 (Public Law 920 of the 81st Congress) have any direct legal impact on RESPONSE AND RECOVERY programs, functins, or activities or operations?

10. Does new Title V of the Robert T. Stafford Act give the Director any new authority that is potentially applicable to the RESPONSE AND RECOVERY DIRECTORATE programs, functions, and authorities?

11. Should other departments and/or agencies decline or fail to carry out their statutory or executive order roles in emergency preparedness, mitigation, response or recovery is FEMA legally the saftey net?

12. Are there any present legal gaps in the Director's authority that could cripple (i.e. make ineffective or inefficient) the operations of FEMA in a disaster or emergency?

13. Do any of the statutes vesting authority in the Director or Response and Recovery Directorate by delegation so far not utilized in planning, preparedness, mitigiation, response or recovery?"

It would be interesting to know if any of the topics listed above could be considered addressed even partially over a decade later. One might add of course what authority exists elsewhere in DHS to assist FEMA in its disaster response and recovery operations.

A second policy of FEMA's independent OGC that was effectively in force during my service and modified only by GC Pat Gormley was the policy of never identifying other legal authorities that might be of assistance to FEMA in its programs, functions, and activities when the client requested an opinion under a specific statute! This policy and its implications will be discussed in a later post. Ah yes stovepipes exist even in the legal world of the federal government.

Some Documents of Interest About FEMA

The documents concerning FEMA history that may be of interest to this blog readers may be found at the following:

http://www.fas.org/irp/agency/dhs/fema/


Have some fun!

BLOOD Supply

In the early days of FEMA's independent existence the Reorganization #1 of 1958 was often cited as a legal authority for agency programs, functions and activities. This was because due to the sloppiness of the legal analysis of the Presidential Reorganization TEAM that conducted the work for creation of Reorganization Plan No. 3 of 1978 leading to FEMA's formation by the plan and implementation by two Executive Orders, the REORG plan had a savings clause which attempted to save programs, functions, and activities overlooked by the new Executive Orders. It might be noted that the same situation exists in all reorganizations and even the Homeland Security Act of 2002 has a savings clause because it did not transfer legal authorities but so-called "functions"! This is a sloppy way to do business in federal reorganizations but none the less is often the shortcut taken by those conducting the reorganization.

So why is it important that functional transfers may in fact be a lazy way to do business but still a way to get the job done?

Okay let's back up a minute. First Reorganization Plan No. 1 of 1958 is still important but not because of its substance or context or impact today but because underlying that reorganization was a brilliant study by McKinsey and Co. consulting firm that studied the entire history of Presidential emergency management (sorry I left my copy in a now destroyed FEMA library)! That brilliant study concluded that emergency management authority should be vested solely in the President so that the President could design the approach and delegate appropriately his crisis management system. Anyone involved in Homeland Security or Emergency Management and watching a frustrated WH conduct crisis management operations today should have this document in hand as well as all Congressional committees. I think its recommendations are still sound.
Okay do the savings clauses in both the FEMA Reorganization Plan No. 3 of 1978 and the Homeland Security Act of 2002 save any functions not specifically identified? Well readers of this blog know I don't believe that Reorg Plan #1 of 1978 should be cited for any of FEMA's current programs,functions, or activities.
I have recently learned that the OCC (OFFICE OF THE CHIEF COUNSEL) of FEMA has concluded that the current publication of DMO's (Defense Mobilization Orders) in 44 CFR are legally incorrect and issued without current authority. First, only OLC (the Office of Legal Counsel) in DOJ probably has the resources, intellectual firepower, and analytical materials available to reach this conclusion but IMO these orders are issued by the President not FEMA but just happen to be published in Title 44 of the CFR. Some are still quite important and only OLC could rule accurately on their efficacy.

But it is a repealed DMO on the nation's blood supply that is of interest to me here. Why?
Recent MSM reports on the nation's blood supply have stories like this extracted portion of the WSJ as follows:

"Blood supply officials are urging the U.S. government to adopt so-called pathogen-reduction technology that can kill a wide range of contaminants in blood after it has been donated. One method already in use in about a dozen countries in Europe, Asia and elsewhere destroys most pathogens with a combination of chemicals and ultraviolet light. The Food and Drug Administration declined to approve the technology several years ago, citing possible side effects. But the agency is continuing to evaluate it."

The agency referred to is the FDA. Not sure if internal delegations from HHS or independent authority exists for the above conclusion that FDA is the lead but I do have some doubt.

Okay! The DMO on blood supply was revoked after the issuance of E.O. 12919 in June 1994, superseding a 1969 Executive Order. This clearly gave HHS new authority under the Defense Production Act of 1950 which is one legal authority for the DMO's but not the only one. Remember I believe these are the President's documents not just FEMA or DHS. The repeal of the blood supply DMO was premised on HHS producing a successor DMO which has never been done.

Guess what? In major catastrophes, blood and blood products are crucial to response. So how is this issue overlooked now by all administrations, all departments and agencies, and the entirety of the public health sector?

Some personal experience here. I was privy to the HHS promises to replace the blood DMO. Also within the last year I wrote a long letter to my Senator James Webb telling him about this issue and asking him to look into it? That has not happened. It does however impact DOD and its operations since during Desert Storm and other military events it has often been the case that blood supplies nationally were in a shortage situation and therefore needed a system of rationing and allocation. It turned out not to be needed for Desert Storm but in fact if blood and blood products had been needed then the President IMO had authority to shut off all non-emergency surgery requiring blood to allow its usage for military casualties.

Hey hoping someone knows what legal authority there is to prioritize and allocate blood and blood products in a national shortage because clearly this could be necessary. It is not FEMA or DHS or HHS or FDA that needs to know what to do if necessary but the President of the US.

The Devil Is In The Details

In August 2009 Martha Derthick of U.VA. and former civil servant published an interesting article in the papers of the Rockerfeller Institute arguing that President Bush's efforts conscious or unconscious to ignore or reform the federal system of the US had failed. The article should be read by all intereted in issues of federalism. I don't agree with all of Ms. Derthick's arguments, facts or conclusions yet I believe the article is a contribution to an important looming Constitutional crisis.
My real vocation and avocation over now almost 45 years of work in EM and what is now called HS has been the relationship of the civil government structure to the military structure in the US and its tensions and compromises and successes and failures. The President is not in a "unified postion" as Professor John Woo would argue. He is Commander-In-Chief of the military. But he is also the chief executive of the Executive Branch and its largely civil agencies (whether DOD is a military or civil agency is moot)!
I have also been interested in the integration of technical information in the decision making process of poltical and chief executive types in government organizations. This means how legal, medical, engineering, scientific and other disciplines expertise becomes part of the decision making process.
Recently however I have begun to realize that federalism and its Constutional origins is much more important in many ways then these other too issues or policy fields. But not unrelated! In fact I believe that federalism is in crisis mode and Ms. Derchick's paper's conclusion that Bush's efforts at "reform" have not "failed" but only reflected deeper problems in the federal system/

For many years, the issue in the federal government in domestic civil crisis management was the "Who is in charge?" question? I firmly believe that to some degree this question is destructive of building Emergency Preparedness, Response, Recovery, and Mitigation (and now PKEMA of 2006 has also added "prevention" to the EM litany). My question would be "who has the capabilty (meaning resources, logistics, personnel, training, experience, and legal authority) to accomplish certain missions? Asking this question is based on my bottom line belief that EM is a building block structure starting from the bottom up. Public Safety (including the fire service, policing, EMT, HAZMATs, EM and public health) is a bottom up governance structure and necessarily so. Perhaps even funding should be looked at more closely since the indirect costs and benefits of federalism are never properly analyzed or studied whether by think tanks or governments or academics. Ms.Derchick's article is a good example of that failure, despite her obvious wisdom on many issues.
Okay so where is this going? I have long advocated that for the top 300-500 metropolitian areas their public saftely system and capability is not a local or state asset alone but in fact a national asset and resource and it must be leveraged by the federal government far better than it is now. This might include developing standards and funding of at least 25% of the annual budgets of this largely local public safety system. This does not necessarily mean any direct controls except in certain situations where EM leadership and civil governance or even military systems interfacing with the civil government structure must mobilize the nation's resources on a national basis.

I was a participant in the drafting of Executive Order 12656 (now amended) that replaced a 1969 Executive Order and others that assigned tasks for preparedness to the various civil agencies but which by its own terms assigned no authority to act. After 9/11 I thought it would updated rapidly but that has not happened. It created a new category of "National Security Emergency" which has never been utilized in the US Code and was designed in part to avoid issues with the National Emergenices Act of 1976, a largely procedural statute neither conveying new authority or restricting Presidential authority. In fact at bottom the 1976 statute is merely a disclosure statute mandating that President's when declaring a so-called "National Emergency" publish an Executive Order identifying what legal authority that is being used and what is being done. CRS has excellent periodic analysis of this statute's implementation.

My point however is probably lost at this point and therefor needs restating. Hard nosed analysis of the role of federalism in the US and its cost/benefits for EM and HS must be accomplished and this should be done ASAP. I will be writing more on this topic. But I do recommend Professor Derchick's article as a starting point and hoping you will draw your own conclusions. If you cannot otherwise find it just e-mail me at VLG338@yahoo.com

The Organization of FEMA Regions

In October 2009 NAPA released a report on organization of the FEMA regions. NAPA of course is the National Academy of Public Administration which conducts its studies at the behest of the Congress and is also funded by appropriations usually through a specific department or agency. To my knowledge several NAPA reports have been conducted through FEMA. First and most important was the "Coping with Catastrophe" report released in February 1993. Then FEMA also conducted a report on the role of the National Guard in its mission support role to the states in about 1994. And now this most recent effort.
Why write about the FEMA regions at all? When FEMA was an independent agency the quality of the political appointees at the Regional Director postion was questionable. In my 20 years of FEMA, of over 100 regional directors politically appointed over 1/3 were dismissed for a variety of reasons unrelated to their parties defeat in national elections. Five (5) Carter RD's sued to keep their jobs when fired by President Reagan on the basis that they were not political appointees. That alone should indicate their competency to be RD's since Reorganization Plan No. 3 of 1978 had specifically concluded that they were to be non-career Presidential appointees although not requiring Senate Advise and Consent.
Because of my long standing interest in the subject of delegations of legal authority dictated by both administrative law requirements and SCOTUS rulings I found interesting that delegations to the Regions were uniformly inadequate. In fact that inadequacy led to a major RIF (Reduction in Force) run by OPM in 1983 and 1984 on all FEMA regions. Basically HQs FEMA argued that the regions had little real authority or role and therefore allowed the Regions to be largely destroyed until the James Lee Witt period as Director.
I spent a major effort in time in the mid-90's trying to update the entirety of FEMA's delegations, including the Regions. This was accomplished but never published and sat finally over a year on the dest of the FEMA Chief of Staff without being published in the Federal Register as required by the Administrative Procedure Act of 1947 and the Federal Register Act of 1934. In the last year FEMA did publish updated delegations which have substantial errors and nothing with respect to the regions.

By the way the 2009 NAPA report in its section II from page 35-40 does a nice job of summarizing the PKEMA mandates and accurately indicates almost all have failed to be finalized.

So why discuss the FEMA Regions, 5 of which are headed by non-career employees and 5 by career Acting employees. These are not career reserved positons but are techically dual positions meaning that now as opposed to the days FEMA was under the charter of Reorganization No. 3 of 1978 are no longer mandated to be political appointees. That reorganization plan, which is constantly cited by Congress and FEMA and DHS as in effect, was superseded as a matter of law by the Homeland Security Act of 2002 which while a functional transfer also ended FEMA's status as an independent agency and eliminated all PAS (Presidentially Appointed Senate Confirmed) positions then in FEMA {their were eleven (11) at the time FEMA was roled into DHS.

Because the FEMA Regions existed and were led by politicals prior to DHS they had some status in the political scene of DHS. NO other predecessor organization except the US Coast Guard had true Regional Offices but FEMA except many did have a variety of Field Organizations, e.g. TSA which had staff in all major airports.

There was a statutory mandate in the Homeland Security Act to develop, implement, and operate DHS regions that has been ignored by all three lawyers appointed and confirmed as Secretary DHS so far. The field operations of federal departments and agencies are in fact loaded with political landmines of various kinds, not the least the fact that key Senator's believe they must be consulted on appointments of politicals in their states whether or not they require Senate Confirmation.

The basic conundrum for FEMA in its regional ops is whether these fixed locations should be purely administrative centers or actually part of the federal response to domestic disasters and emergencies. Since the creation of the FCO (Federal Coordination Officer) concept in the Disaster Relief Act of 1974 (Public Law 93-288) these FCO's patterned on the first federal FCO Frank Carlucci, at the time an Assistant Director of OMB, who operated during Tropical Storm Agnes and who actually fired a Cabinet Secretary, George Romney at DHUD, and was backed by President Nixon, was designed to force collaboration and/or cooperation among the disparate Executive Branch organizations to execut the President's will. It should alway be remembered of course that the statutory mandates including the Robert T. Stafford Disaster Relief and Emergency Assistance Act codified at 42 USC Section 5121 and following vest authority directly in the President, or substantially so, and no in so-called "inferior" Executive Branch Officials.

The result is that no Director or Adminstrator of FEMA and no subordinate of them has truly understood how the FEMA Regions and FCO's should operate when both exist. Oddly even NAPA missed out on this relationship as being key in domestic crisis management.

Oddly the current IG of DHS and his Deputy both were once in the independent FEMA, one as Deputy IG FEMA and one as Chief Financial Officer, and both had my draft delegations in hand, but neither has followed up on correction of this very important deficiency in adminstration in DHS and FEMA.

Hey, governance is tough work and the devil is in the details.

What did WH know and When did it know it?

It is now becoming apparent that the WH [White House] has consistently failed to appreciate the probable destruction of the Gulf Coast water related and energy related economy by the BP oil spill. Why? First, almost total reliance on information produced by BP for the first 5 weeks of the event! Second, the failure of the DOJ {Department of Justice}to file protective actions against BP concerning its reporting to the federal government and its data! Third, corruption of the federal reporting system by BP. Fourth, the clear lack of incident command caused by the continued reliance on HSPD-5 as the oil spill crisis command and control and response charter. Five, Congressional lack of understanding of how 40 CFR Part 300 mandates how the federal government responds in oil spills, and how substantially underfunded the Coast Guard (within DHS) and EPA are for this event.

What could be done? Authority to mobilize existing federal resources and assets could be done under the authority of the Defense Production Act of 1950, most recently extended for an addition 5 years last fall by legislation introduced on Senate floor by Senator Dodd, now soon to be ending his Senate career.
Bottom line, is that the BP oil spill is now likely to be the largest manmade contamination of a body of water on the surface of the earth in World History.

Folks, this is the big one, at least for the 21st century so far and will make 9/11/01 and Katrina look like child play. I am now willing to predict that while political fall out at the federal level was perhaps minimal from those two events, the BP oil spill will soon be recognized as requiring a massive assertion of national will if the Gulf States are to survive as political and economic parts of the federal system.
It would be interesting to know if the President of Mexico and President Obama discussed the spill at any length or any regard during the President of Mexico's recent visit. This should have topped immigration and drug enforcement but my guess did not.
Memorial Day will be one calibration point for this event but certainly by Labor Day and certainly by the 2010 Congressional elections this fall the BP event will cause revolutionary change in the Congress, IMO [In My Opinion]!

What do I mean by revolutionary change? The oil industries loyalists funded by big oil will start to be pariahs in the Congress and driven out. They have essentially controlled energy policy and transportation policy for over a century and now that is coming to a disasterous and complicated end. And as always could be wrong but don't think so as of this time.

Proof The Administration Does NOT Get It; "It" Being Civil Crisis Management

Proof the Administration Does not Get It! “It” being Civil Crisis Management:
The documents below are largely planning and preparedness documents and although they contain mandates they are not fully reflected in the current National Response Framework [NRF] and in any portion or in their entirety fail to create a domestic crisis civil crisis management system. The documentation for that conclusion rests in the events which I will caption in future posts as H1N1, Haiti, and the Gulf of Mexico Oil Spill. More to follow!
HSPD – 5: Management of Domestic Incidents [February 2003]
This document is the premise for several other HSPDs. Amended by HSPD-8 to utilize the term "protection" which was added to the litany of EM functions by PKEMA of 2006 discussed elsewhere on this blog. That term simple and without any rebuttal continues to cause confusion in the Emergency Management community. The current HSPD-5, as amended, fails to utilize current concepts such as resilience, mitigation, the role of State partners, key issues of civil-military relations, and current conflicts between the White House leadership roles and those with INCIDENT COMMAND responsibilities.
HSPD – 8: National Preparedness {November 2003]
Given both its content and relationship to other HSPDs this is among the most important HSPDs. But it failure to keep pace with related documents issued subsequently continues to cause confusion and create administrative problems.

Documents below are still in force but which fail to resolve conflicts in their concepts or which fail to incorporate fundamental principles of Emergency Management.

Interim National Preparedness Goal [to implement in part] Homeland Security Presidential Directive 8: National Preparedness [March 31, 2005]
Also released was the INTEGRATED PLANNING SYSTEM-December 2007
The NRF [National Response Framework] was issued in January 2008
The NIMS mandated by the above was most recently revised in December 2008! It would be interesting to have John Brennan try and describe who was the incident commander in the above events and how NIMS was being utilized. Always remember that the FEDs now sanction STATE and Locals who do not incorporate NIMS into their planning, preparedness, and response. What is good for the Goose should be good for the Gander?

HSPD-8 Annex I [TEXT]

In December 2007 Annex I to HSPD-8 was issued as is set forth below in full text:
HSPD 8 Annex 1 Full Text
Homeland Security Presidential Directive-8 Annex I
Purpose

This Annex is intended to further enhance the preparedness of the United States by formally establishing a standard and comprehensive approach to national planning. It is meant to provide guidance for conducting planning in accordance with the Homeland Security Management System in the National Strategy for Homeland Security of 2007.


Background


The National Preparedness Guidelines designates planning as one of eight national priorities and as a target capability common across all homeland security mission areas. The capability to plan and a standard planning process are essential for the effective implementation and assessment of homeland security initiatives to prevent, protect against, respond to, and recover from terrorist attacks or natural disasters. The security of the Nation requires that all levels of government possess the ability to conduct planning, to develop standard, coordinated plans, and to identify and dedicate resources to the development of those plans. It is further imperative that such plans be regularly tested and improved through an inclusive and open process.


Definitions


In this Annex:


The phrase "Federal agencies with a role in homeland security" refers to those departments and agencies as set forth in


National Security Presidential Directive-1 (NSPD-I), (Organization of the National Security Council System) of February 13, 2001,
Homeland Security Presidential Directive-1 (HSPD- 1) (Organization and Operation of the Homeland Security Council) of October 29, 2001,
the National Response Plan as directed by Homeland Security Presidential Directive-5 (HSPD-5) (Management of Domestic Incidents) of February 28, 2003,
the National Infrastructure Protection Plan as directed by Homeland Security Presidential Directive-7 (HSPD-7) (Critical Infrastructure Identification, Prioritization, and Protection) of December 17, 2003, and
the National Implementation Plan for the War on Terror.


The term "National Planning Scenario" means an event or threat scenario appropriate for national planning by and among all levels and jurisdictions of government, and in coordination with private, non-profit, and volunteer organizations.
The term "strategic guidance statement" refers to a document that outlines strategic priorities, broad national strategic objectives, and basic assumptions; describes the envisioned end-state; and establishes the general means necessary to accomplish that end.
The term "strategic plan" refers to a plan that defines the mission, identifies authorities, delineates roles and responsibilities, establishes mission essential tasks, determines required and priority capabilities, and develops performance and effectiveness measures.
The term "concept plan" or "CONPLAN" refers to a plan that briefly describes the concept of operations for integrating and synchronizing existing Federal capabilities to accomplish the mission essential tasks, and describes how Federal capabilities will be integrated into and support regional, State, local, and tribal plans.
The term "operations plan" or "OPLAN" refers to a plan that identifies detailed resource, personnel and asset allocations in order to execute the objectives of the strategic plan and turn strategic priorities into operational execution. An operations plan contains a full description of the concept of operations, to include specific roles and responsibilities, tasks, integration, and actions required, with supporting support function annexes as appropriate.
The term "tactical plan" refers to the detailed development and identification of individual tasks, actions, and objectives tailored to specific situations and fact patterns at an operational level. Tactical planning is meant to support and achieve the objectives of the operations plan.


Policy


It is the policy of the United States Government to enhance the preparedness of the Nation by developing and maintaining a standardized approach to national planning to integrate and effect policy and operational objectives to prevent, protect against, respond to, and recover from all hazards, and comprises:


a standardized Federal planning process;
national planning doctrine;
resourced operational and tactical planning capabilities at each Federal department and agency with a role in homeland security;
strategic guidance, strategic plans, concepts of operations, and operations plans and as appropriate, tactical plans; and
a system for integrating plans among all levels of government.


Development of a Standardized National Planning Process and Integration System


There is established a planning process involving three levels of planning:


strategic;
operational; and
tactical.


The planning process will result in the development of a family of related planning documents to include strategic guidance statements, strategic plans, concepts of operations, operations plans, and as appropriate, tactical plans.


No later than 2 months after the issuance of this Annex, the Secretary of Homeland Security (Secretary) shall submit to the President for approval, through the Assistant to the President for Homeland Security and Counterterrorism, an Integrated Planning System (IPS) that is developed in coordination with the heads of Federal agencies with a role in homeland security and that


provides common processes for developing plans,
serves to implement phase one of the Homeland Security Management System, and
includes the following:


national planning doctrine and planning guidance, instruction, and process to ensure consistent planning across the Federal Government;
a mechanism that provides for concept development to identify and analyze the mission and potential courses of action;
a description of the process that allows for plan refinement and proper execution to reflect developments in risk, capabilities, or policies, as well as to incorporate lessons learned from exercises and actual events;
a description of the process that links regional, State, local, and tribal plans, planning cycles, and processes and allows these plans to inform the development of Federal plans;
a process for fostering vertical and horizontal integration of Federal, State, local, and tribal plans that allows for State, local, and tribal capability assessments to feed into Federal plans; and
a guide for all-hazards planning, with comprehensive, practical guidance and instruction on fundamental planning principles that can be used at Federal, State, local, and tribal levels to assist the planning process.


Development of National Planning Scenarios


National Planning Scenarios shall be developed, updated, or amended as necessary by the Secretary, in coordination with the heads of Federal agencies with a role in homeland security, and shall be informed by a risk-based analysis intended to focus planning efforts on the most likely or most dangerous threats to the homeland. The Secretary shall update the National Planning Scenarios on a biennial basis, or more frequently if necessary, and notify the Assistant to the President for Homeland Security and Counterterrorism of any updates.


Federal Roles and Responsibilities


After the approval of the IPS, the Secretary shall develop, in coordination with the heads of Federal agencies with a role in homeland security, a strategic guidance statement for each National Planning Scenario developed under section 34. A strategic guidance statement shall be effective upon its approval by the Secretary.
No later than 90 days after the approval of each strategic guidance statement, the Secretary shall develop, in coordination with the heads of Federal agencies with a role in homeland security and the Director of the National Counterterrorism Center (consistent with section 119 of the National Security Act of 1947, as amended (50 U.S.C. 404o)), a corresponding strategic plan. A strategic plan shall be effective upon its approval by the Secretary.
No later than 180 days after the approval of each strategic plan under section 36, the Secretary, in coordination with the heads of Federal agencies with a role in homeland security and in consultation with appropriate State, local, and tribal governments, shall develop a concept of operations plan (CONPLAN). A CONPLAN shall be effective upon its approval by the Secretary.
No later than 120 days after approval of each CONPLAN under section 37, the head of each Federal agency with a role in homeland security shall develop an operations plan (OPLAN) and, at his or her discretion, a tactical plan to execute the roles and responsibilities assigned to that agency in each CONPLAN. The development of an OPLAN (and any tactical plan) may begin before the commensurate strategic plan and CONPLAN are completed.
As part of regular budget submissions to the Director of the Office of Management and Budget, each Federal agency with a role in homeland security shall incorporate into its overall mission priorities and guidance constraints the following elements:


the estimated costs, if any, of its role in Federal strategic, operational, and tactical planning; and
the estimated costs of executing its responsibilities under any approved OPLAN.


The Secretary, in coordination with Federal agencies with a role in homeland security, shall develop a National Homeland Security Plan (Plan) that is an overarching strategic plan to guide national efforts to execute the National Strategy for Homeland Security of 2007. This Plan is intended to facilitate Federal homeland security coordination, establish priorities, and define roles and responsibilities for preventing, protecting against, responding to, and recovering from man-made or natural disasters. The Plan shall be submitted to the President for approval through the Assistant to the President for Homeland Security and Counterterrorism within 120 days of the approval of this Annex.


State and Local Planning


Developing a synchronized and coordinated planning capability at all levels of government is of paramount national importance. To that end, the Secretary shall:


expand opportunities for education, training, and professional development for planning communities at all levels, consistent with Executive Order 13434, National Security Professional Development, of May 17, 2007;
identify opportunities within Federal homeland security preparedness programs, to foster effective synchronization of Federal, State, local, and tribal plans; and
expand opportunities in the National Exercise Program to rigorously test and validate plans for a broader spectrum of the national planning community.


General Provisions


All general provisions of HSPD-8 apply to this Annex.
This Annex is intended only to require Federal agencies with a role in homeland security to standardize their plans, participate in the broader Federal planning system for the purposes of interagency coordination, and participate in the development of formal plans as needed.


Conforming Amendments to HSPD-5


HSPD-5 (Management of Domestic Incidents) of February 28, 2003 is amended as follows:


Striking "prevent, prepare for, respond to, and recover from" in section 3 and inserting "prevent, protect against, respond to, and recover from";
After "coordinating Federal" in section 4, inserting "preparedness activities and", and striking "prepare for";
Striking "preventing, preparing for, responding to, and recovering from" in section 7 and inserting "preparedness and activities to prevent, protect against, respond to, and recover from";
Striking "prevention, preparation, response, and recovery from" in section 10 and inserting "preparedness and activities to prevent, protect against, respond to, and recover from";
Striking "prepare for," in section 12 and inserting "protect against,";
Striking "prevention, preparedness, response, and recovery plans" in section 16 and inserting "prevention, protection, response, and recovery plans for use during an impending or actual incident"; and
Striking "prevention, preparedness," in section 18 and inserting "preparedness and operational prevention, protection,".


Conforming Amendments to HSPD-8


HSPD-8 (National Preparedness) of December 17, 2003 is amended as follows:


Striking "prevent and respond to" in section 1 and inserting "prevent, protect against, respond to, and recover from";
After "prevent," in section 2(h), inserting "protect against,";
After "prevention" in section 3, inserting "and protection";
After "prevent" in section 6,inserting "protect against";
After "prevention" in section 17, inserting "protection"; and
After "prevent" in section 19, inserting "protect against".

HSPD-8 Analysis and Limitations--Part 1-Text as Issued

The text of HSPD-8 as it originally appeared follows:
HSPD 8 Full Text
Homeland Security Presidential Directive-8

December 17, 2003

SUBJECT: National Preparedness

Purpose

This directive establishes policies to strengthen the preparedness of the United States to prevent and respond to threatened or actual domestic terrorist attacks, major disasters, and other emergencies by requiring a national domestic all-hazards preparedness goal, establishing mechanisms for improved delivery of Federal preparedness assistance to State and local governments, and outlining actions to strengthen preparedness capabilities of Federal, State, and local entities.


Definitions


For the purposes of this directive:
The term "all-hazards preparedness" refers to preparedness for domestic terrorist attacks, major disasters, and other emergencies.
The term "Federal departments and agencies" means those executive depart-ments enumerated in 5 U.S.C. 101, and the Department of Homeland Security; independent establishments as defined by 5 U.S.C. 104(1); Government corporations as defined by 5 U.S.C. 103(1); and the United States Postal Service.
The term "Federal preparedness assistance" means Federal department and agency grants, cooperative agreements, loans, loan guarantees, training, and/or technical assistance provided to State and local governments and the private sector to prevent, prepare for, respond to, and recover from terrorist attacks, major disasters, and other emergencies. Unless noted otherwise, the term "assistance" will refer to Federal assistance programs.
The term "first responder" refers to those individuals who in the early stages of an incident are responsible for the protection and preservation of life, property, evidence, and the environment, including emergency response providers as defined in section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101), as well as emergency management, public health, clinical care, public works, and other skilled support personnel (such as equipment operators) that provide immediate support services during prevention, response, and recovery operations.
The terms "major disaster" and "emergency" have the meanings given in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122).
The term "major events" refers to domestic terrorist attacks, major disasters, and other emergencies.
The term "national homeland security preparedness-related exercises" refers to homeland security-related exercises that train and test national decision makers and utilize resources of multiple Federal departments and agencies. Such exercises may involve State and local first responders when appropriate. Such exercises do not include those exercises conducted solely within a single Federal department or agency.
The term "preparedness" refers to the existence of plans, procedures, policies, training, and equipment necessary at the Federal, State, and local level to maximize the ability to prevent, respond to, and recover from major events. The term "readiness" is used interchangeably with preparedness.
The term "prevention" refers to activities undertaken by the first responder community during the early stages of an incident to reduce the likelihood or consequences of threatened or actual terrorist attacks. More general and broader efforts to deter, disrupt, or thwart terrorism are not addressed in this directive.
The term "Secretary" means the Secretary of Homeland Security.
The terms "State," and "local government," when used in a geographical sense, have the same meanings given to those terms in section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101).


Relationship to HSPD-5


This directive is a companion to HSPD-5, which identifies steps for improved coordination in response to incidents. This directive describes the way Federal departments and agencies will prepare for such a response, including prevention activities during the early stages of a terrorism incident.


Development of a National Preparedness Goal


The Secretary is the principal Federal official for coordinating the implementation of all-hazards preparedness in the United States. In cooperation with other Federal departments and agencies, the Secretary coordinates the preparedness of Federal response assets, and the support for, and assessment of, the preparedness of State and local first responders.
To help ensure the preparedness of the Nation to prevent, respond to, and recover from threatened and actual domestic terrorist attacks, major disasters, and other emergencies, the Secretary, in coordination with the heads of other appropriate Federal departments and agencies and in consultation with State and local governments, shall develop a national domestic all-hazards preparedness goal. Federal departments and agencies will work to achieve this goal by:
providing for effective, efficient, and timely delivery of Federal preparedness assistance to State and local governments; and
supporting efforts to ensure first responders are prepared to respond to major events, especially prevention of and response to threatened terrorist attacks.


The national preparedness goal will establish measurable readiness priorities and targets that appropriately balance the potential threat and magnitude of terrorist attacks, major disasters, and other emergencies with the resources required to prevent, respond to, and recover from them. It will also include readiness metrics and elements that support the national preparedness goal including standards for preparedness assessments and strategies, and a system for assessing the Nation's overall preparedness to respond to major events, especially those involving acts of terrorism.
The Secretary will submit the national preparedness goal to me through the Homeland Security Council (HSC) for review and approval prior to, or concurrently with, the Department of Homeland Security's Fiscal Year 2006 budget submission to the Office of Management and Budget.


Federal Preparedness Assistance


The Secretary, in coordination with the Attorney General, the Secretary of Health and Human Services (HHS), and the heads of other Federal departments and agencies that provide assistance for first responder preparedness, will establish a single point of access to Federal preparedness assistance program information within 60 days of the issuance of this directive. The Secretary will submit to me through the HSC recommendations of specific Federal department and agency programs to be part of the coordinated approach. All Federal departments and agencies will cooperate with this effort. Agencies will continue to issue financial assistance awards consistent with applicable laws and regulations and will ensure that program announcements, solicitations, application instructions, and other guidance documents are consistent with other Federal preparedness programs to the extent possible. Full implementation of a closely coordinated interagency grant process will be completed by September 30, 2005.
To the extent permitted by law, the primary mechanism for delivery of Federal preparedness assistance will be awards to the States. Awards will be delivered in a form that allows the recipients to apply the assistance to the highest priority preparedness requirements at the appro-priate level of government. To the extent permitted by law, Federal preparedness assistance will be predicated on adoption of Statewide comprehensive all-hazards preparedness strategies. The strategies should be consistent with the national preparedness goal, should assess the most effective ways to enhance preparedness, should address areas facing higher risk, especially to terrorism, and should also address local government concerns and Citizen Corps efforts. The Secretary, in coordination with the heads of other appropriate Federal departments and agencies, will review and approve strategies submitted by the States. To the extent permitted by law, adoption of approved Statewide strategies will be a requirement for receiving Federal preparedness assistance at all levels of government by September 30, 2005.
In making allocations of Federal preparedness assistance to the States, the Secretary, the Attorney General, the Secretary of HHS, the Secretary of Transportation, the Secretary of Energy, the Secretary of Veterans Affairs, the Administrator of the Environmental Protection Agency, and the heads of other Federal departments and agencies that provide assistance for first responder preparedness will base those allocations on assessments of population concentrations, critical infrastructures, and other significant risk factors, particularly terrorism threats, to the extent permitted by law.
Federal preparedness assistance will support State and local entities' efforts including planning, training, exercises, interoperability, and equipment acquisition for major events as well as capacity building for prevention activities such as information gathering, detection, deterrence, and collaboration related to terrorist attacks. Such assistance is not primarily intended to support existing capacity to address normal local first responder operations, but to build capacity to address major events, especially terrorism.
The Attorney General, the Secretary of HHS, the Secretary of Transportation, the Secretary of Energy, the Secretary of Veterans Affairs, the Administrator of the Environmental Protection Agency, and the heads of other Federal departments and agencies that provide assistance for first responder preparedness shall coordinate with the Secretary to ensure that such assistance supports and is consistent with the national preparedness goal.
Federal departments and agencies will develop appropriate mechanisms to ensure rapid obligation and disbursement of funds from their programs to the States, from States to the local community level, and from local entities to the end users to derive maximum benefit from the assistance provided. Federal departments and agencies will report annually to the Secretary on the obligation, expenditure status, and the use of funds associated with Federal preparedness assistance programs.


Equipment


The Secretary, in coordination with State and local officials, first responder organizations, the private sector and other Federal civilian departments and agencies, shall establish and implement streamlined procedures for the ongoing development and adoption of appropriate first responder equipment standards that support nationwide interoperability and other capabilities consistent with the national preparedness goal, including the safety and health of first responders.
To the extent permitted by law, equipment purchased through Federal preparedness assistance for first responders shall conform to equipment standards in place at time of purchase. Other Federal departments and agencies that support the purchase of first responder equipment will coordinate their programs with the Department of Homeland Security and conform to the same standards.
The Secretary, in coordination with other appropriate Federal departments and agencies and in consultation with State and local governments, will develop plans to identify and address national first responder equipment research and development needs based upon assessments of current and future threats. Other Federal departments and agencies that support preparedness research and development activities shall coordinate their efforts with the Department of Homeland Security and ensure they support the national preparedness goal.


Training and Exercises


The Secretary, in coordination with the Secretary of HHS, the Attorney General, and other appropriate Federal departments and agencies and in consultation with State and local governments, shall establish and maintain a comprehensive training program to meet the national preparedness goal. The program will identify standards and maximize the effectiveness of existing Federal programs and financial assistance and include training for the Nation's first responders, officials, and others with major event preparedness, prevention, response, and recovery roles. Federal departments and agencies shall include private organizations in the accreditation and delivery of preparedness training as appropriate and to the extent permitted by law.
The Secretary, in coordination with other appropriate Federal departments and agencies, shall establish a national program and a multi-year planning system to conduct homeland security preparedness-related exercises that reinforces identified training standards, provides for evaluation of readiness, and supports the national preparedness goal. The establishment and maintenance of the program will be conducted in maximum collaboration with State and local governments and appropriate private sector entities. All Federal departments and agencies that conduct national homeland security preparedness-related exercises shall participate in a collaborative, interagency process to designate such exercises on a consensus basis and create a master exercise calendar. The Secretary will ensure that exercises included in the calendar support the national preparedness goal. At the time of designation, Federal departments and agencies will identify their level of participation in national homeland security preparedness- related exercises. The Secretary will develop a multi-year national homeland security preparedness-related exercise plan and submit the plan to me through the HSC for review and approval.
The Secretary shall develop and maintain a system to collect, analyze, and disseminate lessons learned, best practices, and information from exercises, training events, research, and other sources, including actual incidents, and establish procedures to improve national preparedness to prevent, respond to, and recover from major events. The Secretary, in coordination with other Federal departments and agencies and State and local governments, will identify relevant classes of homeland-security related information and appropriate means of transmission for the information to be included in the system. Federal departments and agencies are directed, and State and local governments are requested, to provide this information to the Secretary to the extent permitted by law.


Federal Department and Agency Preparedness


The head of each Federal department or agency shall undertake actions to support the national preparedness goal, including adoption of quantifiable performance measurements in the areas of training, planning, equipment, and exercises for Federal incident management and asset preparedness, to the extent permitted by law. Specialized Federal assets such as teams, stockpiles, and caches shall be maintained at levels consistent with the national preparedness goal and be available for response activities as set forth in the National Response Plan, other appropriate operational documents, and applicable authorities or guidance. Relevant Federal regulatory requirements should be consistent with the national preparedness goal. Nothing in this directive shall limit the authority of the Secretary of Defense with regard to the command and control, training, planning, equipment, exercises, or employment of Department of Defense forces, or the allocation of Department of Defense resources.
The Secretary, in coordination with other appropriate Federal civilian departments and agencies, shall develop and maintain a Federal response capability inventory that includes the performance parameters of the capability, the timeframe within which the capability can be brought to bear on an incident, and the readiness of such capability to respond to domestic incidents. The Department of Defense will provide to the Secretary information describing the organizations and functions within the Department of Defense that may be utilized to provide support to civil authorities during a domestic crisis.


Citizen Participation


The Secretary shall work with other appropriate Federal departments and agencies as well as State and local governments and the private sector to encourage active citizen participation and involvement in preparedness efforts. The Secretary shall periodically review and identify the best community practices for integrating private citizen capabilities into local preparedness efforts.


Public Communication


The Secretary, in consultation with other Federal departments and agencies, State and local governments, and non-governmental organizations, shall develop a comprehensive plan to provide accurate and timely preparedness information to public citizens, first responders, units of government, the private sector, and other interested parties and mechanisms for coordination at all levels of government.


Assessment and Evaluation


The Secretary shall provide to me through the Assistant to the President for Homeland Security an annual status report of the Nation's level of preparedness, including State capabilities, the readiness of Federal civil response assets, the utilization of mutual aid, and an assessment of how the Federal first responder preparedness assistance programs support the national preparedness goal. The first report will be provided within 1 year of establishment of the national preparedness goal.
Nothing in this directive alters, or impedes the ability to carry out, the authorities of the Federal departments and agencies to perform their responsibilities under law and consistent with applicable legal authorities and presidential guidance.
Actions pertaining to the funding and administration of financial assistance and all other activities, efforts, and policies in this directive shall be executed in accordance with law. To the extent permitted by law, these policies will be established and carried out in consultation with State and local governments.
This directive is intended only to improve the internal management of the executive branch of the Federal Government, and it is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

The Limitations of HSPD-5 for Domestic Crisis Management-TEXT of HSPD-5

The full text of the original version of HSPD-5 appears below:

HSPD 5 Full Text
Homeland Security Presidential Directive-5

February 28, 2003

SUBJECT: Management of Domestic Incidents

Purpose

To enhance the ability of the United States to manage domestic incidents by establishing a single, comprehensive national incident management system.

Definitions


In this directive:
the term "Secretary" means the Secretary of Homeland Security.
the term "Federal departments and agencies" means those executive departments enumerated in 5 U.S.C. 101, together with the Department of Homeland Security; independent establishments as defined by 5 U.S.C. 104(1); government corporations as defined by 5 U.S.C. 103(1); and the United States Postal Service.
the terms "State," "local," and the "United States" when it is used in a geographical sense, have the same meanings as used in the Homeland Security Act of 2002, Public Law 107-296.


Policy


To prevent, prepare for, respond to, and recover from terrorist attacks, major disasters, and other emergencies, the United States Government shall establish a single, compre-hensive approach to domestic incident management. The objective of the United States Government is to ensure that all levels of government across the Nation have the capability to work efficiently and effectively together, using a national approach to domestic incident management. In these efforts, with regard to domestic incidents, the United States Government treats crisis management and consequence management as a single, integrated function, rather than as two separate functions.


The Secretary of Homeland Security is the principal Federal official for domestic incident management. Pursuant to the Homeland Security Act of 2002, the Secretary is responsible for coordinating Federal operations within the United States to prepare for, respond to, and recover from terrorist attacks, major disasters, and other emergencies. The Secretary shall coordinate the Federal Government's resources utilized in response to or recovery from terrorist attacks, major disasters, or other emergencies if and when any one of the following four conditions applies: (1) a Federal department or agency acting under its own authority has requested the assistance of the Secretary; (2) the resources of State and local authorities are overwhelmed and Federal assistance has been requested by the appropriate State and local authorities; (3) more than one Federal department or agency has become substantially involved in responding to the incident; or (4) the Secretary has been directed to assume responsibility for managing the domestic incident by the President.


Nothing in this directive alters, or impedes the ability to carry out, the authorities of Federal departments and agencies to perform their responsibilities under law. All Federal departments and agencies shall cooperate with the Secretary in the Secretary's domestic incident management role.


The Federal Government recognizes the roles and responsibilities of State and local authorities in domestic incident management. Initial responsibility for managing domestic incidents generally falls on State and local authorities. The Federal Government will assist State and local authorities when their resources are overwhelmed, or when Federal interests are involved. The Secretary will coordinate with State and local governments to ensure adequate planning, equipment, training, and exercise activities. The Secretary will also provide assistance to State and local governments to develop all-hazards plans and capabilities, including those of greatest importance to the security of the United States, and will ensure that State, local, and Federal plans are compatible.


The Federal Government recognizes the role that the private and nongovernmental sectors play in preventing, preparing for, responding to, and recovering from terrorist attacks, major disasters, and other emergencies. The Secretary will coordinate with the private and nongovernmental sectors to ensure adequate planning, equipment, training, and exercise activities and to promote partnerships to address incident management capabilities.


The Attorney General has lead responsibility for criminal investigations of terrorist acts or terrorist threats by individuals or groups inside the United States, or directed at United States citizens or institutions abroad, where such acts are within the Federal criminal jurisdiction of the United States, as well as for related intelligence collection activities within the United States, subject to the National Security Act of 1947 and other applicable law, Executive Order 12333, and Attorney General-approved procedures pursuant to that Executive Order. Generally acting through the Federal Bureau of Investigation, the Attorney General, in cooperation with other Federal departments and agencies engaged in activities to protect our national security, shall also coordinate the activities of the other members of the law enforcement community to detect, prevent, preempt, and disrupt terrorist attacks against the United States. Following a terrorist threat or an actual incident that falls within the criminal jurisdiction of the United States, the full capabilities of the United States shall be dedicated, consistent with United States law and with activities of other Federal departments and agencies to protect our national security, to assisting the Attorney General to identify the perpetrators and bring them to justice. The Attorney General and the Secretary shall establish appropriate relationships and mechanisms for cooperation and coordination between their two departments.


Nothing in this directive impairs or otherwise affects the authority of the Secretary of Defense over the Department of Defense, including the chain of command for military forces from the President as Commander in Chief, to the Secretary of Defense, to the commander of military forces, or military command and control procedures. The Secretary of Defense shall provide military support to civil authorities for domestic incidents as directed by the President or when consistent with military readiness and appropriate under the circumstances and the law. The Secretary of Defense shall retain command of military forces providing civil support. The Secretary of Defense and the Secretary shall establish appropriate relationships and mechanisms for cooperation and coordination between their two departments.


The Secretary of State has the responsibility, consistent with other United States Government activities to protect our national security, to coordinate international activities related to the prevention, preparation, response, and recovery from a domestic incident, and for the protection of United States citizens and United States interests overseas. The Secretary of State and the Secretary shall establish appropriate relationships and mechanisms for cooperation and coordination between their two departments.


The Assistant to the President for Homeland Security and the Assistant to the President for National Security Affairs shall be responsible for interagency policy coordination on domestic and international incident management, respectively, as directed by the President. The Assistant to the President for Homeland Security and the Assistant to the President for National Security Affairs shall work together to ensure that the United States domestic and international incident management efforts are seamlessly united.


The Secretary shall ensure that, as appropriate, information related to domestic incidents is gathered and provided to the public, the private sector, State and local authorities, Federal departments and agencies, and, generally through the Assistant to the President for Homeland Security, to the President. The Secretary shall provide standardized, quantitative reports to the Assistant to the President for Homeland Security on the readiness and preparedness of the Nation -- at all levels of government -- to prevent, prepare for, respond to, and recover from domestic incidents.


Nothing in this directive shall be construed to grant to any Assistant to the President any authority to issue orders to Federal departments and agencies, their officers, or their employees.

Tasking


The heads of all Federal departments and agencies are directed to provide their full and prompt cooperation, resources, and support, as appropriate and consistent with their own responsibilities for protecting our national security, to the Secretary, the Attorney General, the Secretary of Defense, and the Secretary of State in the exercise of the individual leadership responsibilities and missions assigned in paragraphs (4), (8), (9), and (10), respectively, above.


The Secretary shall develop, submit for review to the Homeland Security Council, and administer a National Incident Management System (NIMS). This system will provide a consistent nationwide approach for Federal, State, and local governments to work effectively and efficiently together to prepare for, respond to, and recover from domestic incidents, regardless of cause, size, or complexity. To provide for interoperability and compatibility among Federal, State, and local capabilities, the NIMS will include a core set of concepts, principles, terminology, and technologies covering the incident command system; multi-agency coordination systems; unified command; training; identification and management of resources (including systems for classifying types of resources); qualifications and certification; and the collection, tracking, and reporting of incident information and incident resources.


The Secretary shall develop, submit for review to the Homeland Security Council, and administer a National Response Plan (NRP). The Secretary shall consult with appropriate Assistants to the President (including the Assistant to the President for Economic Policy) and the Director of the Office of Science and Technology Policy, and other such Federal officials as may be appropriate, in developing and implementing the NRP. This plan shall integrate Federal Government domestic prevention, preparedness, response, and recovery plans into one all-discipline, all-hazards plan. The NRP shall be unclassified. If certain operational aspects require classification, they shall be included in classified annexes to the NRP.


The NRP, using the NIMS, shall, with regard to response to domestic incidents, provide the structure and mechanisms for national level policy and operational direction for Federal support to State and local incident managers and for exercising direct Federal authorities and responsibilities, as appropriate.
The NRP will include protocols for operating under different threats or threat levels; incorporation of existing Federal emergency and incident management plans (with appropriate modifications and revisions) as either integrated components of the NRP or as supporting operational plans; and additional opera-tional plans or annexes, as appropriate, including public affairs and intergovernmental communications.
The NRP will include a consistent approach to reporting incidents, providing assessments, and making recommendations to the President, the Secretary, and the Homeland Security Council.
The NRP will include rigorous requirements for continuous improvements from testing, exercising, experience with incidents, and new information and technologies.


The Secretary shall:


By April 1, 2003, (1) develop and publish an initial version of the NRP, in consultation with other Federal departments and agencies; and (2) provide the Assistant to the President for Homeland Security with a plan for full development and implementation of the NRP.
By June 1, 2003, (1) in consultation with Federal departments and agencies and with State and local governments, develop a national system of standards, guidelines, and protocols to implement the NIMS; and (2) establish a mechanism for ensuring ongoing management and maintenance of the NIMS, including regular consultation with other Federal departments and agencies and with State and local governments.
By September 1, 2003, in consultation with Federal departments and agencies and the Assistant to the President for Homeland Security, review existing authorities and regulations and prepare recommendations for the President on revisions necessary to implement fully the NRP.


The heads of Federal departments and agencies shall adopt the NIMS within their departments and agencies and shall provide support and assistance to the Secretary in the development and maintenance of the NIMS. All Federal departments and agencies will use the NIMS in their domestic incident management and emergency prevention, preparedness, response, recovery, and mitigation activities, as well as those actions taken in support of State or local entities. The heads of Federal departments and agencies shall participate in the NRP, shall assist and support the Secretary in the development and maintenance of the NRP, and shall participate in and use domestic incident reporting systems and protocols established by the Secretary.


The head of each Federal department and agency shall:


By June 1, 2003, make initial revisions to existing plans in accordance with the initial version of the NRP.
By August 1, 2003, submit a plan to adopt and implement the NIMS to the Secretary and the Assistant to the President for Homeland Security. The Assistant to the President for Homeland Security shall advise the President on whether such plans effectively implement the NIMS.


Beginning in Fiscal Year 2005, Federal departments and agencies shall make adoption of the NIMS a requirement, to the extent permitted by law, for providing Federal preparedness assistance through grants, contracts, or other activities. The Secretary shall develop standards and guidelines for determining whether a State or local entity has adopted the NIMS.