Tuesday, August 31, 2010

Intergovernmental Relations

As Hurricane Earl approaches East Coast of the US time for a repeat post from this blogger. Here goes:

Portions of this article were previously published in BEST PRACTICES In Emergency Services, Vol.6 No.8, August 2003

The Department of Homeland Security and Its Relationship to Local Government

On November 25, 2002, President George W. Bush signed into law the Homeland Security Act of 2002 (Public Law 107-296). The enactment came after a formal legislative process that ran at full speed after the President reversed course and announced on June 6, 2002 that he supported creation of the new Cabinet Department. A version of enacted bill was submitted by the Administration on June 18, 2002, and introduced on behalf of the Administration.

This time frame left little opportunity for lobbying by governmental entities, especially State and local governments. It did allow for a number of potential vendors, and interest groups to heavily and effectively lobby during this time frame. The President’s bill was drafted in intense secrecy by (1) Tom Ridge; (2) Andrew H. Card, the White House Chief of Staff; (3) Alberto R. Gonzales, the White House Counsel; (4) Mitchell E. Daniels, Jr., the Director of OMB, and (5) Joshua B. Bolten, Deputy Chief of Staff for Policy (now the Director of OMB succeeding Mitch Daniels). All are lawyers. None except Tom Ridge had held elected state-wide office and none have backgrounds as first responders. The President’s bill was submitted to Congress on June 18th and introduced by request in the House of Representatives on June 26th as H.R. 5005 was referred to a Select Committee chaired by Richard Armey (R-Tex.) the Majority Leader of the House. It passed the House on July 26th, and after consideration by the Senate with amendments passed the Senate on November 19th. The House then voted approval of the Senate amendments and it was enrolled and sent to the President who signed it on November 25th.

The Act’s legislative history is short. Even prior to the events of September 11th, 2001, a series of Congressionally mandated Commissions (Bremer, Deutch, Hart-Rudman, and Gilmore) had recommended organizational restructuring of the Executive Branch to more effectively and efficiently prepare for and respond to terrorism and the potential the terrorists would employ weapons of mass destruction (WMD). These reports are available from me at vlg338@yahoo.com. I have recommended indirectly to Lee Hamilton that the Hart-Rudman Commission reassemble to produce a comprehensive status report on their recommendations as we approach a full decade since they last reported. It should also be specifically noted that a bill passed the House of Representatives (H.R. 4210 in July 2000, Second Session 106th Congress) that had been orchestrated by Representative Tilly Fowler (R-Florida). The Senate did not act on that bill. The original bill as introduced is available on this blog under FEMA Historical Materials and on the FAS web sites at http://www.fas.org/irp/agency/dhs/fema/index/html

Five Under Secretary positions were created in the new statute with three of direct concern to local government. First, the Emergency Preparedness and Response Directorate composed primarily of the former Federal Emergency Management Agency. Secondly, the largest directorate by number of employees, the Border and Transportation Security Directorate which also include the former Office of National Preparedness from FEMA (this office had been established by administrative order to implement a Presidential initiative on May 8th, 2001, and is being returned to the Preparedness Division of the EP&R Directorate on July 13th , 2003 and its staff possibly dispersed).The Office of National Preparedness had administered the EMPG grants authorized under Title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Public Law 100-707) It also included the Office of Domestic Preparedness (headed by a Presidential appointee, Susan Mencer, a former FBI agent, from the Department of Justice, Office of Justice Programs, which had provided grants to State and local governments under the Anti-Terrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) and the so-called Nunn-Lugar-Domenici Act (Title XIV of the 1996 DoD Authorization Act (Public Law 104-201), or under authority of various Commerce, Justice, State Appropriation Acts. Some of this money had been passed through the United States Fire Administration, part of FEMA, which was authorized in the Anti-Terrorism and Effective Death Penalty Act of 1996 and authority of Presidential Directive 39. It should be noted that there is an inherent statutory conflict between the EP&R Directorates response authority for the federal establishment under Title V of the Homeland Security Act of 2002 and the Office of Domestic Preparedness under Section 430 of the Homeland Security Act of 2002. It is of great interest that the responsibility for the development and implementation of the mandated National Response Plan (HSPD-5) was originally assigned to Admiral Loy (Ret.) and the Transportation Security Administration. Admiral Loy is now the Deputy Secretary for the Department. Now plan development and integration is located in a new Integration Center reporting to the Director.

A third component of the new department of interest was the Office of State and Local Government Coordination established by Section 801 of the Act. At the moment, this Office has no grant money but Secretary Ridge has testified (May 1st 2003) that all State and local grants should come through this office. As Ridge says “One-stop shopping.” Ridge notified Congress on January 21, 2004 that all state and local grants would be awarded by the Office of State and Local Coordination to be renamed the Office of State and Local Preparedness and Coordination.

It should be noted that there are in addition the three other directorates headed by Under Secretaries that are of less immediate concern to local governments and first responders. These are (1) the Under Secretary for Science and Technology; (2) the Under Secretary for Information Analysis and Infrastructure Protection; and (3) the Under Secretary for Management.

Monies for State and local government for the three years ending September 11, 2004, will have come in both annual appropriation acts and supplemental appropriation acts. Promised originally for State and local first responders shortly after September 11, 2001, was the amount of $3.5 Billion. It will only be possible to determine actually outlays after September 11, 2004, but it appears that that amount will only be reached, if at all, by including the bioterrorism preparedness monies authorized under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Public Law 107-188; June 12, 2002). Perhaps it makes common sense to include these monies even though the public health system, not traditional first responders, has been the recipient.

Secretary Tom Ridge has stated in various speeches that if the President’s FY 04 budget submission is acted on favorably by Congress a total of $8 Billion dollars will go out to state and local governments for homeland security. The enactment of tax reductions, however, will lower the caps for the appropriation committee chairs in Congress and affect the ceilings of each of the thirteen appropriation acts (one of which now will be solely for the Department of Homeland Security) for fiscal years 2005 which begins October 1st, 2004. The Department of Homeland Security Appropriations Act, FY 2004, Public Law 108-90 became law on October 1, 2003.

Perhaps it is too soon to measure the true impact on local governments and their operations by the new department. All grant monies will continue to go first to the States, with some earmarked percentage for State purposes. The States will also continue to take indirect costs authorized by OMB Circular A-87 which may exceed 20% of total grant outlays. It is also of interest that there are restrictions on standard setting for technology in the new Department, so that voluntary consensus standard setting organizations such as NFPA and ANSI will be very important.

Despite promises, very little has been done administratively to ease the burden operationally or financially on State and local government’s preparedness and response operations. $20 billion dollars with relatively little in the way of earmarks will go out to State governments under the provisions of the Jobs and Growth Tax Relief Reconciliation Act of 2003, H.R. 2/P.L. 108-27 (May 28, 2003; 117Stat. 752; 17 pages). It will be interesting to see how this unexpected windfall on the fiscally burdened State governments will be distributed programmatically.

Nor has the audit of an actual large scale incident or event measured the improvement on homeland security preparedness, response and recovery since November 25th. Hurricane Isabel was only a category 2 storm so only time will tell!