The All-Hazards Mandate!

Section 503 of PKEMA 2006 in one of its many provisions mandates the following guidance to the Administrator of FEMA:

‘‘(b) ALL-HAZARDS APPROACH.—In carrying out the responsibilities under this section, the Administrator shall coordinate the implementation of a risk-based, all-hazards strategy that builds those common capabilities necessary to prepare for, protect against, respond to, recover from, or mitigate against natural disasters, acts of terrorism, and other man-made disasters, while also building the unique capabilities necessary to prepare for, protect against, respond to, recover from, or mitigate against the risks of specific types of incidents that pose the greatest risk to the Nation.’’

Okay so FEMA is supposed to be all-hazards and post for today is to ask the question is it?

Well we know that if there is a Presidential declaration of Disaster or Emergency under the Robert T. Stafford Disaster Relief and Assistance Act, Public Law 100-707, which supplemented in part, rescinded in part, and amended in part the Disaster Relief Act of 1973 (Public Law 93-288) then FEMA can provide information and funding to other federal agencies and the STATES and their local governments.

If no declaration then the cupboard is largely bare for FEMA. There are other federal compensations schemes however defective or inadequate. For example, the NCP created under E.O. 12616 and E.O. 12777, and of course the Price-Anderson Act up for renewal every 15  years. What is remarkable is that NO legal opinion exists anywhere in any General Counsel or Chief Counsel office of the Executive Branch, or the Office of Legal Counsel of the Department of Justice, or the GAO or otherwise that has been made public that discusses the interrelationships of these various compensation schemes with the Stafford Act or discusses gaps in funding. All Commentators seem to agree that the STAFFORD ACT is NOT an all-hazards statute. STill it would be nice to know what gaps FEMA's believes exist. Over a decade ago the NGA took the position in a formal recommendation to the federal establishment that core-melt accidents be specifically addressed in the STAFFORD ACT.  And then of course post-9/11 many recommended that the STAFFORD ACT be specifically addressed to cover terrorism. Since a declaration by the President no matter how improper legally is totally insulated from judicial review and such a challenge is unlikely due to present rules on standing it continues to be the case that as far as declaration authority the President is largely above the law.

What makes the "New" FEMA compliant with the mandates of  PKEMA 2006 with respect to- all-hazards?  I would argue that FEMA is not even organized on an all -hazards basis and each component often has little understanding of other hazards not part of its portfolio and in fact has never conducted research legal or adminsitrative to see if any of the legal authority for any specific hazard for which they are administratively responsible might have all-hazards utility. A specific statute that might be suitable for such review is the EMERGENCY FOOD & SHELTER PROGRAM with authority under the so-called McKinney Act which might usefully be viewed as an emergency statute flexible in providing legal authority for ESF-6 Mass CARE and even other functions in any large scale events.

So my conclusion is that although mandated to be all-hazards FEMA has not done the basics, even organizationally, to in reality be all-hazards but counts on the willingness of any given President to violate legislative stricttures by a declaration to fulfill expectations of Congress and the residents of the US. This fundamental flaw could be easily corrected but it has not because few in the Excecutive Branch or Congress want to look at the Forest and not just the trees.

And DHS of course in not in anyway to be considered an all-hazard organizational entity but continues to focus on counter and anti-terrorism and its compartemented missions. 

Homeland Security/FEMA Leadership

As of October 13, 2010

Administrator - W. Craig Fugate
Deputy Administrator - Richard Serino
Chief of Staff - Jason McNamara
Director, Office of Executive Secretariat - Elizabeth Edge
Chief Counsel - Brad Kieserman
Deputy Administrator, Protection and National Preparedness - Timothy W. Manning
Assistant Administrator, National Preparedness - Corey Gruber
Assistant Administrator, Grant Programs - Elizabeth M. Harman
Assistant Administrator, National Continuity Programs - Damon Penn
Director, Office of National Capital Region Coordination - Steward D. Beckham
Administrator, U.S. Fire Administration (Acting) - Glenn A. Gaines
Associate Administrator, Response and Recovery - William "Bill" L. Carwile, III
Deputy Associate Administrator, Response and Recovery - Elizabeth Zimmerman
Assistant Administrator, Response - Robert J. Fenton, Jr.
Assistant Administrator, Logistics - Eric Smith
Assistant Administrator (Acting), Recovery - Elizabeth Zimmerman
Director, Office of Federal Coordinating Officer Operations - Theodore A. (Ted) Monette, Jr
Associate Administrator, Mission Support Bureau - David Garratt
Deputy Associate Administrator, Mission Support Bureau - Albert B. Sligh, Jr.
Chief Financial Officer, Mission Support Bureau - Norman S. Dong
Chief Administrative Officer, Mission Support Bureau - Delia Davis
Office Chief Procurement Officer, Mission Support Bureau - Jacob Hansen
Chief Information Officer, Mission Support Bureau - Jeanne Etzel
Chief Component Human Capital Officer (Acting), Mission Support Bureau - Kathy Fields
Chief Security Officer, Mission Support Bureau - Burt Thomas
Acting Administrator, Federal Insurance and Mitigation Administration - Edward Connor
Deputy Federal Insurance and Mitigation Administrator, Insurance - Edward Connor
Deputy Federal Insurance and Mitigation Administrator, Mitigation - Sandra Knight
Director, Office of Equal Rights - Pauline Campbell
Director, Office of External Affairs - Brent Colburn
Law Enforcement Advisor to the Administrator - Charles F. "Rick" Dinse
Director, Office of Policy &  Program Analysis - David J. Kaufman
Director, Office of Regional Operations - Patty Kalla
Director, Center for Faith-Based & Community Initiatives - David L. Myers
Director, Office of Disability Integration & Coordination - Marcie Roth

FEMA Regional Administrators:

Administrator, Region I - Don R. Boyce
Administrator, Region II - Lynn Gilmore Canton
Administrator, Region III - MaryAnne Tierney
Administrator, Region IV - Major Phillip May
Administrator, Region V - Andrew Velasquez III
Administrator, Region VI - Anthony "Tony" Russell
Administrator, Region VII - Beth A. Freeman
Administrator, Region VIII - Robin Finegan
Administrator, Region IX - Nancy Ward
Administrator, Region X - Kenneth Murphy

Federal Emergency Management Agency Directors:

Name  Term of Office
* Gordon Vickery April 1979 - July 1979
* Thomas Casey July 1979
John Macy August 1979 - January 1981
* Bernard Gallagher January 1981 - April 1981
* John W. McConnell April 1981 - May 1981
Louis O. Giuffrida May 1981 - September 1985
* Robert H. Morris September 1985 - November 1985
Julius W. Becton, Jr. November 1985 - June 1989
* Robert H. Morris June 1989 - May 1990
* Jerry D. Jennings May 1990 - August 1990
Wallace E. Stickney August 1990 - January 1993
*William C. Tidball January 1993 - April 1993
James L. Witt April 1993 - January 2001
*John Magaw January 2001 - February 2001
Joe M. Allbaugh February 2001 - March 2003
Michael D. Brown March 2003 - September 2005
R. David Paulison September 2005 - January 2008
* Nancy Ward January 2009 - May 2009
Craig Fugate May 2009 - Present
* Acting director

Link to;  FEMA Organizational Structure

National Flood Insurance Program

Some of the readers of this blog or my CV know that I was one of the principle lawyers for the National Flood Insurance Program authorized by 42 USC 4001 and following from July 1, 1974 to July 1, 1986. I have not posted previously on this blog on that subject but that restraint is now ending as we face the "reforms" that probably will be considered in the 112th Congress. The premise of the program is that existing mistakes of development in the nation's flood plains will be insured in return for wiser future development of those flood plains. Also the program had as one of its primary purposes the reduction of "free" federal disaster relief.

An argument can be mounted cogently that both aims of the program failed. But remarkably there is really not much that is studied as to what would have happened or might have happened without the program. The leading challenges to the program are because post-Katrina the program hovers with $20B in claims payments that had to be largely covered with appropriated funds.

Well this first post will be short but much more later. A first principle of the statutory scheme is that only disclosed hazards on the programs maps will be covered by insurance. This has never occurred and in Katrina, largely unmapped areas subject to localized flooding from non-mainstream rivers of oceans were flooded and costly. So I would renew this principle and make sure that in no event was a property with an unmapped 100 year flood [really the 1% annual occurrence flood] was covered by the federal government. This would encourage local governments to accept the maps and development restrictions and incentivize disclosure not non-disclosure.
Another suggestion is that all mobile and manufactured housing be excluded from coverage. The definitions vary but in fact most of these homes are located on developed lots that often are grandfathered into the future with no zoning or building code enforcement. Also physical damage coverage available from the private insurance sector is better coverage and cheaper than the NFIP.
ALSO, historically losses for installed and uninstalled carpets have amounted to in excess of 15-25% of losses and thus carpets however defined should be excluded from coverage. This is also a subject area of fraud since the NFIP has never required flooded carpet to be documented as to its total loss and as a result much is cleaned and reused while the program pays for new carpet.

A final suggestion is that definition A-2 of the term "flood" should be eliminated from the policy and in addition application and policy language added [as it once was] that any property found in violation of existing flood plain management regulations at the time of the loss would be VOID AB INITIO.

These seemingly minor changes are not minor at all an in fact would reform the program drastically.

Another suggestion would be that flood insurance would be free and handed out to all unmapped occupant owners of houses and they would be notified no more disaster relief ever. Also after each loss they would gradually begin paying premiums to cover expected aggregate losses in the areas flooded. And only the equity portion of the owned property would be federally insured. All mortgagee interests would have to be privately insured.

And finally the insurance aspects of the NFIP should be transferred to the Department of the Treasury and the mapping, mitigation, and land use aspects transferred to NOAA and those later aspects of the program should be under the oversight of the Science Committees of the House and Senate not the Banking Committees which has directed the program largely to benefit lenders who constantly argued the program was a burden on them. And NO MORTGAGE generated from the nation's flood plains should be allowed to be securitized and exempted legally or illegally with actual ownership of the property and recordation in local property records not accomplished. This would give incentives to disclosure bigtime.

CORRUPTION-- Some History

A recent world-wide survey by a responsible organization indicates that the US has dropped out of the top 20 nation-states with the LEAST official corruption.

Unfortunately, computer security has become an arena for corruption with a very hit and miss system in the US Government that theoretically is controlled by OMB Guidance from an internal control system established by OMB Circular A-120. The cross-over from those that can access and manipulate government computer systems and those who cannot which is basic to any internal controls system is frequently a weak system. GAO no longer truly audits the books of agencies since the rise of the Inspector Generals under the Inspector General Act of 1978, as amended. Unfortunately, in a major gift to major contracts, the corrupt DCAA [Defense Contract Audit Agency] in DOD has most of the major contractors under its audit authority not just for major defense contractors but also for most large civil agencies. The actual result is few audits of consequence and contractors reviewed by DCAA are largely free agents and unlikely to face serious financial audits. Another new trick in recent years is that contractors have gotten the government to agree that computer systems and processes developed with governmnet funds are the proprietary data of the contractor and not owned by the government. Thus, efforts to recompete contracts are hobbled by this factor.

I was the Ethics program official in FEMA from 1992-1999 and was witness to the failures of a system designed by OGE [Office of Government Ethics] and independent federal agency to enforce their regulatory scheme through agency and department ethics officials. During those years not a single OGE regulatory change occurred that tightened the rules and all were in fact directed at less strict enforcement.

One of my tasks was to review the incoming financial posture of new Presidential appointees arriving in FEMA, including Non-career SES. Often this involved personalized financial planning, not one of my strengths, so that these individuals would not start behind the eight-ball so to speak. A significant number had back tax issues and these were from both parties. Ethics Officials, including OGE however are not given access to tax returns or credit information. A major failure in the system. Nor are debts listed by appointees or incoming personnel automatically.

Oddly each Senate Committee that holds the power to begin the Advise and Consent process has its own forms and procedures for review nominees.

Perhaps strangely, I have long been an advocate of decriminalizing the federal ethics rules and this is based on the absolute inability of the DOJ [Department of Justice} Public Integrity Office to provide guidance to the OGE and agency ethics officers on their processes and procedures.

A standard case in my FEMA years was a high ranking official receiving reimbursement for travel expenses from the government while also being advanced or reimbursed funds from a private sector organization. The conflicts of interest and favoritism of certain organizations who receive the benefits of high ranking officials speeches and other favors should be looked at closely. Personally I would adopt a rule no FEDERAL officer or employee can attend or give a speech to any group that does not allow open press access and make that speech available. Long ago this was the rule in the Treasury Department when I was there but no longer applies anywhere in the Executive Branch.

Before FEMA had a statutory IG, which was from 1979-1989, and coverage of that statute was opposed by non other that the non-statutory IG himself, there was almost no example of a successful internal investigation of corruption in FEMA and almost no recognition of how the system could be manipulated for personal financial gain. Several times I offered to help the OIG develop manuals which would allow the Audit, Inspection, and Investigation staff detect fraud, waste and abuse and was turned down flatly by both my GC and the IG.

The most famous Pas de Deux in FEMA history involved a Director who received kickbacks from FEMA contractors for expensive attendance at political events where most or all of the attendees bought their tickets to get around political donation rules. Both the IG and GC of FEMA when interviewed by outside authorities, specifically the WH and GAO, they took the position in writing that they were waiting for the other office to conduct an investigation first. This type of ballet was often what caused FEMA to have few internal control systems that were effective.

My reasons for decriminalization is also based on the fact that personal financial gain to a federal officer or employee is the raison d'etre for Ethics Rules, including financial gain to the family of that officer or employee. Thus, civil fines which are more readily enforced and restitution should be the order of the day.

Another major issue in my years in FEMA was enforcing the rule that no individual while employed by the federal government may represent any other person but immediate family on any case or issue adverse or potentially adverse to the government. This meant that the Audit Staff of FEMA's OIG, and all Federal OIG staffs, could not in fact have an outside Tax Preparation Service. I found that in FEMA almost all of the Audit Staff were preparing federal tax returns for compensation. Working with the IG himself We did get out a joint memo to the Audit staff nixing such outside employment. But since I had no investigative staff I often wondered if there in fact had been a cease and desist. The fact that I did not want to compromise or lose experienced auditors over this issue is an example of the problems raised by OGE and other federal rules.

The principle that any officer or employee should have finances of a spouse or children attributable to them is also something that should have been addressed long ago. More and more frequently I found "innocent" spouses that had no idea what their spouses or children were up to and how they were utilizing their access to the officer or employee.

I finished reading a while ago Doris Kearns Goodwin's wonderful book "NO ORDINARY TIMES" and its dicussion of the home front in WWII. Based on the standards of the times no one seemed concerned about conflicts of interest or outside activities. By current standards the administration of FDR was almost totally corrupt in failing to see that official positions were not abused.

One of the most famous examples, which also involved FEMA because of its administration of the Defense Production Act or at least a portion of it involved the National Defense Executive Reserve. This statute waived normal ethics rules but the waiver was long ago detemined to be inappropriate. During WWII many industry executives were so-called $1 A-YEAR men. Most probably thought these executives were donating their time and efforts to the WAR effort. In fact almost 100% of them continued to recieve full salaries from their former employers and often favored those employees. This type of corruption was not addressed until the passage of the DUAL COMPENSATION ACT of 1947. A statute seldom enforced but necessary that statute bars earned income from any federal officer or employee from an outside source without going through certain hoops. Oddly in my time OGE seemed completely uninterested in viewing this statute within their purview.

Much more could be written, but in my time the largest single allegation against a FEMA employee measured by financial self-dealing involved the theft of over $20M dollars. The individual was never referred for prosecution and in fact retired without a thorough investigation of the matter. She was employed by the Office of the Comptroller of FEMA which was always poorly staffed and in my time almost completely lacking in internal control systems.

According to a very competent employee (IMO) when the first Director of FEMA was told that 15 more accounting staff were desperately needed in the Comptroller shop to maintain financial control, that Direct denied the request stating that "financial control would just have to be lost" because of other agency priorities.

Well you get the picture!

Proof Of Life--Can DHS survive a Republican Congress?

It should be noted that somewhere between 88 and 110 Congressional Committees have some piece of oversight over DHS and its programs, functions, and activities. Oddly, since the end of the first George W. Bush Administration the Republican testiness demonstrated almost continuously with DHS has grown. Probably because there is a miniscule but brilliant Libertarian core in the Republican Party that really does think that Big Government and its intrusiveness is a problem of deep concern, as opposed to the TEA PARTY which is led largely by people who do not read or write and therefore don't think very clearly that also oppose big government.

Well DHS is really not such a big government big problem. What has happened is that most of the really critical programs, functions, and activities of DHS are understaffed while those that were part of the DOD culture in the past, and are now, who are housed in DHS continue to act as though DHS is a mini-DOD and does not have to rely on brains but can rely on contractors and brawn. Most of the large contracts of DHS have resulted in failed deliverables for one reason or another including primarily SIBNET, electronic border fences, IT etc. Some out of sight that failed that were large as far as the programs concerned was the MICHAEL BAKER/IBM effort at remapping the country's flood plains.

Well all of this makes for great sharpshooting or perhaps turkey shooting for a Republican Congress. They will really be having fun and some of it will be driven by very serious people that happen to align with the need for effective oversight of DHS.

And let's summarize. DHS for example failed to produce many many Congressionaly mandated reports, or if it did produce them even the slightest review of their formulation (usually by Contractor staff), specifics, and recommendations could drive DHS crazy with oversight. My guess is DHS will beef up its staff with fleeing Democratic staffers from a defeated DEM majority in the new Congress--the 112th.

The fact that much of DHS failed efforts track back to the George W. Bush Administration means that some work on oversight will have to be done to distinguish recent DHS failures from the long-term ones. This should not be too difficult.

If I was conducting the oversight I would just ask the Secretary DHS and her staff to explain exactly what was the role of DHS in various events, like the Times-Square Bomber, H1N1 Pandemic, BP catastrophe, etc. etc. And of course my critical threesome are WMD policy and implementation, Cyber Security [also computer security], and Domestic INTEL collection, analysis, and dessemination. There is no way that DHS can explain some of its efforts in these "discipines" without supplying rope to hang themselves. This is of course precisely why I expect massive cuts in DHS budgets and massive attempts to maintain the huge and unwieldy management oversight system of DHS which continues to draw funding and staff from critical ops. This is not a flat organization and in fact some units still have no real mission assignment grounded in statutory or Executive Order language or HSPD mandates. By the way the later two sources of authority, to the extent they are legal authority, look like revisions in the next year will wipe out most of the references to DHS, and only if they are put on an all-hazard basis will DHS retain any glimmers of authroity from those documents. And of course any resort to all-hazards authority strengthens FEMA not DHS which as all know is not really an all-hazard agency. And DHS is still reluctant to label its criminal law enforcement staff, the badge carrying, gun-toting staff, as federal law enforcement in any prominent way.

And of course the Republican's could reorganize the House Committee structure just to spit in the face of a poorly organized DEM Senate Majority.

Time will tell of course.

Recommendations to the New House Leadership

Assuming that the 112th Congress has a House of Representatives that is majority Republican what are my recommendations.

First, that Committee Chairs be picked on Comptence based on their education, training, experience, and not political longevity. Theoretically this is now the system.

Second! Stop authorizing federal programs, functions, and activities through appropriation statutes. Let the Authorizing Committees get to work.

Third! Combine the Homeland Security and Armed Services Committee into a new National Security Committee.

Fourth: Adopt a rule that NO MEMBER of the HOUSE OF REPRESENTATIVES may represent the interests of a contractor either in committee or on the floor of the HOUSE without first publically revealing the lifetime totals of contributions from that Contractor.

FIFTH: NO FOREIGN NATIONAL, even with dual citizenship, may be employed as Congressional STAFF.

SIXTH: All allegations concerning the ethics of MEMBERS shall be made public and all proceedings on those allegations shall be made public.

SEVENTH: The HOUSE OF REPRESENTATIVES shall establish a committee on FEDERALISM and any proposed statute shall be review by that Committee Staff and its members for federalism implications.Those recommendations shall be furnished to the entire membership of the HOUSE prior to any floor action on that legislation.

EIGHT: HOUSE Rules should be operated with a view to the fairness of those rules on the minority party. To the extent possible, HOUSE RULES should promote fairness and open government.

NINE: MEMBERS of EACH HOUSE/SENATE conference appointed to the Conference from the House of Representatives should to the extent possible represent the views of minority of the HOUSE, specifically this should be done by reflecting conference membership based on Committee ratios.

TEN: Consideration should be given to establishing a technically expert support organization on science and technology issues, including for example cyber security.


More to follow:

Reforming Governance In the US

Over and over again friends ask how could the US avoid the slide into the abyss during the rest of this century and becoming a third-world country. Well there are certainly long term strengths underlying the US system of governance and economics but stresses and strains are not only beneath the surface, but on the surface, and may be made chrystal clear by next Tuesday's voting.

So here are some suggestions that hopefully are bypartisan and non-partisan.

1. Issues of Congressional oversight are not just political arrangements but impact governance and should be study for their impact on Executive Branch policies and federalism. No way to predict the outcome of such a study but needs doing.

2. To the extent possible the budget should become a two year effort with 1/2 the Executive Branch in one year and the other in the successor. There may be Constitutional limitations that need addressing. One cut could be all truly civil agencies and one cut for defense appropriations which would include all programs related to national security and defense including the Departments of Veterans Affairs and Energy.

3. All programs, functions, and activities that are not currently authorized by an authorization statute should be reviewed to determine whether they should continue to be the subject of authorization by appropriation.

4. The impact of science and technology on the US is enormous and the 150 year period where the US to some extent led the world may be ending. So how science and technology impacts governance should also be studied. And of course other than Patents being discussed in the Constitution these terms are not in that document. 

5. The STATES must reduce the number of their local governments. The federal government could assist in this reduction by only providing grants to LOCAL Governments that have independent authority to tax, sue or be sued authority, or are specifically granted limitations on immunity from liability by the STATE governments.

6. A limitation on the staff making up the NSS of 20% for military officers in active status. Selection should be by the SECDEF not the individual services, and with approval of the Advisors to the President for National Security and Homeland Security.

7. The role of the National Guard should a matter of law, they should be a member of the CHIEFS OF STAFF and NORTHCOM should always be headed by a NG Officer. The other services could hold the Number 2 slots.

8. The membership of the INTEL community should be reduced to no more than 10 members now and in the future no more than 5. My suggestion would be to have those five dual hatted, meaning civil military responsibilities, but no longer under exclusive control of the SECDEF and instead the DNI would become the INTEL lead with oversight of Satellite INTEL, HUMINT, Cyber Security, SIGINT, etc.  Also domestic intelligence collection would be under the DNI and removed from DHS and DOJ except with specific Presidential approval as are covert ops.

9. Various immunity from suit statutes, such as 33 USC Section 701 that immunizes the USACOE from liability for flood control projects should be eliminated. And all federal programs, functions, and activities should have provisions for judicial review and enforcement of due process and equal protection standards under the Constitution.

10. The number of Cabinent Departments should be consolidated. And the authority of the Director of the Office and Management and Budget and Associate Directors of OMB be transferred to the extent possible to this reduced number of cabinent secretaries. Associate Directors of OMB should be subject to Senate Confirmation and Congressional appearances if this is not done. And each years recommendations to OMB on the budgets and passbacks should be a matter of public record.

11. All SES appointees should be term for a period of 5  years with one opportunity for renewal and non-career SES positions should be abolished as well as career positions in return for the term assignments. The SES could be removed for cause, other than political affiliation. Current SES members could apply but are not guaranteed a term appointment under the new system. All SES ethics forms would be review by OGE not the agency and tax returns would be available for these ethics reviews to the examiners. Each SES would have a published position description indicating what specific legal authorities he/she would be administering. At the end of the second five years, these Term SES would be allowed to immediately retire but with some recognition given to their length of service if less than 30 years total military and civil service.

12. The number of politically vetted positions in the civil service should be reduced by 50%.  All INSPECTOR GENERALS should be appointed for one 10 year term without renewal. EACH IG should have exclusive criminal referral authority for his/her department or agency. All IG's should be protected under the Inspector General Act of 1978, as amended. And IG's should be protected from termination based on political affiliation.

Well that might jump start some reform. More later.

US Resilience

After considerable thought I have reorganized my brain and computer files so that the Term "RESILIENCE" is now the overarching EM paradigm and also the same for HS.

Thus, I include the terms (1) Protection; (2) Prevention; (3) Preparedness; (4) mitigation; (5) response;  and (6) recovery as subsets of resilience.

Time will tell whether this makes any sense. Each of these terms is not in my mind a ridgid category either linear in sequence, nor compartmented but overall I do seem attracted to organization efforts, policies, and programs, functions, and activities that support the Nation's resilience, STATE and their local government resilience, and family and individual resilience.

This term was utilized in the CSIS report by Amanda Dory on detail to CSIS from DOD entitled "Civil Security" issued in 2003!

My policy recommendation is that all programs, functions, and activities of DHS and FEMA should be looked at from how exctly they support resilience if at all or are organized to promote that concept. I actually believe the entirety of the Executive Branch might usefully also do that analysis.

Current Events-A Snapshot

Note I will be off blog from tomorrow through tuesday leaving only a week before an election that may see the beginning of the end of the Republicans or Democrats, and then again maybe not.

Okay some old favorites first:

1. Haiti--still 1.5 million people just offshore in this large scale DOMESTIC not foreign disaster are still without adequate food, medical care, shelter. Hey the US posturing continues, with Bill and Hillary in the lead of proclaiming concern while doing almost nothing. Big charities continue to sit on Haitian earthquake donations while doing little to leverage those donations. Science  is proceeding with findings of bedrock ridge that may have made things worse but opens potential for some mitigation. Foreign powers, CHINA, CUBA, VENZUELA contniue their efforts in Haiti below the reporting levels of US MSM. The one year mark could result in savage reviews of Obama Adminsitration performance. Key event in Haitian history forthcoming--their Presidential election with US as manipulative as ever on side of ruthless capitalism and sweat shops and no land reform.

2. BP Catastrophe--Environmental groups finally have organized their litigation. BP is using salami tactics to hide their finanical difficuly--selling a slice a at time hoping no one notices their cash flow problems. I personally think there will be no BP five years down the road and only the fact that UK and US pension funds heavily invested have allowed survival so far. Also no federal lawsuit yet filed against BP left solely to private litigants.

3. 111th Congess--I still predict the Senate will stay DEM but barely but HOUSE will not. But if it does stay DEM then Nancy Pelosi will again be Speaker and watch her revenge on non-supporters stupid enough to go public against her. The Speaker vote of course is a secret ballot and Donkeys and Elephants both vote.

4. The Lame Duck session--almost guaranteed now and almost guaranteed trouble for the Administration. The only slim reed to make that session productive is the Speaker who may be the only politician the DEMS have that expresses Biblical rightous indignation at events and other politicians. Go NANCY!  You go girl!

5. Saudi Arms Sale--This sale of conventional weapons will sail through and is fast tracked as US trys after the barn door is open to protect against Iranian breakout as dominant power in the "PERSIAN" gulf. The strange thing is the emergence of TURKEY as a major player in the world and middle EAST. If the Kurds did not exist they would really be flying high, economically, militarily, and culturally as still largely secular nation.

6. Iraq--formation of a government is basic to any kind of government hoping to have the semblance of other than dictatorship no matter how authoritarian. Inability to do so means chaos. US still does not indicate publically its exact role for 100,000K US nationals and contractors that will remain in Iraq after Easter.

7. UK--Headed to financial and military collapse. Desperation setting in as the wonderful period of English/British history from discovery of North Sea oil until today may be sunsetting. But hey maybe gas discovery and conversion will allow the British to "endure" as their coat of arms states.

8. Foreclosure crisis--Still being spun daily. Bottom line control over the question is with the Title Insurance Companies who have been left very vulnerable. If they do market withdrawal until the turmoil ends then residential real estate market really collapases. Looking like those who bought or sold residential real estate or refinanced in last 15 years have doubtful title to their property unless they paid cash and documents registered in local court houses.

9. Obama Administration--Well the rats have left or been fired or will be. Obama finally gets the fact that their may only be two years left for his time on world stage. The dangers of unpreparedness for the highest office and greatest responsibilities in the world now self-evident for his friends and foes. Too bad ego and hubris made him rush his time in the spotlight.

10. 2012 election--Still think Biden will get sick and Hillary on ticket. Notice it is Biden not Obama making all the statements about his remaining on ticket. Hillary play it cool and calculating. Yes--maybe we do have a twofer at STATE just like we did during the Clinton Presidency. Personally I think her self control and self discipline makes her the most feared potential candidate for the Republicans in 2012, and would not forgo possibility of a run when Obama announces he has had enough.

And for the Republicans in 2012 looking like Jeb Bush as the lead with Mitch Daniels as VP but long way to go.

AS you can guess I enjoy this frivolity although there is underlying concern that the US is being rapidly outsmarted and outmanueverd by at least 10 other nation-states at the moment.  Perhaps too bad some of that ferocious lobbying talent in DC is not shackled to the Ship of State and given the order ROW ROW in order to LIVE!

The Arsenal of the Dictatorships

Hey part of the fun of blogging is occasionally deviating from the central purpose of the blog. Perhaps this is more related than I think as now MUMBAI type attacks are considered probable in the US and we now know the key MUMBAI terror attack planner was a US national. Perhaps the world will decide to invade the US because they know we have WMD and know that we harbor terrorists. JOKE? Not very funny.

Anyhow a number of thinktanks that specialize in the international sales of conventional weapons have again identified the US as the principle sales organization. It is convoluted but it does appear that the STATE DEPARTMENT cannot actually veto sales and transfers by DOD under various military assistance programs.  Also STATE cannot veto DOC [Department of Commerce] approvals of technology transfers even those with dual use--civil military implications. So when is the last time this issue was discussed openly. Looks like the Merchants of Death are in reality the US government and its minions that want to generate revenues to offset deficits by conventional arms sales--whether or not they make sense through our foreign policy and foreign relations focus.

So thank goodness for that good old AK-47 and its progeny produced by over 100 countries and with a world wide market even in the good old USA. Actually sales of this weapon rise to that of a basic commodity and probably should be listed on US commodity exchanges. Oddly as an investment should one decide to do that stockpiling that weapon and its offspring probably rival art and othe exclusive collectibles for reliable value. Perhaps an AK-47 market analysis to accompany each listing of the gold market. Probably related but don't know that for sure. Reason more sales of AK-47 the more gold is bought. Now even S.Korea has decided to enter the gold market in a big way. Well an update of the AK-47 and its progeny would probably become a best seller at least in US with its 10 million gun collectors, meaning those with more than 3-5 guns, including pistols and rifles.

And I have been able to locate no Congressional oversight of the US involvement in conventional arms sales in the last 3 decades. So Congress get to work.

Let's re-establish the ARMS CONTROL AND DISARMAMENT AGENCY--[ACDA] and include traffic in conventional arms as one of its listed subjects for regulation and analysis.

Does FEMA have WH Clout?

There is a little game in Washington called "Clout and FACETIME"!  The first refers to Presidential assignments directly to an organization and the second to the amount of time that the head of a department or agency, whether or not independent, gets to meet with and brief the President. The CIA for example is still hurting desperately from elimination from the so-called DAILEY BRIEF of INTEL for the President now accomplished by the DNI! The first factor is based on how skilled, competent and flexible the department or agency is in the mind of the President and the willingness to take on a new task perhaps not defined by any Authorization Statute or Appropriation.

The one classic example in FEMA's history of course was the assignment by press release by President James Earl Carter of off-site saftey of nuclear power plants in December 1979 after both the Kemmeny [not the Ayatollah but the President of Dartmouth College] and the Rogovin Report suggested off-sight safety be removed from NRC [Nuclear Regulatory Commission]! My recommendation would have been to move it to EPA but hey I was not asked. We have now learned that long before TMI in late March 1979 that developing core-melt accident was not the first consideration given to giving the then new FEMA the role. In fact it was considered formally by the President's Reorganization Project Team, headed by Nye Stevens, later a GAO Officer Director, and then postponed for some later time. Little did those deciding on postponement know that the first core-melt reactor accident in US history was about to occur.
Continuing with the theme of this post. The only oddball but perhaps substantial assignment given to FEMA since its incorporation into DHS by the President was the assignment by the President for a prepatory role for FEMA for shore based impacts of the BP catastrophe. Of course no STAFFORD ACT declaration has ever occurred for that event nor has the US government yet filed suit against BP for any reason for that spill. So readers of this blog can weigh their own opinion as to the significance.

At any rate I know of NO other Presidential assignments directly to FEMA since March 1, 2003 when DHS was formed. What I am beginning to find really remarkable is how few Presidential assignments to DHS have occurred since the start of the second Bush term, even including absence of DHS from some laundry list type Executive Orders where I thought mention of DHS was appropriate, or where new Homeland Security Presidential Directives required a DHS mention just to avoid bureacratic confusion. I will leave to others to study the correctness of this conclusion.

While I am at it, "it" being Presidential assignments, one concerning FEMA as safety net on nuclear power offsite planning, Executive Order 12657 issued on November 18, 1988, has never been revoked or amended even though its legal basis is doubtful, not least because of its citation to the Federal Civil Defense Act of 1950, as amended, Public Law 920 of the 81st Congress, which was repealed by Public Law 103-337 in 1994.

A brilliant article on offsite PARs has just been published in the third issue of a BEPRESS Journal concerning Risk Management and concerning the "you can run but you cannot hide" issue that impacted the Shoreham/Seabrook liscensing proceedings before NRC and that caused huge disruption to me personally as most of the work was done outside of DC on those proceedings. Actually the issue is more accurately described as "shelter versus evacuation"!

Another article in that same journal brilliantly describes the difficulties in planning and preparedness for evacuations, especially for those of the  hosting communities.

Let us count the ways that DHS and FEMA count in the favor of this President who thought so little of the discussion of FEMA's role and independence that no published document exists as to the reasons for nonreview [actually was reveiwed quite a lot by the WH] or at least concluding that FEMA in DHS was a non-issue.

Well Mr. President, as the 1993 NAPA report "Coping with Catastrophe" points out each President gets the FEMA it wants, not necessarily of course what it needs. President Bush got the FEMA he wanted but unluckily for him he got Hurricane Katrina also. Well some are lucky. No landfalling hurricanes so far this year in US with formal Hurricane Season about to end in ten days.

Legal Issues

On October 14th I posted on this blog on top ten legal issues facing HS/EM and also on ACUS study of preemption. After thinking about the topic more I have concluded that certainly pre-emption whether implied or court ordered or mandated by Congress is an issue that plagues both National Security and Homeland Security although never written about in academic circles. Now two items need to be stated as supposed black letter law!  First, the so-called "Police Power" is reserved to the STATES and their local governments. Second, that land use and mitigation is derivative from the STATES police power.

After much thought and study I have concluded that these propositions are highly doubtful. I am hoping to find others with more brains and skill than mine who have addressed the underpinnings of these propositions. Ernie Abbott former GC of the independent FEMA has written about these issues although somewhat obliquely. Perhaps there are others.

I also see related doctrinal problems in the federal and state court systems with their rulings on appendant party jurisdicition and appurtenant jurisdiction. This gets into classic conflict of laws discussion and when I address it in the future will be required by my own limitations to be somewhat simplistic.

My bottom line [hate that phrase] is that the entirety of federalism and preemption and supremacy and police power authority have significant implications for HS/EM. Hoping to study and reach more definite conclusions.

Appendix A - National Hazards Research Working Paper #107

As we approach the 10th anniversary of 9/11/01 this paper may be of some use to those preparing analysis of what has been or not been accomplished since that date and perhaps more important to understand how that event was not an anomaly but in fact part of a pattern that had developed as early as the Nixon Administration.

Appendix A - Natural Hazards Research Working Paper #107

Pablum or Steak--OIG/DHS or GAO--And "Substantial Progress"

Well on September 10, 2010 DHS/OIG again analyzed the capability of FEMA to conduct its operations in a catastrophic situation. The report updates an early 2008 report concerning the same subject. Unfortunately, the report fails again to distinguish between actual accomplishments and focuses on whether FEMA has achieved the laughable goal of "substantial progress"! This favorite term of the leadership in FEMA is totally meaningless since it derives from no metrics, no hard analysis, ignores deadlines, and also fails to determine whether the program, function, or activity mission or goal will be achieved anytime soon. I was actually in the room when the term was invented and employed for the first time with a brilliant but quirky civil servant, now a female SES in FEMA close to retirement came up with the terminology in the context of the REP [Radiological Preparedness Program] and NRC at the Commissioner level was pushing for a FEMA statement so they could liscense a particular nuclear power plant.

The bottom line is that always be watchful when any component of FEMA, in particular when trying to provide reporting data to Congress or other oversight organizations employs the term "substantial progress"! If the Pyramid Builders in Egypt had used that term as the measuring stick those magnificant structures would remain unbuilt in the desert.

That stated, OIG/DHS is struggling to figure out again and again how and why FEMA gets away with constantly missing statutory mandates. The interesting thing is that the reports often list the mandate but instead of labeling the failure point out that some new report or effort is yet to arrive and implicit in the OIG/DHS finding is this makes okay the missing of the deadline. For example, now the excuse is rewriting of HSPD's or other guidance emanating from this WH. Much of the first two years of the Administration was disappearance of important doctrinal statements, even draft Executive Orders, never to reappear or at least not yet. Leading example, the revision of E.O. 11988 conerning flood plain management.

In the DHS/OIG report other efforts are mentioned but the OIG report fails to mention either the predecessor documents still in place or why those failed. Example, the National Mitigation Strategy of 1995 and the Pre-Disaster Mitigation Strategy of 1998 are not mentioned even while FEMA struggles to implement a new statutory mandate for a National Mitigation Strategy. Just further documentation that FEMA has no historical or management memory and is likely to never in its history become what the Public Administration types call a "Learning Organization". It just again proves that FEMA is terrible about the details of governance and shows how weak the support staff offices are like procurement, Chief Counsel, policy shop etc. Yet no one seems to understand why FEMA repeated fails to get "it" with "it" being basic bureacratic governance. We used to laugh at exercise deficiencies. Were they the result of a bad plan? Were they the result of poor training or implementation? Were they just exercise anomalies? Well sometimes we concluded that the FEMA personnel just were not capable of being trained.

GAO has produced two interesting pieces on FEMA preparedness, largely in the context of PKEMA 2006. In 2008 and 2009 reports and testimony indicated FEMA making "substantial progress" but at least what the progress consisted of. Like the DHS/OIG however the GAO also ducked reaching the conclusion of "NO Effective Preparedness" by examining development, implementation, or operational capabilty so the US is left with the feel good sense that yes passage of time equals some improvement when the National Emergency System envisage as long ago as the language of Public Law 920 of the 81st Congress still does not exist.

Well I guess one can always hope for improvement. And did I mention that again DHS/OIG relies on compliance with a very weak reed, CPG-101 as far as state capability when the states are again allowed to assess themselves.

By the way the best self-assessment of STATE preparedness I have seen in the last few years is Governor Rendell's study group of why an ice storm brought Pennsyvlania to a complete stop several years ago. It should be a model study for other governors. And what exactly were the self-assessments of the GOM states impacted by Katrina. Mostly nothing and more pablum than steak.

Robert T. Stafford Act

A key provision of the Robert T. Stafford Disaster Relief and Emergency Assistance Act gives the President enormous flexibility in recovery of federal government physical infrastructure and improved real estate should it be heavily damaged or destroyed in an emergency or disaster. Like many provisions of the Stafford Act this provision is not implemented by any kind of interpretive regulation. It should be examined closely and included in the President's own tool kit for his/her use with respect to federal facilities and should not be delegated to an agency or department head. In my opinin (IMO) of course.
The provision follows:

"Sec. 405. Federal Facilities (42 U.S.C. 5171)
(a) Repair, reconstruction, restoration or replacement of United States facilities - The
President may authorize any Federal agency to repair, reconstruct, restore, or
replace any facility owned by the United States and under the jurisdiction of such
agency which is damaged or destroyed by any major disaster if he determines that
such repair, reconstruction, restoration, or replacement is of such importance and
urgency that it cannot reasonably be deferred pending the enactment of specific
authorizing legislation or the making of an appropriation for such purposes, or the
obtaining of congressional committee approval.
(b) Availability of funds appropriated to agency for repair, reconstruction, restoration,
or replacement of agency facilities - In order to carry out the provisions of this
section, such repair, reconstruction, restoration, or replacement may be begun
notwithstanding a lack or an insufficiency of funds appropriated for such purpose,
where such lack or insufficiency can be remedied by the transfer, in accordance
with law, of funds appropriated to that agency for another purpose.
(c) Steps for mitigation of hazards - In implementing this section, Federal agencies
shall evaluate the natural hazards to which these facilities are exposed and shall
take appropriate action to mitigate such hazards, including safe land-use and
construction practices, in accordance with standards prescribed by the President."

Note that this authority allows repair, reconstruction, or replacement even before the existence of an authorization or appropriation to do so. As such it is perhaps the only example I know of when Presidential authority is exempt from the appropriation process. Congress may wish to review this authority and see if they believe the exemption should last only until the action can be brought within the appropriations process cycle. Or perhaps it is appropriate as written. I used to place emphasis on this provision of law when briefing high level DOD and DOJ officials on Presidential authority and many of these had no knowledge of it and had never see such broad authority delegated to the President by the Congress. Well one case where an important arrow has been placed in the quiver of authorities of the US President. I presume it has no restriction on its delegation to agency or department heads under 3 USC Section 301. To my knowledge that has not been done, nor has FEMA in its history recommended its use. Perhaps the Murrah Building qualified. But that history is vague.

Preemption Study Released by ACUS

The Administrative Conference of the US has released publically the so-called "Sharkey" report in draft as prelude to conducting and developing a position on developing regulations by the federal government when STATES may also have entered into that regulation. This is a very worthwhile endeavor and this issue is quite complicated.

I have written to a highly regarded law school classmate of mine who happens to be Chairman of ACUS in accordance with the ACUS invitatioln to do so. I circulated that letter on the disaster-law list and both the study and my comment are available from this blogger.

The Top Ten Legal Issues Facing HS/EM

1. What are the inherently governmental functions of HS/EM programs, functions and activities? See for background OMB proposed guidance letter in the March 10, 2010 Federal Register.
2. What is the cultural that should be encouraged in HS/EM ranging from militarized top down command and control or colaborative and cooperative administration grounded in a bottom up approach? This includes issues from use of uniformed personnel to utilization of guns and badging!
3. Should DHS/FEMA be given more or in some cases any regulatory/standard setting authority?
4. Should the legal authorities of DHS/FEMA be made all-hazards?
5. How should DHS/FEMA operate its programs, functions, and activities in the face of public health concerns?
6. Should DHS/FEMA authority on Nuclear Power Plant offsite safety including its exercise program be expanded to all critical infrastructure that could cause disruption short or long term to the public health and safety or environment long term--beyond 90 days out from incident or envent--for a wide-scale regional area?
7. Should DHS/FEMA planning for catastrophic incidents/events include specific planning for riots and civil disorders?
8. Should DHS/FEMA preparedness include legal authority to mandate stockpiles of emergency supplies including those listed in DMO-4, 44 CFR Part 323, in any large-scale catastrophic incident or event? Note that the National Defense Stockpile and the National Medical Stockpile do not currently reflect DMO-4!
9. Should DHS/FEMA have collocated staff in each STATE EOC and what should authority and responsibility should they have vis a vis STATE operations and FEDERAL Operations?
10. Should DHS/FEMA focus their programs on all 90,000 local units of government or limit their efforts based on actual HS/EM existing capabilities? Meaning should DHS/FEMA concentrate on only those geographic areas and units that have existing or potential capability to respond to issues within their jurisdictional reach caused by any large-scale catastrophic incident or event?

The Importance of Proper Delegations

In June 2007 I became concerned as to how PKEMA 2006 would be delegated [You can find PKEMA 2006 under the Statutes section of the Home page of this blog]. GAO in a 2008 Report identified 62 specific taskings to FEMA in PKEMA but failed to identify progress or even the status of delegations. Conceptually, unless authority is delegated is stays in suspended animation awaiting such delegation. During my time in FEMA before the retirement of William Harding, a brilliant man who knew delegations importance cold, he made sure appropriate delegations appeared sooner or later. FEMA has published updated delegations in the last 18 months but they contain significant legal errors. Specifically you cannot delegate authority vested by law in higher authority [an organization under which your organization is a subunit] to your own organization and therefore it must be made by the higher authority to confirm such delegation. This was NOT done. Obviously some of the PKEMA 2006 did vest authority directly in the newly created Administrator of FEMA but this is not separately identified. Subordinate units of FEMA have no sub-delegations in place from the Administrator so this also is a problem. Perhaps much that FEMA has accomplished since its incorporation into DHS needs ratification to make legal. To help understand this legal and policy problem I include in this post full text my personal letter to the Attorney General for which no response was recived. Draw your own conclusions.

"June 11, 2007

Honorable Alberto Gonzales
Attorney General of the United States
Washington, D.C. 20530


RE: Legal Authority of the Federal Emergency Management Agency




Dear General Gonzales:

I am writing to you personally over a matter that I believe is of some urgency. Congress enacted and the President signed last fall the Post-Katrina Emergency Management Reform Act, Title VI of the Homeland Security Appropriations Act of 2007 (Public Law 109-295). Effective March 31, 2007, this statute created a semi-independent FEMA in the Department of Homeland Security established by the Homeland Security Act of 2002 (Public Law 107-296). The former statute did NOT address legal authority issues. Nor have formal delegations to the new Administrator of FEMA been issued by the Secretary DHS, nor published in the Federal Register in compliance with the Federal Register Act of 1934 and the Administrative Procedure Act of 1947, both as amended.

My point is this; the Department of Justice needs to review the express and implied legal authority of the new FEMA. In the event of an actual incident or event it is important that not just DHS and FEMA know what FEMA’s legal authority is but all participating federal departments and agencies that are part of the preparedness and response to such an event. My suggestion is that the project be done under the formal supervision of the Office of Legal Counsel, and as was done for the Presidential Emergency Action Documents, DHS and FEMA assessed the costs of the project and participate. This may end up being a multi-year effort but hopefully not.

I am enclosing three documents that I believe highlight and support the need for this project. First, a two page letter from then Attorney General John Ashcroft to then Director of FEMA Joseph Allbaugh in 2001 (marked as TAB A). Second, a recent 25 page report entitled “The Day After” prepared in 2007 for the Preventative Defense Project of Harvard and Stanford Universities (TAB B). Finally, my annotated version of the unpublished legal appendix to the 1993 National Academy of Public Administration report entitled “Coping with Catastrophe.” This annex has not been previously furnished to you or your Department to my knowledge and the annotations are solely mine. Nonetheless, because FEMA’s Office of Chief Counsel and the former FEMA Office of General Counsel have not issued any comprehensive legal guidance as to legal authority issues it comes as close as is currently available to being that document even though the legal appendix was completed in December 1992. The annotated document is marked as TAB C.

TAB B and C are available virtually once a point of contact is available in DOJ and I may be reached at the address and phone below.

In advance I appreciate your attention to this matter. I have high hopes that this is a project that could influence Homeland Security and Emergency Management policy and operations for years to come and help identify gaps and problems in the President’s legal authority to deal with crisis management and consequences management.

Sincerely,

/S/ William R. Cumming

William R. Cumming
President
The Vacation Lane Group
P.O. Box 327
338 Smith Point Road
Reedville, VA 22539

Phone-804-453-3410
E-mail-vacationlanegrp@aol.com
www.vacationlanegrp.com
Enclosures: TABS A-C

CC: David Trissel
Chief Counsel Federal Emergency Management Agency

TAB C- Attached"

The National Emergency System

Okay so having in the past on this blog hammered the STATES and their local governments for failures in preparedness, prevention, protection, mitigation, response and recovery and resilience generally time to take a whack at the various federal agencies.

First a brief historical look at the original charge to FEMA on working with the other federal agencies [OFA] as currently operating.

FEMA was to observe the following Executive Order 12148 paradigm:


"2-202. Assignments of civil emergency functions shall, whenever

possible, be based on extensions (under emergency conditions) of

the regular missions of the Executive agencies."

Ever wonder exactly what the daytime jobs of the various Executive Branch organizations are and whether they accomplish their missions and goals efficiently and effectively. Well first always remember federal programs are designed to deal with political problems first and not necessarily and almost never to be efficient and effective.

For example, the charter statute of the Department of Housing and Urban Development included the mandate to provide decent, safe, sanitary housing for all Americans. It did not mandate that the housing sector could be shredded by the dominance of special interests with almost no practical regulatory input over business creations like the largely unregulated mortgage bankers that now have jeopardized the actual ownership claims of many Americans through failure to legally issue mortgages or to make sure that actual title was conveyable. Hey the notion that ownership of improved real estate is at the heart of American prosperity and US style capitalism is now pretty much dead with only the playing out of the funeral to ensure that all understand that failure.

But look at the role assigned HUD in Executive Orders like E.O. 12656 now under study for revision or revocation.

"PART 9---Department of Housing and Urban Development

Sec. 901. Lead Responsibilities. In addition to the applicable responsibilities covered in Parts 1 and 2, the Secretary of Housing and Urban Development shall;
(1) Develop plans for provision and management of housing in national security emergencies, including: (a) Providing temporary housing using Federal financing and other arrangement; (b) Providing for radiation protection by encouraging voluntary construction of shelters and voluntary use of cost-efficient design and construction techniques to maximize population protection;
(2) Develop plans, in cooperation with the heads of other Federal departments and agencies and State and local government, to restore community facilities, including electrical power, potable water, and sewage disposal facilities, damaged in national security emergencies."

Well how exactly has HUD leadership decided to develop, implement, and operate this task. Well of course they largely have ignored the tasking signed in writing by President Ronald Reagan. Only by arguing that some of HUD's programs, functions, and activities indirectly accomplish the specific tasking is there a glimmer that HUD could fulfill its role.

In November 2006, almost 4 years ago, the OIG community published a guide to analysis of Executive Branch Emergency Preparedness roles and their implementation. This 55pp document is useful but it certainly did not include listing all the EP roles assigned by STATUTE and EXECUTIVE ORDER such as the one for HUD above. In fact almost no OIG in any Executive Branch organization, whether a formal statutory IG under the Inspector General Act of 1978, as amended, or the non statutory IG's have ever examined the EP roles, missions, and goals of their respective organizations. FEMA in the 20 years I was there--1979-1999-was always almost grateful when operating under the Robert T. Stafford Act or its predecessor the Disaster Relief Act of 1974 when another Executive Branch organization was willing to take on a mission assignment, even when often being charged excessive overhead rates by the mission assigned organization, such as USACOE. And certainly FEMA was no ingrate and carefully avoided ever examining exactly what capabilities existed in OFA.

Well the result is that 9/11/01 events did not change anything. The last thing that DHS/FEMA would ever produce is a detailed examination of where the so-called EP safety net has holes in it. And oddly no one else has identified those holes either. Congress certainly has no clue. So it awaits a major catastrophe to audit for those gaps.

Now it looks as though E.O. 12656 and other efforts to upgrade civil preparedness of the nation and its resilience will be fixed by elimination of any specific assignmnets of responsibilities. Just compare the watering down of the language of E.O. 12656 as compared to its 1969 predecessor E.O. 112490.

The passage of time does NOT equate to improvement as far as Executive Branch EP capabilities. More to follow as I work through each federal agency. Apologies of course for picking on HUD where I earned a salary from July 1, 1974 to September 10, 1979, before being hired [like all HUD GC staff not moved by determination order of OMB]by the newly created FEMA.

Again To Be or Not To Be--Whither goest FEMA--E.O. 12148

Executive Order 12148 was the ultimate fall back Presidential delegation to FEMA. My position is that the Homeland Security Act of 2002 replaced in its entirety Reorganization Plan No. 3 of 1978 that was implemented by two Executive Orders specifically 12127 and 12148. Most important was the later.

The guts of E.O. 12148 as far as vesting or mandating a role for FEMA was the following language:

"SEC. 2. MANAGEMENT OF EMERGENCY PLANNING AND ASSISTANCE




2-1. General.



2-101. The Director of the Federal Emergency Management Agency

shall establish Federal policies for, and coordinate, all civil

defense and civil emergency planning, management, mitigation, and

assistance functions of Executive agencies.



2-102. The Director shall periodically review and evaluate the

civil defense and civil emergency functions of the Executive

agencies. In order to improve the efficiency and effectiveness of

those functions, the Director shall recommend to the President

alternative methods of providing Federal planning, management,

mitigation, and assistance.



2-103. The Director shall be responsible for the coordination of

efforts to promote dam safety, for the coordination of natural and

nuclear disaster warning systems, and for the coordination of

preparedness and planning to reduce the consequences of major

terrorist incidents.



2-104. The Director shall represent the President in working with

State and local governments and private sector to stimulate

vigorous participation in civil emergency preparedness, mitigation,

response, and recovery programs.



2-105. The Director shall provide an annual report to the

President for subsequent transmittal to the Congress on the

functions of the Federal Emergency Management Agency. The report

shall assess the current overall state of effectiveness of Federal

civil defense and civil emergency functions, organizations,

resources, and systems and recommend measures to be taken to

improve planning, management, assistance, and relief by all levels

of government, the private sector, and volunteer organizations.



2-2. Implementation.



2-201. In executing the functions under this Order, the Director

shall develop policies which provide that all civil defense and

civil emergency functions, resources, and systems of Executive

agencies are:



(a) founded on the use of existing organizations, resources, and

systems to the maximum extent practicable;



(b) integrated effectively with organizations, resources, and

programs of State and local governments, the private sector and

volunteer organizations; and



(c) developed, tested and utilized to prepare for, mitigate,

respond to and recover from the effects on the population of all

forms of emergencies.



2-202. Assignments of civil emergency functions shall, whenever

possible, be based on extensions (under emergency conditions) of

the regular missions of the Executive agencies.



2-203. For purposes of this Order, ''civil emergency'' means any

accidental, natural, man-caused, or wartime emergency or threat

thereof, which causes or may cause substantial injury or harm to

the population or substantial damage to or loss of property.



2-204. In order that civil defense planning continues to be fully

compatible with the Nation's overall strategic policy, and in order

to maintain an effective link between strategic nuclear planning

and nuclear attack preparedness planning, the development of civil

defense policies and programs by the Director of the Federal

Emergency Management Agency shall be subject to oversight by the

Secretary of Defense and the National Security Council.



2-205. To the extent authorized by law and within available

resources, the Secretary of Defense shall provide the Director of

the Federal Emergency Management Agency with support for civil

defense programs in the areas of program development and

administration, technical support, research, communications,

transportation, intelligence, and emergency operations.



2-206. All Executive agencies shall cooperate with and assist the

Director in the performance of his functions."

 Okay let's cut to the chase. If my position is incorrect than how are sections 2-204 and 2-205 currently implemented? Does this mean that because FEMA is supposedly all-hazards then NSC and DOD have oversight of domestic civil all-hazard preparedness, prevention, protection, mitigation, response, and
recovery whenever FEMA is involved? And does DOD provide support to DHS and FEMA for those programs, functions, and activities described in 2-205?

If this is the case then how exactly is FEMA, DOD and NSC organized to carry out the taskings described in E.O. !2148?

To ask the question is to answer it. While still cited by DHS/FEMA in many submissions to Congress including annual budget documents, there is nothing that supports the conclusion that either DOD, NSC, or FEMA pays any attention to these Presidential mandates. Perhaps a DHS/FEMA, DOD, NSC, meeting should be held to decide whether E.O. 12148, which also delegates the Robert T. Stafford Disaster Relief and Emergency Assistance Act and thus that delegation needs retention, E.O. 12148 should be otherwise repealed! Do the written orders of a President mean anything to anybody anymore?

VLG Proposed Revision of E.O. 12656

My understanding is that organizations in the Executive Branch have been asked to comment on the appropriateness for revision and revocation of E.O. 12656.

I am suggesting the revocation of that Executive Order and the incorporation into it the underlying principles of NSDD-47 [1982] concerning mobilization. That NSDD and its partial supersession by NSDD-188 would be encompassed in a new Executive Order that would be all-hazards for domestic catastrophic events and would place the Vice President of the United States in a leadership role while still subject to the direction, control and delegation of the Chief Executive of the United States, the President. While the new order would impact all civilian agencies it would not impact either the military chain of command or the President's role as Commander In Chief. Because it would impact all civil organizations housed in DOD it would make clearer the civil military relationships and civilian control of the military by the Commander In Chief.

My text absent the incorporation of NSDD-47 and 188 is as follows:


EXECUTIVE ORDER



Establishment of a Domestic Civil Crisis Management System For the Possibility of Catastrophic All-Hazards Incidents and Events and the Assignment of Executive Branch Domestic Civil Emergency Preparedness and Civil Mobilization Responsibilities



Presidential Findings and Policy Direction:

Whereas our international and national and homeland security is dependent upon our ability to assure continuity of government at every level, in any incident or event that might confront the Nation; and



Whereas effective national preparedness planning and mobilization to meet such an event, including any WMD attack, is essential to our national survival; and



Whereas effective national preparedness and mobilization requires the identification of functions to be performed during such an event, the assignment of responsibility for developing, implementing, and maintaining the capability to perform these functions; and



Whereas the Congress has directed the development of various emergency preparedness plans and has provided funds for the accomplishment thereof;



NOW, THEREFORE, by virtue of the authority vested in me as President and Chief Executive by the Constitution and laws of the United States of America, and pursuant to the National Security Act of 1947, as amended, the Homeland Security Act of 2002, as amended, and other planning mandates in various statutes, as currently amended, including among others the Clean Air and Clean Water Acts as amended, it is hereby ordered that the responsibilities of the Federal departments and agencies in domestic incidents and events of a catastrophic nature involving all-hazards shall be as follows:





PART 1---Preamble



Section 101. National Emergency Preparedness and Mobilization Policy.



(a) The policy of the United States is to have sufficient capabilities at all levels of government to meet essential defense and civilian needs during any catastrophic domestic incident or event. A catastrophic domestic incident or event is any occurrence, including natural disaster, military attack, technological emergency, or other emergency, that seriously degrades or seriously threatens any element of the federal government, the STATES and their local units and prevents that federal system from protecting the lives and property of individuals residing in the United States. Policy for preparing, mobilizing, planning, preventing, responding or recovery from such events and mitigating such in order to promote resilience of the United States to such a catastrophic domestic event shall be established by the President. Pursuant to the President’s direction all such preparedness and mobilization programs, functions, and activities shall be consistent with the Constitution and laws of the United States and with preservation of Constitutional government of the United States.

(b) Effective catastrophic preparedness and mobilization planning requires: identification of functions that would have to be performed during such an incident or event; development of plans for performing these functions; and development of the capability to execute those plans.



Sec. 102. Purpose.



(a) The purpose of this Order is to assign civil preparedness and mobilization responsibilities to Federal departments and agencies. These assignments are based, whenever possible, on extensions of the regular missions of the departments and agencies.

(b) This Order does not constitute authority to implement the plans prepared pursuant to this Order. Plans so developed may be executed only in the event that authority for such execution is otherwise authorized by law.

(c) This Order is designed to allow the Governors of the respective STATES to understand more completely the design of federal all-hazards crisis management for large-scale domestic events.





Sec. 103. Scope.



(a) This Order addresses preparedness and mobilization programs, functions and activities, primarily of the civil agencies but when necessary with assistance from lawfully developed and instituted units of the National Guard when federalized, the Active Reserve, and the Armed Forces of the United States. As used in this Order, preparedness functions and activities include, as appropriate, policies, plans, procedures, and readiness measures that enhance the ability of the United States Government and the STATES, and the private sector to mobilize for, respond to, and recover from any catastrophic incident or event.

(b) This Order does not apply to those natural disasters, technological emergencies, or other emergencies, the alleviation of which is normally the responsibility of individuals, the private sector, volunteer organizations, State and local governments, and Federal departments and agencies unless such situations also impact governmental capabilities.

(c) This Order does not require the provision of information concerning, or evaluation of, civil or military policies, plans, programs, or states of civil or military readiness.

(d) This Order does not apply to national security emergency preparedness telecommunications functions and responsibilities that are otherwise assigned by Executive Order 12472, as amended.



Sec. 104. Management of Catastrophic Civil Preparedness and Mobilization.



(a) The Vice President of the United States shall be the principal manager of the programs, functions, and activities developed under this Executive Order which he/she may in turn delegate appropriately to the head of any department or agency that does not otherwise contravene statutory authority. The Attorney General of the United States and the Advisor to the President for National Security Affairs shall be the principal advisers to the Vice President on implementing this Order.

(b) Where programs, functions or activities involving catastrophic preparedness and mobilization functions are shared by more than one agency they shall be coordinated by the head of the Federal Department or agency having primary responsibility as determined by the Vice President and shall be supported by the heads of other departments and agencies having related responsibilities.

(c) There shall be a catastrophic civil preparedness and mobilization exercise program that shall be supported by the heads of all appropriate Federal departments and agencies.

(d) Plans and procedures will be designed and developed to provide maximum flexibility to the President for his implementation of emergency actions.



Sec. 105. Interagency Coordination.



All Cabinet members and agency heads shall be consulted regarding catastrophic national preparedness and mobilization programs, functions, and activities. Each department and agency shall support interagency coordination to improve preparedness and mobilization and response to a catastrophic civil incidents/events and shall develop and maintain resilient capabilities to the extent feasible and appropriate.



PART 2----General Provisions



Sec. 201. General. The head of each Federal department and agency, as appropriate, shall:

(1) Be prepared to respond adequately to all catastrophic civil incidents and events, including those that may occur within any region of the Nation:

(2) Emergency plans and programs, and an appropriate state of readiness, including organizational infrastructure, shall be developed as an integral part of the continuing activities of each Federal department and agency;

(3) Appoint a senior appointed official as Preparedness and Mobilization Coordinator, responsible for developing and maintaining a multi-year plan for the department or agency to include objectives, programs, and budgetary requirements; and to include implementation and operation.

(4) Design preparedness measures to permit a rapid and effective transition

From routine to emergency operations, and to make effective use of the period following initial warning of any catastrophic incident and or event. This will include:

(a) Development of a system of emergency actions that provides options and alternatives, processes, and issues to be considered during various stages of catastrophic civil incidents or events;

(b) Identification of actions that could be taken in the early stages of a civil catastrophic incident or event to mitigate the impact of or reduce significantly the lead times associated with full emergency action implementation;

(5) Base preparedness and mobilization measures on the use of existing authorities, organizations, resources, and systems to the maximum extent practicable;

(6) Identify areas where additional legal authorities may be needed to assist management and, consistent with applicable Executive orders, take appropriate measures toward acquiring those authorities;

(7) Make policy recommendations to the Vice President and President of the United States regarding programs, functions, and activities of the Federal Government concerning catastrophic civil preparedness and mobilization;

(8) Coordinate with the STATES and their local government agencies and other organizations, including private sector organizations, when appropriate. Federal plans should include appropriate involvement of and reliance upon private sector entities in developing plans for mitigating the effects of catastrophic incidents and events impacting civil government and individual citizens, residents, and property owners, and for providing services that are essential to a national response;

(9) Assist the STATES, local, and private sector entities in developing plans for mitigating the effects of catastrophic civil incidents and events and for providing services that are essential to a national response effort;

(10) Cooperate, to the extent appropriate, in compiling, evaluating, and exchanging relevant data related to all aspects of catastrophic preparedness and mobilization efforts;

(11) Develop programs regarding congressional relations and public information that could be used during catastrophic incidents and events, including all elements of Emergency Public Information and ensuring that Protective Action Guidance and Decisions are disseminated only by proper authority and that rumor control is adequately accomplished.

(12) Ensure a capability to provide information concerning Acts of Congress, presidential proclamations, Executive orders, regulations, and notices of other actions to the Archivist of the United States, for publication in the Federal Register;

(13) Develop and conduct training and education programs that incorporate emergency preparedness and mobilization information necessary to ensure an effective national domestic civil response;

(14) Ensure that plans consider the consequences for essential services provided by the STATES and their local governments, and by the private sector, in the event the flow of Federal funds is disrupted;

(15) Consult and coordinate with the Vice President to ensure that those activities and plans are consistent with current Presidential guidelines and policies.



Sec. 202. Continuity of Government. The head of each Federal department and agency shall ensure the continuity of essential functions in any national security emergency by providing for: succession to office and emergency delegation of authority in accordance with applicable law; safekeeping of essential resources, facilities, and records; and establishment of emergency operating capabilities. The federal government shall support with appropriate guidance and funding STATE continuity of government.

Sec. 203. Resource Management. The head of each Federal department and agency, as appropriate within assigned areas of responsibility, shall:

(1) Develop plans and programs to mobilize personnel including reservist programs), equipment, facilities, and other resources;

(2) Assess essential emergency requirements and plan for the possible use of alternative resources to meet essential demands during any large scale domestic crisis or catastrophic incident or event;



Sec. 204. Federal Benefit, Insurance, and Loan Programs. The head of each Federal department and agency that administers a loan, insurance, or benefit programs that relies upon the Federal Government payment system shall coordinate with the Secretary of the Treasury in developing plans for the continuation or restoration, to the extent feasible, of such programs in national security emergencies.



Sec. 205. Research. The Director of the Office of Science and Technology Policy and the heads of Federal departments and agencies having significant research and development programs shall advise the Vice President and the President of scientific and technological developments that should be considered in catastrophic civil preparedness and mobilization planning.



Sec. 206. Redelegation. The head of each Federal department and agency is hereby authorized, to the extent otherwise permitted by law, to redelegate the functions assigned by this Order, and authorize successive re-delegations to organizations, officers, or employees within that department or agency, and where appropriate to cross-delegate to other departments and agencies with the permission of the Vice President or President.



Sec. 207. Retention of Existing Authority. Nothing in this Order shall be deemed to derogate from existing statutory assignments of functions to any Federal department or agency or officer thereof. Any statutory conflicts will be resolved the respective agency or department head in conjunction with the Attorney General or his/her delegate.






Sec. 208. Executive Order No 12656, as amended, is hereby revoked. This Order is effective immediately.

Research Materials--Oddball URLs

From time to time I add to my collection of somewhat oddball URLs that I find myself searching for to refresh my memory. Thanks to Steve Aftergood at FAS [Federation of American Scientists] for help in scanning an posting many of these.

Anyhow here is latest roundup of stray URLs:

VLG Technical Note-Common Use URLs-

1. Trefry Report—http://www.fas.org/sgp/library/trefry.pdf
2. NAPB-90—http://www.fas.org/nuke/guide/usa/napb-90/index.html
3. Argonne Chron--- http://www.fas.org/irp/agency/dhs/fema/chron.pdf
4. NSDDs—http://www.fas.org/irp/offdocs/nsdd/index.html
5. CRS On EO 12657—http://www.fas.org/sgp/crs/homesec/fema-nuke.pdf
6. FEMA 2000 Transition Book submission for Presidential Transition Team from George W. Bush to Barack H. Obama as President-- http://www.fas.org/irp/agency/dhs/fema/transition2009.pdf
7. 1962 National Emergency Study of authority extract--http://www.fas.org/sgp/library/fedlaw.pdf
8. Historical Materials scanned by FAS--http://www.fas.org/irp/agency/dhs/fema/index.html
9.  December 1985 AG Letter--http://www.fas.org/irp/agency/dhs/fema/ag121385.pdf
10.  June 85 AG letter-- http://www.fas.org/irp/agency/dhs/fema/doj-comments.pdf
11. A Concept of Homeland Security--http://www.vacationlanegrp.com/pdf/concept_hls.pdf
12. CIVIL DEFENSE FOR NATIONAL SECURITY (1948)-- http://www.fas.org/irp/agency/dhs/fema/civildef-1948.pdf

Mitigation-Wherefore Art thou? VLG TECHNICAL NOTE

I published the VLG technical note below sometime ago. I have decided to republish and update it.
VLG TECHNICAL NOTE 2010-10-8

Disaster Mitigation Act of 2000

In 1994 FEMA rejected the argument that the Robert T. Stafford Act, Pub.L 100-707, that had been signed into law on November 23, 1988, contained any authority for pre-disaster mitigation. This incorrect legal conclusion however led to the eventual adoption of the Disaster Mitigation Act of 2000, Pub.L. 106-390, October 30, 2000. This statute enhanced the mitigation portions of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707. The FEMA decision was made despite the fact that the Disaster Relief Act of 1974, Pub.L.93-288 mandated community mitigation plans after each disaster. The required post-disaster mitigation was to take place in every community receiving disaster relief, but no substantive regulations were issued until 1979. Raising an almost Chicken or Egg paradigm as to which comes first, most communities in the USA that received disaster relief after November 23, 1988 when the Stafford Act became law had experienced at least one disaster and therefore were already under mandatory mitigation compliance requirements. The pre-disaster post-disaster conundrum was in reality FEMA’s way of ignoring the requirements of the 1974 Act. The legislative history of that statute was fully entwined with that of the Flood Disaster Protection Act of 1973 (codified together with the National Flood Insurance Act of 1968 at 42 U.S.C. 4001-4128) that had removed the barrier to disaster relief in Pennsylvania communities and other affected by Tropical Storm Agnes if the communities had been eligible for flood insurance and individual property owners had not purchased it. Believing that for the first disaster the prohibition on receipt of disaster relief was too onerous, a so-called first-bite free rule was adopted. That is individuals in a flood-prone community could receive disaster relief if they then purchased and maintained flood insurance. Additionally, disaster impacted communities had to adopt a mitigation plan before receiving further disaster relief.

The Disaster Mitigation Act of 2000, Pub.L. 106-390 (H.R. 707) was signed October 30, 2000. An interim rule was published at 67 Fed. Reg. 61445-61460. Among other issues, the FEMA rule postponed for another full year the requirement that State-wide mitigation plans be adopted. Thus, the cycle of delay and lack of enforcement continues.

The signing of Pub.L. 107-296 on November 25, 2002, of the Department of Homeland Security Act of 2002, raised the question of wheregoest mitigation. It was possible that mitigation could be extended to non-natural disasters. A recommendation that was made by the General Accounting Office on September 30, 2002, in a Report to the Chairman, Subcommittee on International Security, Proliferation, and Federal Services. Committee on Governmental Affairs, United States Senate. A committee to be chaired by Senator Susan Collins of Maine in the 108th Congress beginning January 7, 2003. The GAO report (GAO-02-1035) is entitled “Hazard Mitigation-Proposed Changes to FEMA’s Multi-hazard Mitigation Programs Present Challenges.” The OIG/HHS in the fall of 2009 also concluded that non-natural hazards could be mitigated. Of course in my opinion MITIGATION is part of the paradigm that the DHS has adopted under the rubric "Resilience" as is protection and prevention, the latter added to the disaster paradigm for better or worse by PKEMA 2006.

Numerous definitions of “Mitigation” exist. Perhaps the simplest is mitigation means efforts to reduce the likelihood of serious consequences from future disasters. Another definition is mitigation includes the policies and actions undertake at a time distant (usually considerably before) from actual disaster situations and that are intended to prevent or reduce a disaster impact when it occurs.

Accordingly, a major decision of interest in creation of the DHS was how the Secretary of the Department of Homeland Security interprets mitigation authority and how mitigation programs, functions, and activities would survive.

That answer is now pretty clear. Mitigation despite be strengthened by statute is not effective in DHS/FEMA programs, functions, and activities and in fact rewards past non-compliance. All it would take to prove this is for the OIG/DHS to examine mitigation efforts in the top 100 communties that have received disaster relief since 1974 or the top 100 communities by paid claims under the NFIP since 1978.

So again the Administration has failed to seize the opportunity to put those in charge of DHS that believe in mitigation. And note for the record that the draft revision to E.O. 11988 released semi-publically in June 2009 has never been finalized and that draft is worse than the current version.