Wednesday, November 17, 2010

Defective Legislation

From time to time this blog will point out defects--some major some minor--in statutes in the US Code that are either directly contrary to the main purposes of the statutes or adversely impact implementation. Not the entire code of course--just statutes administered primarily by DHS and FEMA.

Other statutes with major defects related to HS/EM are readily available for others to analyze. For example virtually all of EPA's statutory authority have failed to be comprehensively updated and many since the agency was founded. If I had to pick out two it would be the Clean Air Act and the Clean Water Act.

So I thought I would start with Title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act which was enacted by Public Law 103-337 and derives from Public Law 920 of the 81st Congress that was the Federal Civil Defense Act of 1950. Some history of that statute appears on the documents listed at the top of the home page of this blog.

So my version would totally replace the current version of Title VI enacted hurriedly and in an effort primarily not to design good legislation but to remove the Senate and House Armed Services from direct oversight of any FEMA programs, functions, or activities in the early 90's. Title VI did accomplish that Congressional jurisdictional change but is not a well drafted effort.

So here is my version:



Declaration of Policy (42 U.S.C. §5195)

§601. The purpose of this subchapter is to provide a system of resilience for the protection of life and property in the United States from all-hazards not subject to regulation under the Commerce Clause of the Constitution and their accidental or intentional occurrence. The Congress recognizes that this resilience has elements of prevention, protection, preparedness, mitigation, response and recovery and that governmental organizational structures established by the Federal government and the States and their political subdivisions for emergency preparedness purposes can be effectively utilized to provide relief and assistance to people in areas of the United States struck by any hazard. The Federal Government shall provide necessary direction, coordination, and guidance, and shall provide necessary assistance, as authorized in this subchapter so that a comprehensive system to promote the elements of resilience exists for all hazards.

Definitions (42 U.S.C. §5195a)

§602. (a) Definitions. For purposes of this subchapter only:

(1) Hazard.

The term “hazard” means an emergency or disaster resulting from-

(A) a natural disaster; or

(B) an accidental or intentional event.

(2) Natural Disaster.

The term “natural disaster” means any hazard such as hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, drought, fire, or other catastrophic incident or event in any part of the United States that causes, or that may cause, substantial damage or injury to civilian property or persons.

(3) Resilience.

The term “resilience" means all those activities and measures designed or undertaken to prepare for or minimize the effects of a hazard upon the civilian population, to deal with the immediate emergency conditions which would be created by the hazard, and to effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by the hazard. Such term includes the following:

(A) Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems, the construction or preparation of shelters, shelter areas, and control centers, and, when appropriate, the non-military evacuation of the civilian population).

(B) Measures to be undertaken during a actual incident or event the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications; issuance of Protective Action Recommendations and Decisions to the public, fire fighting, search and rescue, emergency medical, health and sanitation services, monitoring for specific dangers or special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities.

(b) Cross Reference.
The terms “national defense” and “defense”, as used in the Defense Production Act of 1950 (50 U.S.C. App. §2061 et seq.), includes resilience programs, functions, and activities conducted pursuant to this Title.

Detailed Functions of Administration (42 U.S.C. §5196)
§611. (a) In General.
In order to carry out the policy described in §601[42 U.S.C.§5195], the Secretary Department of Homeland Security shall have the authorities provided in this section.
(b) Federal REsilience Plans and Programs.
The Secretary may prepare Federal plans and administer programs, functions, and activities to provide for the civil security and resilience of the United States or sponsor and assist such plans and programs when conducted by other governmental units.
(c) Delegation of Responsibilities.
With the approval of the President, the Secretary may cross delegate to other departments and agencies of the Federal government appropriate responsibilities and review and coordinate the activities of the departments and agencies with each other.
d) Communications and Warnings.
The Secretary shall make appropriate provision for necessary communications and for dissemination of warnings and alerts to the civilian population of the United States..
(2) developing shelter designs and materials for protective covering or construction; and
(3) developing equipment or facilities and effecting the standardization thereof to meet emergency preparedness requirements.

(b) conduct or operate schools, including the payment of travel expenses, in accordance with subchapter I of chapter 57 of title 5, United States Code, and the Standardized Government Travel Regulations, and per diem allowances, in lieu of subsistence for trainees in attendance of the furnishing of subsistence and quarters for trainees and instructor on terms prescribed by the Director.
((3) The Director may lease real property required for the purpose of carrying out this subsection, but may not acquire fee title to property unless specifically authorized by law.
(c) Emergency Public Informaton.
The Secretary may publicly disseminate appropriate emergency public information by all appropriate means.
(d) Interstate Emergency Preparedness Compacts.
(1) The Secretary may ---
(A) assist and encourage the States to negotiate and enter into interstate compacts that support resilience;

(B) review the terms and conditions of such proposed compacts in order to assist, to the extent, feasible, in obtaining uniformity between such compacts and consistency with plans and programs;
(C) aid and assist in encouraging reciprocal emergency preparedness legislation by the States which will permit the furnishing of mutual aid for emergency preparedness in the event of a hazard which cannot be adequately met or controlled by a State or political subdivision thereof threatened with or experiencing a hazard.
(2) A copy of each interstate emergency preparedness compact shall be transmitted promptly to the Senate and the House of Representatives. The consent of Congress is deemed to be granted to each such compact upon the expiration of the 60-day period beginning on the date on which the compact is transmitted to Congress.
(3) Nothing in this subsection shall be construed as preventing Congress from disapproving, or withdrawing at any time its consent to, any interstate emergency preparedness compact.
(4) The Director may procure and maintain under this subsection radiological, chemical, bacteriological, and biological agent monitoring and decontamination devices and distribute such devices by loan or grant to the States for emergency preparedness purposes under such terms and conditions as the Director shall prescribe.

(j) Financial Contributions.

Mutual Aid Pacts Between States and Neighboring Countries (42 U.S.C. §5196a)

§612. The Secretary shall give all practicable assistance to States in arranging, through the Department of State, mutual emergency preparedness aid between the States and neighboring countries.

Part B ---General Provisions
(42 U.S.C. §5197)
§621. (a) In General.
For the purpose of carrying out the powers and duties assigned to the Secretary under this subchapter, the Secretary may exercise the administrative authorities provided under this section.
(b) Advisory Personnel.
(1) The Secretary may employ not more than 50 part-time or temporary advisory personnel (including not to exceed 25 subjects of the United Kingdom or citizens of Canada) as the Secretary considers to be necessary in carrying out the provisions of this subchapter.
(c) Services of Other Agency Personnel and Volunteers.
The Secretary may ---
(1) use the services of Federal agencies and, with the consent of any State or local government, accept and use the services of State and local agencies;
(2) establish and use such regional and other offices as may be necessary; and
(3) use such voluntary and uncompensated services by individuals or organizations as may from time to time be needed.
(d) Costs. [Gifts]
Notwithstanding any other provision of law, the Secretary may accept gifts of supplies, equipment, and facilities and may use or distribute such gifts for emergency preparedness purposes in accordance with provisions of this subchapter.

(e) Reimbursement.
The Secretary may reimburse any Federal agency for any of its expenditures or for compensation of its personnel and use or consumption of its materials and facilities under this subchapter to the extent funds are available.
(g) Rules and Regulations.
The Secreatry may prescribe such rules and regulations as may be necessary and proper to carry out any of the provisions of this subchapter and perform any of the powers and duties provided by this subchapter. The Secretary may perform any of the powers and duties provided by this subchapter through or with the aid of such officials of the Federal Emergency Management Agency as the Secretary may designate.
(h) Prevention of waste, fraud or abuse.
(1) When, after reasonable notice and opportunity for hearing to the State or other person involved, the Secretary finds that there is a failure to expend funds in accordance with the regulations, terms, and conditions established under this subchapter for approved emergency preparedness plans, programs, or projects, the Secretary may notify such State or person that further payments will not be made to the State or person from appropriations under this subchapter (or from funds otherwise available subchapter for any approved plan, program, or project with respect to which there is such failure to comply) until the Secretary is satisfied that there will no longer be any such failure.
(2) Until so satisfied, the Secretary shall either withhold the payment of any financial contribution to such State or person or limit payments to those programs or projects with respect to which there is substantial compliance with the regulations, terms and conditions governing plans, programs, or projects hereunder.
(3) As used in this subsection, the term ‘person’ means the political subdivision of any State or combination or group thereof or any person, corporation, association, or other entity of any nature whatsoever, including instrumentalities of States and political subdivisions.
Security Regulations (42 U.S.C.§5197a)
Use of Existing Facilities (42 U.S.C. §5197b)
§623. Use of Existing Facilities.
In performing duties under this subchapter, the Secretary---
(1) shall cooperate with the various departments and agencies of the Federal government;
(2) shall use, to the maximum extent, the existing facilities and resources of the Federal government and, with their consent, the facilities and resources of the States and political subdivisions thereof, and of other organizations and agencies; and
(3) shall refrain from engaging in any form of activity which would duplicate or parallel activity of any other Federal department or agency unless the Secretary, with the written approval of the President, shall determine that such duplication is necessary to accomplish the purposes of this subchapter.
Applicability of subchapter (42 U.S.C. §5197d)
§625. The provisions of this subchapter shall be applicable to the United States, its States, Territories and possessions, and the District of Columbia, and their political subdivisions.
Authorization of Appropriation and Transfers of Funds (42 U.S.C. §5197e)
§626. (a) Authorization of Appropriations.
There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this subchapter.
(b) Transfer Authority.
Funds made available for the purposes of this subchapter may be allocated or transferred for any of the purposes of this subchapter, with the approval of the Director of the Office of Management and Budget, to any agency or government corporation designated to assist in carrying out this subchapter. Each such allocation or transfer shall be reported in full detail to the Congress within 30 days after such allocation or transfer.
Relation to Atomic Energy Act of 1954 (42 U.S.C. §5197f)
§627. Nothing in this subchapter shall be construed to alter or modify the provisions of the Atomic Energy Act of 1954 (42 U.S.C. §2011 et seq.)
Federal Bureau of Investigation (42 U.S. C. §5197g)
§628. Nothing in this subchapter shall be construed to authorize investigations of espionage, sabotage, or subversive acts by any persons other than personnel of the Federal Bureau of Investigation.

Looking forwards to Congress consideration of this modified Title VI!