The Vacation Lane Blog: February 2011

The discussion set forth below should be reasonably self explanatory. Posting it here before the start of the 2011 Hurricane Season or another catstrophic disaster provides a useful starting point to see if FEMA has resolved the issues and policy disagreements stemming from its abysmal performance in Hurricane Andrew, many repeated 13 years later in Hurricane Katrina although sometimes for different reasons but the same abysmal result. And note for the record many of the same problems arose in Hurricane Hugo in 1989. So here goes:

Document is not copyrighted
[Comments welcome and can be transmitted to vacationlanegrp@aol.com]

VLG ANNOTATED VERSION OF OIG INSPECTION
REPORT HURRICANE ANDREW
Prepared by VLG
Revised March 2007

This document is furnished to assist researchers in analyses of Emergency Management and Homeland Security Policy Comment, suggestions or corrections are welcomed by the editor and may be sent to vacationlanegrp@aol.com.
The purpose of the editor in providing this annotated document is to enhance understanding of current issues and policy formulation in domestic crisis response and recovery.

INTERNAL COMMENTS ON OIG INSPECTION REPORT ON HURRICANE ANDREW (1992)

Background: On May 11, 1992, just over three months before Hurricane Andrew made landfall the OIG FEMA issued a draft Inspection report subject: Federal Response Planning and Coordination. Because many of the issues discussed in the draft OIG report and the comments on that relate to current Post-Katrina analysis and the document is not generally available to the public the internal FEMA comments are reproduced here. The OIG report was issued in final on September 14, 1992, and is available on the Historical Docs section of the Homepage of this blog. Some editorial comment is included to further assist the public understanding of the issues discussed. This document should be read in conjunction with the unpublished legal annex to the NAPA (National Academy of Public Administration Report) issued in March 1993, also available from the editor, and that document also has editorial comments provided by VLG.

The internal comments consist of two memorandums:

1) GCM-92-7-6, MEMORANDUM FOR: Russell F. Miller, Inspector General FROM: Patricia M. Gormley, General Counsel SUBJECT: Draft Inspector General’s Report: Federal Response Planning and Coordination, Dated July 6, 1992; [Note memorandum issued before Hurricane Andrew, landfall August 22, 1992]

2) MEMORANDUM FOR: Russell F. Miller, Inspector General FROM: Antonio Lopez, Associate Director, National Preparedness, and Grant C. Peterson, Associate Director, State and Local Programs and Support SUBJECT: Draft Inspection Report Federal Response Planning and Coordination. [Note issued after Hurricane Andrew and finalized 3 days before the OIG issued its report]

These documents are important both for their identification of issues and for their discussion of those issues and the policies adopted or rejected. The final OIG Inspection Report was furnished to the NAPA (National Academy of Public Administration) team that produced the report “Coping With Catastrophe” published in March 1993. It is unknown whether the second memorandum was furnished to the NAPA team but GCM-92-7-6 was furnished by the editor to the NAPA team’s legal adviser at the time his study was being conducted and is reflected in his lengthy legal analysis also made available.

GCM-92-7-6

Federal Emergency Management Agency
Washington, D.C. 20472

July 6, 1992

MEMORANDUM FOR: Russell F. Miller
Inspector General

FROM: /S/ Patricia M. Gormley
General Counsel

SUBJECT: Draft Inspector [sic] General’s Report: Federal Response Planning and Coordination

The Office of General Counsel (OGC) has reviewed the draft report, “Federal Response Planning and Coordination” and I have identified the following legal issues:

1. On page X-2, the draft report identifies two issues about which further clarification is needed. Three others are supported by the text of the report and could be added [to] for completeness.
a. The use or application of the Federal Response Plan (for Public Law 93-288, as Amended) (FRP) when there has been no Presidential declaration of an emergency or major disaster but it appears likely that there will be a declaration;
b. The use or application of the FRP when there has been no Presidential declaration of an emergency or major disaster and it appears likely that there will not be a declaration [BP Catastrophe];
c. The integration of other (non-Stafford Act) authorities of the Federal Emergency Management Agency (FEMA) into the execution of the FRP.

2. On page 6 of the draft report, in the context of the Exxon Valdez oil spill, there is a reference to “incorrect perceptions regarding FEMA’s role in emergencies ‘outside’ traditional Stafford Act coverage, i.e., natural disasters.” This observation, with qualifications, more precisely pertains to FEMA’s administrative interpretation of the Disaster Relief Act of 1974, Public Law 93-288, 88 Stat. 143, for the following reasons:
a. Both the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-288, as amended, 42 U.S.C. Sections 5121-5201 (the Stafford Act) [Public Law 100-707] and the act it amended, the Disaster Relief Act of 1974, distinguish between “emergency” and “major disaster.” See the attached statutory definitions.
b. In the Stafford Act, the definition of “major disaster” includes any natural catastrophe, “or, regardless of cause, any fire, flood, or explosion.” 42 U.S.C. Section 5122(2).
c. In the Disaster Relief Act of 1974, the definition of “major disaster” included enumerated natural catastrophes, fire, flood, explosion, “or other catastrophe.” Public Law 93-288, Section 102(2).
d. In the Stafford Act, “emergency” is defined primarily in terms of the scope of the damage, rather than the cause, which may be “any occasion or instance.” 42 U.S.C. Section 5122(1). [This could be interpreted as disagreeing with prior FEMA OGC analysis particularly with respect to subjects of “Primary Federal Responsibility” as stated in the Act.]
e. In the Disaster Relief Act of 1974, the definition of “emergency,” like that of “major disaster,” included natural catastrophe, fire, flood, or explosion, “or other catastrophe.” Public Law 93-288, Section 102(1).
f. “Catastrophe” is not defined in either act, but clearly encompasses both “emergency” and “major disaster.”
g. The definitions of both “emergency” and “major disaster” in both the Disaster Relief Act of 1974 and the Stafford Act include some “non-natural” events.
h. After the Mariel Boatlift [Refugees from Cuba] in 1980, FEMA administratively limited the interpretation of “emergency” to natural catastrophes. [Note that this administrative attempt to preclude application when the first major disaster declaration of President Ronald Regan applied the DRA of 1974 to the sewer explosions in Louisville, Kentucky caused by a Hexane release by the Ralston Purina, Inc.]

3. Beginning on page 4 of the draft report, there are several references to NSEC (National System for Emergency Coordination) and NECS (National Emergency Coordination Structure) where the acronyms have been transposed. In addition, I recommend that the report explain the distinction between the National System for Emergency Coordination and the National Emergency Coordination Structure.

Attachments: Text of Statutory Definitions of “Emergency” and “Major Disaster”
STATUTORY DEFINITIONS OF “EMERGENCY”

DISASTER RELIEF ACT OF 1974

(1) “Emergency” means any hurricane, tornado, storm, flood, high water, wind-driven rain, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, drought, fire, flood, explosion, or other catastrophe in any part of the United States which requires Federal emergency assistance to supplement State and local efforts to save lives and protect property, public health and safety or to avert or lessen the threat of a disaster. Section 102(1), Public Law 93-288 [Amended by the Stafford Act section 5122(1)]

STAFFORD ACT

(1) “Emergency” means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and protect property and public health and safety, or to avert or lessen the threat of a catastrophe in any part of the United States. 42 U.S.C. Section 5122(1) [Section 102(1) of Public Law 93-288 as amended]
STATUTORY DEFINITIONS OF ‘MAJOR DISASTER”

DISASTER RELIEF ACT OF 1974

(2) “Major disaster” means any hurricane, tornado, storm, flood, high water, wind-driven rain, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, drought, fire, flood, explosion, or other catastrophe in any part of the United States which, in the determination of the President, causes damage of sufficient severity and magnitude to warrant major disaster assistance under this Act, above and beyond emergency services by the Federal Government, to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.
Section 102(2), Public Law 93-288

[Later amended by the Stafford Act. See 42 U.S.C. Section 5122(2)]

STAFFORD ACT

(2) “Major disaster” means any natural catastrophe (including hurricane, tornado, storm, flood, high water, wind-driven rain, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, drought), or regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this Act to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby. 42 U.S.C. section 5122(2) {Section 102(2) of Public Law 93-288 as amended]

FEDERAL EMERGENCY MANAGEMENT AGENCY
Washington, D.C. 20472

September 11, 1992

MEMORANDUM FOR: Russell F. Miller
Inspector General

FROM: /S/ Antonio Lopez
Associate Director
National Preparedness

/S/ Grant C. Peterson
Associate Director
State and Local Programs and Support

SUBJECT: Draft Inspection Report: Federal Response Planning and Coordination

Thank you for providing us an extended opportunity to review the draft of the subject report prior to its issuance on September 11, 1992. [Report actually issued on September 14, 1992] While it is unfortunate that we could not have provided comments earlier, and further unfortunate that we need to take the time to address this report while we are in the midst of a response to a catastrophic disaster, we will attempt to address all of the issues that are of concern to the Agency and our Directorates in particular. Our comments will address individual conclusions, recommendations or issues as outlined in the report.

GENERAL

Any discussion or analysis of Federal response planning and coordination is, by its very nature, a very broad and complex issue involving many different legal, legislative and even cultural aspects. While we recognize that this has been a good faith attempt on the part of your office to investigate this issue, we must register strong objections to the tone, content, recommendations and conclusions contained in this report. Our objections are based on the fact that the report itself is cursory at best, bases conclusions and recommendations on premises that are not necessarily supported by current activities, and provide a generally inaccurate picture of the past and current efforts in the area of Federal response planning and coordination by this Agency and its component elements. Of more critical importance is the simple fact that the report pays no attention [to] the many positive actions
And directions that have been taken to accomplish a cohesive Federal response planning and coordination function.

In stating our objections, we do not wish in any way to imply that we do not recognize that there have been some serious challenges in this area. FEMA and its predecessor agencies [Pre-1979] have wrestled with the issues surrounding these functions for many years and there is no question but that there have been overlaps and even duplications throughout these processes. At the same time, it is important that appropriate attention be paid to some of the root causes of these problems, including the legal, legislative and national security constraints under which the Agency and its predecessors have operated for 40 years. To ignore these elements is to portray a fundamentally inaccurate picture of the evolution of Federal response planning and coordination throughout its history.

We also want to make clear at the outset that we have no vested interest in whitewashing any of these issues – that would be of no benefit to anyone involved at any level of government or the private sector. At the same time, we do have a vested interest in making sure that the evolution of and problems with these issues are portrayed accurately. There is no question but that the impact of Hurricane Andrew on Florida and Louisiana will have a significant impact on Federal response planning and coordination in the coming months and that there will be many recommendations for improvements, changes or new methods that will be developed. And it is not unreasonable to expect that many of these recommendations for improvements, changes or new methods will be based, in part, on the contents of your report; however, in its current form, with the many inaccuracies and omissions contained in it, this report has the potential to provide an erroneous base level for future decision making.

Our subsequent comments will be keyed to the individual statements and/or sections contained in your draft report. We have not commented on the Executive Summary since it is only a recapitulation of the contents of the report itself. Statements from the report itself on which our comments are made are noted in italics.[Note that to avoid confusion with the Editor’s comments statements from the original report are underlined as well as Italicized.]

Page 1 – Section 1

Most of the finds in these reports supported FEMA’s planning initiatives. However, other findings underscored opportunities for greater program efficiencies by incorporating other hazard-specific plans into the Federal Response Plan.

This statement ignores one of the fundamental premises of the Federal Response Plan, i.e., it is an all-hazards plan to be used in responding to large-scale or catastrophic disasters. The Federal Response Plan was never designed to be an additional plan – it was designed to be the Plan to be used by the Federal Government in emergency operations in response to natural and technological hazards. In fact, the origins of the Federal Response Plan are to be found in the attempt to develop a hazard-specific plan for catastrophic earthquakes. [Note the earthquake plan was mandated by the Earthquake Hazards Reduction Act of 1977, as amended and the plan, unlike the Federal Response Plan, was actually published in 1987 in the Federal Register. That plan went through one further evolution on its way to becoming the basis for the Federal Response Plan when it was renamed and reissued as the Federal Plan for Response to Catastrophic Natural Hazards]

Recognition of a widespread threat of earthquakes prompted Congress to legislate a national program for reduction of earthquake hazards. The original proposed legislation, which started in 1972 culminated in the Earthquake Hazards Reduction Act [of 1977] Public law 95-124, which was signed into law on October 7, 1977. This authority provided the cornerstone on which today’s Federal disaster response planning rests.

[It should be noted that in the mid-1970’s scientist believed that earthquake prediction science was about to yield breakthroughs. 30 years later that hope (or problem) has not proved accurate. Nonetheless the legislation was predicated on it being true and that resulted in the mandate for a plan. In addition, after Mt. Saint Helens erupted in 1980, President Carter together with his National Security Advisor speculated on the effect on national security of a large-scale earthquake in southern California The President order both a classified and unclassified study of the impacts of such a study. One result of those studies was the issuance in 1982 of National Security Decision Directive 47 that for the first time used the words “National Security Emergency” and required a single domestic response mobilization system for both earthquakes and any other domestic event impacting national security. Copies of the NSDD are available from the Reagan Presidential library or the editor.]

The second key ingredient to Federal disaster response planning is contained in the authority Congress provided with the Disaster Relief Act of 1974 (Public Law 93-288), as amended through the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707 (November23, 1988). This legislation provides the Federal Emergency Management Agency (hereinafter “FEMA”) with the authority to direct emergency domestic planning for the Federal government and, upon Presidential disaster or emergency declaration, the authority to task other Federal agencies as required to protect lives and property.

[It should be noted that the statement is not technically correct since both the 1974 statute and the 1988 amendments and independent sections vest authority in the President, not the Director of FEMA. In November 1994, Congress in repealing the Federal Civil Defense Act of 1950 (Public Law 81-920) adopted new language bases on the FCDA, substituting the words “emergency management” for “civil defense” with one exception and vesting that authority in the Director of FEMA. That language requires the development of by the Director of a Federal response system, not a plan, and no requirement for adoption of a plan exists otherwise in the Stafford Act.]
In 1980, Congress passed the next piece of legislation that would have an impact on planning efforts – an amendment to the National Earthquake Hazards Reduction Act (Public Law 96-472) that required FEMA to lead the development of an inter-agency coordination plan for earthquake mitigation and response. Between 1982 and 1986, FEMA used the Congressional charter provided by this legislation to direct an intensive effort of [sic] Federal and State agencies in the development of a plan that would organize Federal disaster response. The result of that effort was realized in 1987 when 26 Federal agencies signed the Federal Plan for Response to a Catastrophic Earthquake. [The original 1977 statute vested authority in the President. The later amendments recognized that FEMA had been created by Reorganization Plan No. 1 of 1978, and stood up as an independent Executive Branch agency on April 1, 1979.] Now the Homeland Security Act of 2002, the Homeland Security Strategy (July 2002) and the Reorganization Plan sent to Congress on November 25, 2002 in accordance with the Homeland Security Act of 2002 mandate a National Response Plan. HSPDs 5&8 implement that mandate.]

As the result of Hurricane Hugo [1989] and the Loma Prieta earthquake [1989], FEMA reexamined its leadership role in coordinating the whole spectrum of the Federal government’s response to natural disasters and other significant events. Based on the specific need for a rapid and coordinated Federal response to a catastrophic earthquake, as well as the potential need for such a response to other significant disasters such as a hurricane, FEMA has expanded the scope of the original earthquake plan to include a variety of natural disasters and other events that may require Federal response assistance. The result is the Federal Response Plan, that is applicable to a variety of natural disasters such as earthquakes, hurricanes, typhoons [hurricanes and typhoons are both cyclonic storms], tornadoes, volcanic eruptions and other significant events that could result in the need for substantial Federal response activities. [The FRP was formally adopted in May 1992]

Throughout the development process, FEMA has worked closely with all 27 Federal departments and agencies, to ensure the effective incorporation of other, hazard-specific plans such as the Federal Radiological Emergency Response Plan [mandated by E.O 12241 (1980) and published in the Federal Register in 1986] and the National Oil and Hazardous Substance Pollution Contingency Plan [Published at 40 CFR Part 300 and most recently revised in 1994].

[It should be noted that the Homeland Security Strategy published in July 2002, the Homeland Security Act of 2002, Public Law 107-296 (November 25, 2002), and Homeland Security Presidential Directive (HSPD) 5 (February 28, 2003) called for these plans to be incorporated into a National Response Plan (formally adopted April 2005)]

At the outset of FEMA’s Federal response planning efforts, it was clear that the effectiveness of the Federal Response Plan was based, to a large degree, on the ability to integrate other hazard-specific plans to eliminated overlap and duplication in Federal response functions. While final closure may have been reached on all of these issues, the draft report ignores the fact that very significant progress has been made incorporating radiological and hazardous materials response activities into the Federal response plan without detracting from their intended purpose or duplicating their [the other plans sponsors] efforts. [A reasoned argument can be made that this merger has not happened as of March 2007 in the National Response Plan, and certainly did not during the life of the Federal response plan. The problem with this failure is that Principal Federal Officials (under the NRP), Federal Coordinating Officials (under the Stafford Act), On Scene Commanders (OSC) (under the NCP or FRERP), or other plans unless tested by vigorous excises don’t know exactly how the various plans will be implemented and this is exactly what occurred in Hurricane Katrina.]

The draft report also ignores the fact that there are, in some instances, valid reasons for retaining some of the established hazard-specific plans already in existence. For example, the Federal Radiological Emergency Response Plan is specifically designed to determine the management of on-site response activities in the event of an emergency event involving radiological materials, e.g., a nuclear power plant. The primary intent of the Federal Radiological Emergency Response Plan is to bring into focus the expertise and capabilities of the various Federal agencies with specific radiological responsibilities, such as the Nuclear Regulatory Commission, the Department of Energy, the Department of Defense (including the Defense Nuclear Agency and the respective military services), the Environmental Protection Agency, etc. It is important to note, however, that this plan is directly related to the management of the specific radiological incident itself – it was never designed to cope with this type of a disaster under the authorities of the Stafford Act or a Presidential disaster declaration. These activities are addressed by the Federal Response Plan and include such functions as evacuation of the population, shelter; feeding, medical assistance, etc. [See editorial comment on this issue in the annotations on the NAPA legal annex and below]

To the extent that there are duplications or overlaps in these two plans, both FEMA and the Nuclear Regulatory Commission have been working closely over the past two years to integrate the plans in order to provide for effective on-and off-site response operations. For example, at the present time, FEMA is heavily involved in the development of Federal Field Exercise (FFE-3) with the Nuclear Regulatory Commission. [This exercise scheduled for April 1993 was never held] All activities are closely coordinated with the Federal Radiological Policy [Preparedness] Coordinating Committee (FRPCC) [See 44 CFR Part 351] and, with response to the Federal Response Plan, the FRPCC’s Federal Response Subcommittee. In November 1991, members of the FRPCC were provided with copies of the draft Federal Radiological Emergency Response Plan annex of the Federal Response Plan. Comments were received and incorporated and resulted in the Federal Response Subcommittee meeting and agreeing on how best to proceed to meet the mutual objective of structuring a single plan for Federal response to any disaster or emergency.
[It might be noted for the record that the FFE-3 exercise was cancelled. FFE stands for Full Field Exercise and was done in 1982 at the St. Lucie Nuclear Power Station in Florida in 1982 and the Zion Nuclear Power Station in Illinois in 1986. The concept of a full field exercise is to actually test the plan, the training, the leadership and the logistics and equipment. As of March 2007 the Zion Exercise was the last Full Field Exercise of the FRERP the plan mandated by President Jimmy Carter in E.O. 12241 and not since amended or revoked. The plan mandated by that order is an off-site plan despite the discussion above and the joint NRC-FEMA document NUREG 0654/FEMA REP-1 is premised on there being periodic exercises to verify response capability for off-site release of radiological material. The 10 mile EPZ (Emergency Planning Zone) and the 50 (Plume Exposure Pathway) is based on EPA and FDA PAGs (Protective Action Guidance) that are designed to protect the public and the food chain from an assumed release of radioactive iodine in the form of depositional material or airborne particles.]

The Nuclear Regulatory Agency has already prepared an analysis of the two plans by separating the radiological and non-radiological aspects of the two plans to delineate between the technically oriented radiological requirements and the non-radiological support functions. Based on this analysis, it was clear that, while the structure of FEMA’s response under the Federal Response Plan and the Federal Radiological Emergency Response Plan are the same, the structure does not need to be reiterated in both plans. It was further realized that simple subsuming the Federal Radiological Emergency Response Plan into the Federal Response Plan would not solve problems either. Work is underway at this time on clarifying the best means of interfacing responsibilities between the two plans to ensure maximum efficiency and utilization.

[Apparently prior to the issuance of the NRP in April 2005 the reconciliation had not yet occurred and the NRP is still not totally reconciled with the FRERP]

While similar activities have been underway with the Environmental Protection Agency, we have not yet reached the same point of progress. Nevertheless, in the numerous meetings that have been held between FEMA National Response Team representatives [the NRT here is referring to the NRT under E.O. 12560 and implementing regulations at 40 CFR Part 300. This has nothing to do with the National Response Plan adopted in April 2005] Federal response planning personnel are normally invited to the regular NRT meetings), there has been clear recognition of the fact that functions must be better integrated. Members of the National Response Team activities routinely participate in exercises and meetings conducted under the Federal Response Team and are generally familiar with the procedures. Again, while activities may not be quite as far along as they are in the radiological area, we believe that significant progress is still being made with regard to hazardous materials response activities.

[From late 1996 until retirement in October 1999, the editor attended most of the monthly meeting and can attest to the need for better integration. The problem was not FEMA but the fact that under the FRERP and the NCP the technical agencies were the lead agency for their regulated or own facilities and operations and did not want any implied jurisdiction over their facilities and operations to exist in another technically qualified agency. None of the technical agencies have budget execution authority for mass evacuation, mass shelter, mass care, or mass medical, as does FEMA when operating pursuant to the Stafford Act. As of October 1999, and the editor believes as of March 2007 duplications and overlaps in the technical agencies still exist. By technical agency the editor means those agencies and their personnel charged by law with (1) monitoring for contamination; (2) decontamination of the public and the public’s property;(3) issuance of PARs (Protective Action Recommendations to the public and the State and local government officials; (4) securing access to contaminated areas; (5) controlling access and egress from those areas; and (6) making re-entry decisions. FEMA never had the personnel, logistics, equipment or skills for these activities and has never sought authorization for funding from Congress. The problem of course is the technical agencies often lack response funding, especially in the last quarter of the Federal Fiscal Year.]

With regard to national security considerations, there have also been significant ongoing discussions with the National Preparedness Directorate on the integration of national security plans and the Federal Response Plan. In his January 24, 1991, memorandum to all FEMA employees, included as an attachment to your draft report, the Director specifically stated that (with respect to Operation Desert Storm):

To ensure FEMA’s capability to support the full scope of emergency response and best support the State and local response plans that we helped develop, I have determined that the Federal Response Plan (for Public Law 93-288, as amended) will be used if needed. We use all or parts of this plan on a regular basis and it is the process with which States are most familiar. The State and Local Programs and Support [Directorate] and National Preparedness directorates are cooperating in fine-tuning this capability, and I am pleased with their progress. (Emphasis not in original)

[Because of the significance of the Stickney memorandum cited above, and the importance of the historical context at the time of issuance, the full text of the memorandum and a short article previously published is attached as an appendix to this annotated document]

Has resolution been reached on all of these issues? No. But your draft report ignores many of the critical decisions that have been reached during the past 18 months with regard to national security response operations. These include, but are not limited to:

 Delegation of primary responsibility for Emergency Support Team (EST) and Emergency Response Team (ERT) functions from NP [National Preparedness Directorate] to SL [State and Local Programs and Support Directorate] l.
 Discussion on ways to better integrate the interaction between the Regional Emergency Management Teams and the EST/ERT functions while continuing to adhere to external policy constraints on some of these functions.
 Improving assimilation of the Civil Defense-and Federal Preparedness funded communications assets for expanded use in both national security and domestic emergencies. [It should be noted that E.O. 12472 (1984) authorized a single communication system and this order was enhanced by the publication of regulations at 47 CFR Part 201-212 implementing a single communication strategy for domestic emergencies and national security emergencies (a term used in both the Executive order and the regulations)]
 Utilization of NP-managed communications personnel, equipment and facilities in Federal Response Plan exercises (including Response 91-A and Response 91-B) and emergency response operations, including Hurricane Andrew.
 Use of NP-developed damage assessment models in both Federal Response Plan exercises and emergency response operations, including Hurricane Andrew.

In summary, the draft inspection report flatly ignores the many efforts underway or even completed in incorporating other hazard-specific plans into the Federal Response Plan and should be corrected to highlight the actions taken instead of portraying them as inaction.

These reports also found that better command and control relationships should be established between: (1) FEMA Headquarters and FEMA Regions; (2) FEMA and other Federal agencies and (3) FEMA and the White House.

(1) We do not dispute the report’s recommendation that there could be improved command and control relationships between FEMA headquarters and FEMA regions; however, if your draft report is going to raise this as an issue, then it is important that the issue itself be presented in a more effective manner. To state that better “command and control relationships should be established between . . . FEMA Headquarters and the FEMA Regions . . .” implies that it is simply based on a lack of effective communication. In reality, the relationship between FEMA Headquarters and Regions was one of the knottiest problems dealt with by the President’s Reorganization Project (PRP) during the deliberations on the creation of FEMA in 1978/1979.
[The Reorganization Plan was submitted to Congress in May 1978 and implemented in April 1979. More importantly, the existing relationships between the Headquarters and Regions are directly related to decisions made at the outset by the PRP regarding these roles. This editor argues that the Headquarters/Regional friction involved two issues only: (1) What was the Regional input on policy formulation and implementation; and (2) How did the Regions relate to actual operations by FCO’s and Disaster Field operational units during disasters. There is no doubt that friction existed and since Regional Directors were Presidentially Appointed Non-career SES this added to the friction. The only Director that had authority to approve or reject a potential Regional Director was FEMA Director James L. Witt. None of the others had authority to hire a Regional Director although the White House Personnel Office did let most of the Directors fire Regional Directors. By the editor’s count 26 out of 65 appointed Regional Directors were terminated for cause other change of administration.]

In an August 10, 1979, report to John W. Macy, Jr., then Director of FEMA, on the Reporting Relationships between the Associate Directors and the Regional Directors, it was noted that the primary issues still involved:

(1) Should the programs of FEMA be operated in a centralized or a decentralized manner, or perhaps a combination of both?; and
(2) Should the Regional Directors have a strong degree of delegated program authority for program implementation in the field, or should there be a “counterpart” relationship between the Associate Directors and the Regional Directors, or an amalgamation of the two? [In 1983-84 the Office of Personnel Management conducted an audit of FEMA Regional positions other than the Regional Director’s themselves (this was a statutory position). The published (in the Federal Register) and unpublished delegations (not in the Federal Register) were so inaccurate that a massive downgrading and Reduction-In-Force occurred in all 10 FEMA Regions. This action poisoned Headquarters and Regional relations for a decade.]

It is interesting to note some of the issues that the report raised as potential problem areas, issues that are now directly relevant to the issue of “command and control” between the headquarters and the regions:

Conceivably, the Associate Director could ask that certain staff members from a particular Regional Office be assigned to a disaster area and be refused on the grounds that they are involved in performing other priorities established by the Regional Director. This situation could result in significant delays in response time and have an adverse impact on the President’s Disaster Relief Program, as well as generating unfavorable publicity for FEMA. (Difficulties of this type occurred in Hurricane Hugo response operations.)
However, while the Associate Directors have the responsibility to provide policy and program guidance to the Regional Directors, they do not currently have the authority to make staff assignments and allocations of priorities to the Regional staff since it is the responsibility of the Regional Directors . . .

These are issues that the Associate Directors and Regional Directors must cope with on a regular basis, but the draft inspection report makes no mention of the historical background or policy decisions governing the issue of headquarters/regions command and control. We need to be very careful in a report such as this not to make statements that can have far wider implications than may be intended. [No record exists of the OIG draft Inspection Report being provided to the FEMA Regions for comment prior to issuance]

(2) To state that better command and control relationships should be established between FEMA and other Federal agencies and the White House raises two fundamental questions. First, what specific problems have been encountered that led to this conclusion? And second, has any consideration been given to the existing structures that work effectively?
While the report states that the “. . .OIG concludes that these relationships are essential to FEMA’s mission and as prescribed by Executive Orders 12148, 12656 and the Stafford Act . . .”, there is an implication that these functions are not already being performed or, if they are being performed, that there are specific problems that need to be remedied. Whether we are discussing day-to-day or emergency response operations, FEMA has extensive linkages with other Federal agencies and the White House at all levels through wide varieties of forums, including interagency policy groups, interagency coordinating committees, the National Security Council [staff], the Office of Management and Budget, and the Cabinet Affairs Office on virtually daily basis, etc. The response operations relating to Hurricane Andrew have demonstrated the efficacy of many of these systems, including the Catastrophic Disaster Response Group. This is yet another example of a conclusion based on presumption rather than specifics.

[The CDRG was designed as a policy resolution group composed on inter-agency representatives at the Assistant Secretary level. The concept was that policy issues on domestic crisis response would be hashed out and if not resolvable at that level sent to the White House for resolution. This process effectively ended under the Clinton administration and a lower level group the ESFLG (Emergency Support Function Leaders Group) approved by the CDRG on February 23, 1995. See FRPG 02-95 (September 1995)Typically, after demise of the CDRG issues needing White House resolution were handled directly by the Director FEMA or his Chief-of-Staff. Notes and records of the CDRG and notes were taken have been destroyed by the records management personnel in FEMA]

Page 2 – First Full Paragraph

As our research evolved, information fell within two general categories: (1) Response Planning for both domestic and national security events: and (2) The Federal Response Plan, which at this point in the plan’s evolution primarily focuses on natural disasters.

We must take strong exception to item (2) of this statement. The Federal Response Plan has, since January 1991, been an all-hazards plan that addresses the full range of emergencies, including natural, technological and national security emergencies. As stated on Page 1 of the Federal Response Plan itself:

The Federal Response Plan (for Public Law 93-288, as amended . . . is designed to address the consequences of any disaster or emergency situation in which there is a need for Federal response assistance under the authorities of the Stafford Act. It is applicable to natural disasters such as earthquakes, hurricanes, typhoons, tornadoes and volcanic eruptions; technological emergencies involving radiological or hazardous material releases; and other incidents requiring Federal assistance under the Act.
[The Plan was actually signed and issued in May 1992, although as the Stickney memorandum appended to this paper indicates the Plan for Catastrophic Natural Disasters was essentially renamed the Federal Response Plan by the issuance of that memorandum]

The use of the term “other incidents’ is clearly intended to include such emergencies as might be expected to result from national security events – and, in fact, as noted above, the Federal Response Plan was used by the Director specifically for activities related to Operation Desert Storm. Nor would it be logical to exclude national security emergencies from a Federal Response Plan that is specifically designed to respond to all-hazards.

It should also be noted that the development, management and implementation of the Federal Response Plan are [sic] located in the Office of Emergency Management [a unit reporting to the Associate Director SLPS] that manages the civil defense program. This was the direct result of the reorganization of SL [the State and Local Programs Support Directorate] in 1990 and recognized that the civil defense program, though originally national security oriented, provided the sole base infrastructure of emergency management personnel, systems, facilities, equipment and training and training at the State and local levels for the implementation of Federal response activities. In addition, there is a direct legislative mandate contained in the civil defense program that relates directly to the Federal Response Plan as noted below:

Page 2 of the Federal Response Plan states that:
Response assistance includes those actions and activities which support State and local government efforts to save lives, protect public health and safety, and protect property.

This language is directly consistent with the language contained in Section 2 of the Federal Civil Defense Act of 1950, as amended [Public Law 81-920] that states:

It is the sense of Congress that the defense of the United States can best be accomplished by enacting into law the measures set forth in this Act. It is the policy and intent of Congress to provide a system of civil defense for the protection of life and property in the United States from attack and from natural disasters. (Emphasis not in original)

And by Section 3 (C) of the Act that states:

The term “civil defense” means all those activities and measures designed or undertaken (1) to minimize the effects upon the civilian population caused or which would be caused by an attack upon the United States or by a natural disaster, (2) to deal with the immediate emergency conditions which would be created by any such attack or natural disaster, and (3) to effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by any such attack or natural disaster.

The Federal Response Plan recognizes that there are national security considerations that might require other authorities or response mechanisms as noted in the following section:

5. In some instances, a disaster or emergency may result in a situation which affects the national security of the United States. For those instances, appropriate national security authorities and procedures will be utilized to address the national security requirements of the situation.

This does not preclude use of the Plan, but only recognizes that other authorities may be necessary to meet national security requirements.

Given the fact that it is absolutely incorrect to state that the Federal Response Plan focuses primarily on natural disasters, to state that the “findings section of this report has been organized around this split” raises serious questions about the basic approach of the draft inspection report itself.

[Perhaps it should be noted here that the OIG draft Inspection Report was prepared by the former Chief of Staff of FEMA William C. Tidball, who was detailed after being in that position for several years under Director Julius Becton. Mr. Tidball served in several different positions after serving as Chief of Staff, including Acting Regional Director, FEMA Region II, and in the position of Assistant Inspector General, Office of Inspections. His principal assistant was Ms. Deborah Hart, who had risen through the ranks in the disaster assistance program and held a number of policy-making jobs before transferring to the OIG Office of Inspections. She retired from that position. Mr. Tidball had been the so-called fireman of FEMA since its inception and had run several FEMA regions in addition to Region II as Acting Regional Director sometimes for years. The draft Inspection report was prepared in large measure in response to Hurricane Hugo and the Loma Prieta earthquake both of which occurred in 1989, after the resignation by Julius Becton.

Mr. Tidball and Ms. Hart were viewed by the career staff in FEMA as two of the most outstanding career civil servants in FEMA. It is also true that after the events of August 1992 concerning response issues arising between landfall of Hurricane Andrew and the issuance of the Inspection Report, the OIG FEMA was under enormous pressure from Congress to issue a report requested long before by Congress in response to the 1989 events. Of course, a flood of post-Andrew reports were issued many documenting similar problems to those experienced during Hurricane Katrina. Mr. Tidball was Acting Director of FEMA between January 20, 1993 and the confirmation of Director James L. Witt in April. For a brief period of time under Director Witt, Mr. Tidball was again Chief of Staff before being assigned to sort out another region, FEMA Region Ii. He retired from that position after running the region for 18 months.]

Page 2 – Section III

The first paragraph of this section is seriously misleading and ignores some basic facts that have surrounded emergency management activities from their inception in 1950. To state that, “Throughout the agency’s history, management teams have struggled to develop a framework for transforming the “peacetime” FEMA organization into one with all assets integrated and capable of effectively responding to all types of emergency events ignores some fundamental issues that must be taken into consideration, as noted below:

There is no question that the integration of “peacetime” and national security functions has been troublesome for this Agency or that “dual-use” application of many of the systems has been standard policy for some time. FEMA and its predecessor agencies have constantly had to walk the tightrope between domestic and national security emergency management considerations and the vocal opposition of its primary constituent groups (State and local governments) to attack planning or preparedness. The decision was not FEMA’s alone – despite the implication contained in the draft inspection report that we just could not seem to get the right mix to develop an appropriate “framework.”

There are some major considerations that are neither addressed nor referenced in this section that have had a significant on FEMA’s policy making
In these areas since its inception (and even before). These include, but are not limited, to the following:

 There must be a clear and precise distinction made here that recognizes the fact that by far the largest portion of FEMA’s emergency management programs (Civil Defense and Federal Preparedness) were originally rooted in national security considerations predicated on the fear of a nuclear attack by the former Soviet Union.

 The national security orientation of some of these programs often precluded adapting assets to “peacetime” functions, a requirement over which FEMA had little or no control.

[It should be noted that the editor has closely examined legal authorities and classified and unclassified directives and believes that there was never a legal or policy impediment to utilizing national security assets in large-scale domestic emergencies. The NAPA (National Academy of Public Administration) did conclude there were barriers but failed to document them. It is the editor of this documents opinion that it was largely bureaucratic rivalry, failed FEMA leadership, and Congressional dominance of policy over FEMA that resulted in the barriers. This is a fertile research topic for the future. In the editors opinion it was only when Mr. Tidball became Chief of Staff, and strongly supported by General Becton as Director of FEMA, that cooperation between elements of FEMA really started to occur. General Becton’s tenure was terminated when President George H.W. Bush was elected and named a former Governor of New Hampshire to the position of White House Chief of Staff. The issues between the Director and the Governor are documented in the administrative proceedings of the Nuclear Regulatory Commission concerning the licensing of the Seabrook Nuclear Power Station in New Hampshire]
 There were unwritten hierarchies of importance in emergency management functions relating to Federal, State, and local preparedness that were frequently viewed by FEMA and external sources as ‘mutually exclusive,” i.e., the roles of Federal Preparedness and Disaster Relief were similar but of disproportionate scale. [The editor assumes the authors are referring to funding and staff but if staffing patterns are examined closely and disaster outlays included, just as COG (Continuity of Government) funding should be included as part of Civil Defense and Federal Preparedness, there is no substantial difference in scale. If something else is referred to by the authors, the editor can only assume it refers to national survival vis-à-vis protection of persons and property unconnected to national survival. Thus, the statement is latently ambiguous and probably patently ambiguous but the presence in the memorandum does have significance merely for its presence.]
 Despite the consolidation of emergency management programs into FEMA, the fact remains that the agency reported to 28 Congressional committees [or subcommittees] and operated under a wide range of legislative and executive authorities, in an of itself a barrier to “integrating” programs.
 Many of the present changes in direction and focus are occurring quite simply because of the dramatic changes in the reduction of the threat facing the United States with the collapse of the former Soviet Union – it is unlikely that the Administration or Congress would have authorized the current redirections if the threat had remained constant.

A reader of this report who is not familiar with many of these factors could, by virtue of the way in which the report is written, conclude that we just missed the “magic” combination. That is an inaccurate representation of what has been a very complex policy problem for FEMA and its predecessors for over 40 years as evidenced by the countless reorganizations, joining and separating the various programs.

Page 3 – First Full Paragraph

The discussion of the Integrated Emergency Management System (IEMS), developed in 1982, and the establishment of the Emergency Operations Directorate is not an accurate reflection of many of the activities during that period.

The IEMS concept was not the first, but actually one of many different approaches developed over the years to address the consolidation of mitigation, planning and response activities – in many respects, it was a more formalized representation of the long-standing principle of “dual-use” contained in the civil defense program.

Comments regarding the draft report’s discussion of the National System for Emergency Coordination [NSEC] on pages 4-6 of the draft report are contained in Section IV. Findings by this memorandum.

Page 6 – Section IV

Since the draft findings do not reflect all of the issues raised by the draft report, the following responses are structured to address both the discussions and recommendations.

A. FEDERAL RESPONSE PLANNING FOR DOMESTIC AND NATIONAL SECURITY EMERGENCIES

1. The National System for Emergency Coordination (NSEC) should be re-examined.

NP and SL do not object to the proposed recommendation but believe that the Federal Response Plan adequately covers the planning requirements.

The NSEC was promulgated almost four and a half years ago. NP and SL have continually emphasized throughout this response that a great deal has happened since that time, including the geopolitical factors mentioned in the OIG draft report, the Gulf War, and the advent of the Federal Response Plan as FEMA’s preferred intra- and inter-agency emergency management and planning structure.

A fundamental problem with NSEC is that it has no legal status based on either legislation or Executive Order. NSEC was developed late in the previous Administration [January 1988] and was, as noted in the draft report, largely ignored by Federal departments and agencies. [Actually it created a burst of activity in the other federal departments and agencies that were assigned a lead role in domestic crisis response. Only in FEMA was it never delegated or acted upon. That is somewhat strange given that FEMA had developed the document and acted as staff to Ralph Bledsoe, later Archivist of the United States, and head of the Reagan Presidential Library, who at the time of NSEC development and implementation was the Executive Secretary of the Domestic Policy Council]

Part of this is directly related to the fact that the NSEC document published in January 1988 varied considerably from the original proposal. As originally designed and proposed to the White House, NSEC provided a mechanism for generating the capabilities for most emergencies and for clarifying “command” relationships. However, as approved by the White House, NSEC stripped all of the operational detail from the concept and left only the designation of “lead’ agencies for most emergencies. While this was a worthwhile accomplishment, it was accompanied by only very vague and general guidance that raised as many questions as it was supposed to answer. As a result, the NSEC document published in 1988 has always been regarded as having little value to operational planners. For example, while the Purpose of the NSEC is described as “ . . . a mechanism for ensuring that the Federal Government provides timely, effective, and coordinated assistance to States and local governments in extreme catastrophic technological, natural or other domestic disasters of national significance . . ” and it emphasizes the fact that:
(d) The Federal Government’s response to major domestic crises will be consistent with current emergency plans and existing domestic and national security crisis information and management systems will be used.

It is interesting to note that, while the draft inspection report believes that “greater program efficiencies” could be realized by “. . . incorporating hazard-specific plans into the Federal Response Plan,”
The NSEC essentially maintains something of a status quo in this regard. With the exception of a National Coordinator, the NSEC essentially directs Federal departments and agencies to participate in:
Federal interagency functional groups . . . to support and coordinate relief operations in extreme emergencies, consistent with those currently called for in existing emergency plans such as the Plan for Federal Response to a Catastrophic Earthquake . . . (the forerunner of the Federal Response Plan).

Much of the remaining requirements of the NSEC are directly related to current Federal disaster relief activities as managed under the Stafford Act.

NSEC is primarily a statement of principles not linked to a clear response structure. As pointed out in the subject draft report, the Federal Radiological Emergency Response Plan, the National Oil and Hazardous Substance Pollution Contingency Plan, and the Federal Response Plan could have been simultaneously activated by the lead agencies and FEMA if the December 1991 Savannah River event had become a full-scale emergency. However, it should be noted that, based on the ongoing efforts to better integrate the activities of the Federal Radiological Emergency Response Plan and the Federal Response Plan in particular, and the progress that has been made to date, we could have anticipated an improved response capability above and beyond that originally anticipated by NSEC.

We must also take strong exception to the statements that:

. . . NSEC provides formalized linkages between FEMA and the White House in an emergency . . . If abolished, no such formalized process will exist . . . While informal linkages are currently present between the Catastrophic Disaster Response Group, a policy coordination group established in the Federal Response Plan, and the White House, these relationships are unique and largely personality dependent . . .they may be effective for now, but they provide no long term structure or regularized process between FEMA and the White House.

The stated purpose of the Catastrophic Disaster Response Group is to address “. . . response issues and problems which require national-level decisions or policy direction.” While it is chaired by the Associate Director for State and Local Programs and Support, it is simplistic to assume that any problems requiring senior government approval will not be brought immediately to the attention of the Director of FEMA and from there to the appropriate offices of the White House. One of the fundamental reasons for developing the Catastrophic Disaster Response Group was to provide a high-level forum for the resolution of problems that could hinder or otherwise impede the provision of immediate emergency response assistance to State and local governments.

This leads to the next statement in the report that states:

. . . while the Catastrophic Disaster Response Group provides the forum for intergovernmental policy deliberations during an emergency, this group is composed of individuals at the Assistant Secretary level. It does not include department heads or the Director of FEMA, and should not be viewed as a substitute for NSEC.

The membership of the Catastrophic Disaster Response Group consists of individuals appointed by the heads of the respective departments and agencies to represent them. It is not essential for department or agency heads to be participants in this group in order for it to be effective – that is what the Cabinet is designed to accomplish. Furthermore, it is unrealistic to assume that the Director of FEMA, who is not a member of the Cabinet, would chair meetings attended by Cabinet members. [President Clinton made FEMA Director James L. Witt an ex officio member of the Cabinet in 1997]

The membership of the Catastrophic Disaster Response Group represents senior-level policy makers within each department and agency who can, in turn, make immediate recommendations to their leadership for resolution of problems. [The editor notes that physical relationships have become problematic in emergency response and recovery with at last count by the Editor over 28 different department and agency EOC’s (Emergency Operation Centers) exist, with linkages unknown to each other. It appears that DHS has an approximately $65M a year appropriation to build yet another one.] Where consensus cannot be achieved, it is then appropriate for the decision requirement to raise to the White House for resolution, either through the Cabinet or other resources [organizational arrangements?]

The development and coordination of the Federal Response Plan has been a cooperative effort with the 27 Federal departments and agencies who are signatory to the plan; while there may be some merit to incorporating some of the NSEC recommendations, such as the National Coordinator, this should rightfully be worked out with key department and agency representatives and regional representative prior to presentation to the White House or Congress.

[While the Editor has extensive comments and analysis of the narrative above, it suffices for the purposes of this document to state several facts that might not otherwise be obvious. The NSEC was in part a response to aggressive efforts of the National Security Advisor Colin Powell to upgrade domestic emergency response that impacted national security or that implicated national security assets. Obviously, to the extent that the civil agencies and State and local agencies can respond to a large-scale domestic crisis the less need for national security assets to be deployed. At the time the NSEC was issued (and there is no evidence that it was actually reviewed or approved by the President) it had been worked in the Domestic Policy Council and its staff for almost a year. It is true that it does not contain operational guidance but neither does the Federal Response Plan, the Federal Radiological Emergency Response Plan, nor the National Contingency Plan for Oil Spills and Hazardous Materials Releases. Nor does the present NRP. These plans are essentially un-funded interagency Memorandum’s of Understanding and no real assets or funds are dedicated to them full time but heir implementation must rely on contingency arrangements. The same is true of the National Response Plan in that it lacks dedicated funding or personnel or resources or a logistic system. In FEMA’s time as an independent agency OMB specifically precluded this for domestic crisis events. A documentary record of this policy by OMB exists but is not available to the Editor]

A related issue under item 1 is that:

. . . we continue to find incorrect perceptions regarding FEMA’s role in emergencies “outside” traditional Stafford Act coverage, i.e. natural disasters. The Exxon Valdez accident offers the most classic example of this. After this event, FEMA was chided in 1989 Congressional hearings as the “911” of government and for failing to respond aggressively to this event.

There is no question that there are often misperceptions as to the role of FEMA both “within” and ‘’outside” traditional Stafford Act coverage. For example, there are clearly misperceptions as to the role FEMA is currently legally authorized to fulfill in any disaster, regardless of its size or scope – there is a widespread assumption that FEMA can “just move into” a State and take over. In reality, natural disaster relief has historically been viewed as primarily a State responsibility; Federal resources can currently only be authorized when a disaster or emergency is beyond the effective capabilities of the State and local governments and such Federal assistance is requested by the Governor of the affected State. [Note that this was the party line adopted after Hurricane Andrew to explain FEMA’s performance in response and recovery. Congress and GAO were notified that a statutory amendment to the Stafford Act was necessary to change this. No such amendment has been submitted to-date by any administration nor introduced in Congress.]

The specific needs required in response to a catastrophic disaster are often very difficult to define during the first hours and days after impact. While it is easy to ‘second-guess” decision making during this early period, it is clear that certain disasters require immediate infusion of Federal assets. For example, had legislative authority been available to allow for immediate movement of Federal assets into Miami to provide critical life-saving and population protection measures, some of the delays that were encountered could have been avoided. Conversely, a significant change in the current supplementary nature of disaster relief, albeit used in only extreme instances, must not be allowed to substantially change the relationships between the Federal, State and local governments in the area of emergency responsibilities. We must strike an appropriate balance between urgent requirements to save lives and protect property in relationship to the long-standing Constitutional issues that may be involved, as well as the potential budgetary implications.

[To the editor’s knowledge no Constitutional analysis of domestic crisis response exists anywhere in the published literature of the organized bar or legal academic scholarship. Perhaps a subject that should be explored. It suffices to state that there are no Constitutional issues raised in domestic crisis response except with respect to the requirement that the Federal government assist and ensure the re-establishment of the States should they be non-operative as a governmental agency. No example exists in U.S. history of a State government being totally destroyed, although examples do exist of State governmental functions being disrupted. Then, however, the responsibility of the Federal government under the Constitution is to assist in facilitating the re-establishment of State governmental authority. Obviously, this should not be the final word on this subject.]

In further regard to this issue, the draft inspection report fails to appreciate the distinction between the roles, authorities and responsibilities of Federal departments and agencies to carry out direct actions in areas in which Congress has legislated a Federal interest. The Stafford Act quite clearly authorizes the Federal Government to provide supplementary Federal assistance to assist individuals and State and local governments in recovering from the effects of a disaster or emergency. Conversely, in the case of the Exxon Valdez oil spill, the Environmental Protection Agency and the U.S. Coast Guard have specific legislated responsibilities specifically designed for cleaning up the effects of oil or hazardous materials spills.[Actually, the authority is vested in the President who then has delegated his/her authority to certain Federal departments and agencies.] While there were questions on the part of State officials, who initially assumed that the Stafford Act would be the most suitable means of response to the Exxon Valdez disaster, it became readily apparent that the more appropriate assistance was available through the National Contingency Plan [for Oil Spills and Hazardous Materials Releases] We need to exercise caution in ensuring that a misunderstanding of the appropriateness of legislation should not be used as impetus for revising it.

[The editor recommends this discussion above is illuminated by the unpublished NAPA legal annex also available from the editor]

2. Classified and domestic plans and assets should be focused toward a common purpose.

The draft inspection report highlights the degree to which there are, within FEMA itself, some fundamental misunderstandings with regard to how the classified and domestic planning functions are performed and the degree to which they can be unilaterally realigned. It is clear from this recommendation that the OIG does not necessarily recognize the degree to which many of these decisions are beyond the effective control of FEMA or the degree to which progress has been made in some of these efforts.

While FEMA plays a role in national security strategic planning, it is a somewhat minor role in relationship to other departments and agencies. [FEMA played no role in strategic nuclear attack planning after the issuance of NSDD 259 in 1987. See appendix listing Bush/Reagan NSDD’s affecting FEMA] Policy decisions in this area are not made unilaterally by any one agency, but instead are made by various policy coordinating committees in the national security area that issue guidance depending on current requirements. Outside the scope of these bodies, the development of options and proposals affecting other Federal agencies should involve key departments and agencies and be presented to senior FEMA management and representatives from other Federal agencies, as appropriate, prior to presentation to the White House.

Much the same is true with regard to unclassified domestic emergency management planning. Recent history in the civil defense program clearly demonstrates the problem. In December 1981, congress enacted a new Title II for the Civil Defense Act, which included Section 207, entitled “Dual-Use for Attack-Related Civil Defense and Disaster-Related Civil Defense “ as noted below:
Section 207. Funds made available to the States under this Act may be used by the States for the purposes of preparing for, and providing emergency assistance in response to, natural disasters to the extent that the use of such funds for such purposes is consistent with, contributes to, and does not detract from attack-related civil defense. (Emphasis not in original)

While the revision to the legislation incorporated officially the concept of “dual-use” the underscored wording above did not clearly define what “contributed to” or “detracted” from attack-related civil defense. [Public Law 103-160 (1993) that mandated an all-hazards approach for civil defense eliminated this language] In an effort to provide such a definition, FEMA, in 1982 prepared a “finding” that adopted as policy the belief that all activities undertaken in the area of natural or technological disaster preparedness or response contributed to and did not detract from attack-related civil defense. Codified in the Integrated Emergency Management System (IEMS), this policy remained in effect until 1985, when the Senate and House Armed Services Committees expressed serious concern as to the use of civil defense funds by FEMA for what the Committees perceived to be ‘questionable” purposes. In conference Report 99-235, issues were raised concerning:

. . . an apparent lack of focus and direction in the current civil defense program. The situation is manifested in the funding emphasis on State and local civil disaster programs which, while meritorious, is a questionable use of national defense budget resources. . .

This concern was reiterated in 1987 in a hard-hitting report prepared by the General Accounting Office on FEMA’s management practices. As noted in the report:

. . . [civil defense funds] are to be used to prepare for the protection of the civilian population in the event of an enemy attack, and may be used for natural disasters to the extent that the use of such funds for such purposes is consistent with, contributes to, and does not detract from attack-related civil defense. However, FEMA’s internal assessments and our tests of fiscal year 1985 expenditures showed that FEMA’s primary focus for civil defense was to plan for natural and technological disasters.

The report further stated that:

FEMA said that it did not mean its new attention to dual-use, peacetime emergency preparedness to result in a neglect of attack preparedness. However, we found that, in fiscal year 1985, peacetime emergency preparedness efforts appeared to be emphasized over, and perhaps inconsistent with, attack preparedness efforts at all levels – not only at FEMA headquarters and the satellite facility and the National Emergency Training Center, but also at the regional, state, and local levels. . .Most of the civil defense contract awards FEMA made in fiscal year 1985 seem to have limited relevance for attack preparedness.

[Editor’s note-Funds for contracts for the Civil Defense program were largely applied research and amounted to approximately $15M on an annual basis from 1980 to 1994. the amount was often less and never more. Some of the contracts went to support the REPP (Radiological Emergency Preparedness Program) activities, often for dosimetry and calibration activities that the editor would argue were defense related. In fact, FEMA lent the DOD a large number of dosimeters for use in Desert Storm and Desert Shield. Also STU-III telephones that were secure phones. No reimbursement to FEMA was made by DOD for this loaned equipment nor was it returned. Also the Director of FEMA eliminated the dosimetery activity in FEMA in 1995 over the objections of the National Security Council staff. That program is considered by many to be a key ingredient in WMD response preparedness]

As a result of the stated Congressional concerns, FEMA’s policies regarding “dual-use” were altered in 1986/87 to ensure that nuclear attack primacy was re-emphasized in all guidance and that the States adhered to these policies in the performance of their annual requirements under the Comprehensive Cooperative Agreement. FEMA’s position was bolstered with the President’s signing on February 4, 1987, National Security Decision Directive 259. This document, which enunciated Presidential policy for a new and improved civil defense program, specifically stated that:

The States have the primary responsibility for developing their capabilities for peacetime emergencies and share responsibility for attack preparedness. They should support development of civil defense plans, systems, and capabilities for themselves and their political subdivisions. States will assure that where federal civil defense funds and assistance are applied to natural and technological disaster preparedness, such use is consistent with, contributes to, and does not detract from attack preparedness.

[The editor believes the real import of the NSDD was to eliminate for all-time the linkage of the civil defense program to the strategic nuclear attack deterrent posture. The rest of the NSDD largely tracked the FCDA as amended but eliminated some of its strongest language. In other words FEMA might have been better off in overseeing the States expenditures with the language of the statute without the NSDD]

Not three years later, much of the direction of the program changed again with the collapse of the former Soviet Union and the significant reduction in the attack threat. Based on the dramatic geopolitical changes, a policy coordinating committee was established, consisting of representatives of FEMA, the National Security Council [staff], the Office of Management and Budget, the Department of Defense, the Department of Health and Human Services, the Department of Transportation, and the Department of Energy. The results of the policy coordinating committee’s deliberations were presented to Congress by the Administration in March 1992 report entitled, Civil Defense: A report to Congress on National Disaster Preparedness. The recommendations and program improvements contained in the report have resulted in a major restructuring and realignment of civil defense program priorities, including:

1) Acknowledgement that significant changes in the range of threats eliminates the long-standing civil defense emphasis on nuclear attack and recognizes the need for civil defense to address all forms of catastrophic emergencies;

2) Establishment of the civil defense program and organization as the focal point within Federal, State, and local governments for integrated multi-hazard response planning and operations (this enhances the level of Federal attention to the requirements for resources necessary for State and local government planning for and response to the consequences of large-scale disasters) while reaffirming the long-standing principle that State and local governments have the primary responsibility for developing their capabilities for peacetime emergencies while sharing responsibility for national security preparedness.

3) Revision of the scope of the Civil Defense Program to focus on the development of capabilities common to all catastrophic emergencies and those unique to attack;

4) Establishment of the need to identify and develop a base capability from which any essential surge of civil defense capability could be conducted [This reflects the language of NSDD 66 signed in 1992 that replaced NSDD 259]

5) Increases in the emphasis on preparedness to respond to the consequences of all emergencies, regardless of cause.

[Editor’s Note-The report discussed above was not an initiative of the Executive Branch but mandated by the Senate Armed Services Committee in requesting a report on the civil defense activity requirements in light of the collapse of the Soviet Union. The report barely references civil defense and is largely a discussion of disaster authority and programs. None-the-less the report was influential in convincing the House and Senate Armed Services to adopt an all-hazards posture for civil defense made statutory in Public Law 103-160 and set the stage for repeal of the Federal Civil Defense Act of 1950 as amended in November 1994 by Public Law 1030337. Language similar to that in the FCDA were partially adopted and placed in the Robert T. Stafford Act, largely based on substitution of the words “emergency management’ for the words “civil defense.”]

The improved civil defense program more clearly recognizes that the need for the Nation to be able to provide protection for its citizens is not predicated on the cause of the event but rather the management of the consequences of the event (consequence management). [This concept was discussed in the Reorganization Plan and materials submitted it Congress in 1978] The new focus on consequence management underscores that, regardless of the cause of an emergency situation (natural, technological or national security), certain capabilities are necessary to respond to any emergency (e.g., personnel, plans, operating facilities, communications, equipment, training and exercises.)

While these are major undertakings and represent perhaps the most significant changes in the civil defense program in its 42-year history, the OIG report makes absolutely no mention of them. Nor does the draft inspection report address any of the dramatic changes in the Federal Preparedness program which, again as a result of external deliberation, resulted in the significantly expanded use of Federal Preparedness assets in domestic emergencies.

This represents a major omission in the draft inspection report which is made worse by the fact that the recommendation is bases on a loosely organized premise that essentially ignores the extraordinary progress being made in these areas.

The fact remains, however, that FEMA has separate sets of plans and separate personnel rosters for both requirements. In an earlier report (91B) the Inspector General questioned the apparent redundancy of similar arrangements at the regional level. Attention was called to the fact that the regions had an Emergency Response Team (ERT) assigned to domestic emergencies and a Regional Emergency Management Team (REMT) assigned to national security matters.

Previous IG comments on this fact were inserted into a report that dealt with the FRP only, with no factual development. To cite it as though it were a valid finding is inappropriate. This report itself notes elsewhere that the relationship of the two types of Regional teams is being re-examined. As with much of the draft report, the finding is premature and ill considered. The draft report does not establish that the previous situation impairs Federal Response activities. NP and SL are working to unite the teams to cover the similar requirements. The dissimilar requirements, however, will continue to require slightly different team structures and plans. Whether and how these teams can be linked is under review by NP and SL.

An apparent redundancy of plans and personnel at FEMA Headquarters should be examined. This finding is cast against the backdrop of the changing geopolitical environment, the reduced threat, and the associated defense build-down. It is clearly time for FEMA to closely examine its programs and plans, and to combine them when economies can be realized.

Given the extraordinary amount of time and effort that has already been expended by SL and NP in revamping program direction to meet current requirements during the past 18 months, a recommendation such as this can only be characterized as amazing and indicative of the relatively shallow work performed in preparing this report. Based on the following, it is clear that some of the elements of the recommendation demonstrate a clear lack of awareness of some of the significant factors involved in our current operations and long-range planning:

 Civil defense did not benefit greatly from the defense build-up of the 1980’s and need not be treated the same as other defense programs. In real terms civil defense funding has dropped and remained relatively level unlike other defense appropriations. [Note that this discussion excludes funding for COG (Continuity of Government) and COOP (Continuity of Operations) both of which were lumped under civil defense when comparing the Soviet Union’s civil defense budget. Also of interest is that slightly over two years from the date of this memorandum the FCDA was repealed by Public Law 103-337 (November 1994)]
 There has been a 34 percent reduction in civil defense work years since 1980, despite no lessening of the program requirements.
 The nation has never funded a full capability attack preparedness program – to find monetary “peace dividends” from an investment that was never made is not logical.
 The Civil Defense Act is the only legislation under which appropriations are requested that allows Federal assistance in building and maintaining a comprehensive, integrated emergency management system for the National at the Federal, State and local levels – significant reductions in this program result in major reductions of emergency management capability at all levels of government.
 We have obtained concurrence in the proposed transfer of 34 FTE from the Federal Preparedness program to the Civil Defense program in order to reflect current, realigned priorities. [After the formation of the SLPS Directorate (SL was the Office Symbol) in the fall of 1981 this were the only positions funded in Federal Preparedness from civil defense monies. The position were largely communication positions in various FEMA facilities and the dosimeter program.]
 We conducted a review of recent funding levels in relationship to Facility Survey program requirements and found that the program could no longer be accomplished efficiently or effectively as a result of recent low levels of funding. [This program surveyed structures for utility as fallout shelters from a strategic nuclear attack and also funded many young engineers summer employment from 1951 until its termination survey shelters for population protection purposes. The civil defense signs still seen in basements of old structures were part of the survey process. At one time food, water, and dosimeters were maintained in certain of these shelters. That program ended in the early 1970s]
 The Mobile Emergency Response Support (MERS) units have played a major role in providing communications, and food distribution support in Florida and Louisiana in the aftermath of Hurricane Andrew and, in addition, have been used in recent Federal Response Plan exercises.
 Roughly 40 percent of the staff of NP [the National Preparedness Directorate] was directly engaged in emergency response operations at the headquarters, regional offices and Florida and Louisiana following Hurricane Andrew.
 Extensive use has been made during Hurricane Andrew response operations of the NP damage assessment modeling capability and emergency communications systems (such as the National Emergency Coordination Center).

 In its Report to accompany S. 3114, National Defense Authorization Act for Fiscal Year 1993, The Senate Committee on Armed Services stated that:

In a March 1992 report [Civil Defense: A Report to Congress on National Disaster Preparedness,] the Administration stated that the civil defense program will henceforth be guided by a policy of providing an infrastructure (of communications capabilities, facilities, personnel, and training) to enable the Federal government and State and local governments to respond to the consequences of any domestic emergency or disaster . . .The report also stated that the Administration has initiated a comprehensive review of the resources required to implement this changed policy and of the pros and cons of shared funding for the civil defense program between the national defense and domestic discretionary categories . . .The committee is pleased that the administration has responded positively to congressional direction. . .Finally, because the civil defense infrastructure provides a core capability to respond to any emergency, whether defense-related or not, there is no logical basis for assigning budget shares to national security, on the one hand, and domestic programs on the other. [This statement is alludes to the Graham-Rudman budget allocation requirements established originally in 1989. Civil defense grants to the State and local governments at one time had been coded in the 050 Defense account as opposed to the 045 State and local accounts.]

By any reasonable standard, this is a remarkable example of both response to external events and Congressional approval for longer-term program direction. [Editor’s note-During the period from 1980 to 1994, very little substantive oversight of the Federal Civil Defense Program was conducted by the Senate Armed Services Committee. Their interest in civil defense policy and issues and funding had long since disappeared by the time FEMA was created. The COG and COOP budgeting had been separate from the civil defense budget since before FEMA’s existence as an independent agency. These functions were in the former Federal Preparedness Agency, part of GSA (the General Services Administration). It is hard to believe that the approximately $200M spent annually on civil defense was a burden on the defense budget category 050. It did of course heavily burden the DOD to come up with a witness each year to testify on the civil defense program because of the DOD-FEMA linkage in E.O 12148]

The fact that none of these items is even referenced in the draft inspection report is more than surprising and is one of our most significant concerns about the validity of the report itself.

3. FEMA should review and adjust its programs and organization to better serve changing public requirements and ensure more effective use of public resources.

Example 1: One of the fundamental difficulties in coming to resolution on the issue of the FEMA Emergency Coordinator [a requirement of E.O. 12656 signed in November 1988] was defining who, other than the Director of FEMA, had authority to commit FEMA resources in accordance with stated requirements. While it is true that the function has never been effectively coordinated, the existence of FEMA-wide response functions such as the Federal Response Plan rendered the issue moot.

Example 2: It is interesting that the draft inspection report cites a December 5, 1991, SL memorandum and a February 14, 1992, NP memorandum on the issue of the Emergency Support Team and the Emergency Response Team as an example of “territorial divisiveness between the two Directorates” and “inability to reach consensus on Emergency Support Team responsibilities.” In point of fact, precisely the opposite occurred – the memoranda served as a point of departure for the eventual decision to assign full responsibility and authority for the Emergency Support Team to SL. We find it interesting that working memoranda designed to eliminate problems are cited as an example of “territorial divisiveness.”

The FEMA Director should develop organizational alternatives to reduce the fractures between the National Preparedness and State and Local Program Support Directorates. In conjunction with this, management should inventory legislative and executive assignments made to FEMA, and work with OMB to drop programs either unfounded or incongruent with FEMA’s mission. Budget corrections should be requested as appropriate. The organization and functions manual should then be revised.

[Editor’s note-A project under Director Julius Becton (served from November 1985-June 1989) had been conducted to determine if any of FEMA’s programs, functions or activities had not been authorized by Congress. The result was that certain fire program and HAZMAT activities were questioned, as well as FEMA’s NATO role. These were essentially rejustified with clearer legal authority.]

As part of the 1994 budget issues process [preparation of the Fiscal Year 1994 budget for the period October 1, 1993 to September 30, 1994] SL made recommendations to the Director for a realignment of functions, to be accomplished as a result of joint NP/SL deliberations, to ensure appropriate placement of resources in light of current priorities. The Director has approved the recommendations contained in the budget issue process and work has been initiated on further realignment of functions: however, because of the priority operations in response to Hurricane Andrew, any further action on this process has been deferred until such time as senior staff can be made available. [Nothing further was done on this during the remaining time until January 20, 1993 when President Clinton was sworn in to office. During the spring of 1993, the NAPA report “Coping With Catastrophe” (March 1993) appeared and a number of legislative initiatives were considered. A major reorganization of the agency along functional lines occurred under Director James L. Witt in November 1993. That agency structure essentially lasted until June 2001]

Both NP and SL have been undertaking reviews of the Civil Defense and Federal Preparedness programs in response to the changing geopolitical
Situation and have made recommendations for realignments, including enhancement of the planning, exercising and response functions of SL and adjustment of Federal Preparedness activities. The 1994 budget request reflects the results of these actions. [Typically the budget request for a Fiscal Year was submitted by FEMA in September with a pass-back from OMB over the Thanksgiving Holiday or certainly no later than the Christmas holiday. Then the final budget request to Congress would be submitted with the State of the Union Address in late January]

Again, these are items that should have been incorporated in the draft inspection report as examples of progress being made in accomplishing exactly what the report is recommending.

B. The Federal Response Plan

1. FEMA’s role in non-declared disasters should be clarified.

The Associate Director SLPS should seek clarification on this issue through the General Counsel. Should OGC conclude that funds can only be made available for response actions when the President has declared a Major Disaster or Emergency, legislative changes will be necessary to provide this much needed flexibility. Conversely, if this authority is not present or granted, FEMA should scale back response commitments.

We believe that, unless FEMA activities can be tied to a Presidential major disaster or emergency declaration, the response activity cannot be funded from the Stafford Act authorities for disaster specific missions. Without a Presidential declaration, FEMA support activities could possibly be performed on a reimbursable basis, with funding provided from the cognizant response authority, such as Superfund under National Contingency Plan activation.

We agree that the FEMA management and coordination roles in any disaster need to be clearly articulated, both within FEMA and within the Federal community. This is particularly important in view of FEMA’s role as either lead or support agency depending on the circumstances of the emergency. For example, FEMA is the lead agency for Stafford Act responsibilities. It plays both a lead agency role as coordinator and a support role as one of the many Federal agencies with identified responsibilities under the Federal Response Plan. FEMA also plays a support role in Federal Radiological Emergency Response Plan and National Contingency Plan activities. That FEMA has a role in these plans is clear: however, the issue regarding the source of funding for FEMA’s activities is a valid concern and needs clarification.

2. Confusion exists over when to invoke the Stafford Act.

FEMA’s response authorities need clarification. The FEMA response posture should not be examined each time an emergency event occurs. If the existing Stafford legislation contains such barriers, FEMA should seek legislative changes to remove them.

This is a relatively sweeping statement on the issue of when to invoke the Stafford Act. For the vast majority of disasters, we do not have to seek the advice of the General Counsel to determine applicability of the Act – the parameters are fairly clear-cut. [Actually all disaster and emergency declaration packages are signed off by the Office of General Counsel before transmittal to the White House. The packages are also typically signed off by the Office of the White House Counsel]

However, it is not unreasonable to expect that certain emergency situations may, in fact, be of such a nature that there are questions as to the applicability of the Stafford Act. Unusual situations such as the Chicago floods or the Los Angeles riots did, in fact, involve consultation with the General Counsel, an action that we consider prudent and effective management in such instances. We do not believe that consultation equates to confusion, nor do we consider questions concerning applicability of the Act to be unusual. [The Los Angeles Riots in June 1992 were declared on the basis of fire, not riot or civil disorder. No Major Disaster or Emergency Declaration has ever been made for riot or civil disorder based on policy recommendations made during the administration of President Lyndon B. Johnson by the Department of Justice]

Technically, the Stafford Act can be invoked only after a Governor has made a request to the President for a major disaster or emergency declaration and the President, based on a recommendation from FEMA, makes the declaration. The statement that, in an emergency the President must first invoke other Federal authorities available to him to meet the crisis, somewhat oversimplifies the logic of the decision making process that the President utilizes in deciding whether to declare a major disaster or emergency. [For a more accurate discussion of this issue see the NAPA legal annex]

In response to an emergency situation, one of FEMA’s most significant roles is help identify the requirements for Federal assistance, including what authorities might apply. The Governor may request a Presidential declaration or he/she may also request certain types of assistance, such as the Small Business Administration loan program or agricultural assistance, without a request for a Presidential declaration. [The Administrator of the Small Business Administration and the Secretary of Agriculture have independent declaration authority but must declare if there is a Presidential declaration affecting the same geographic area]

If the Governor chooses to request a Presidential major disaster or emergency declaration, FEMA processes the Governor’s request and recommends a course of action to the President as to whether adequate resources are available under other Federal agency statutory authorities, or if the situation is of such severity and magnitude as to warrant a Presidential declaration to trigger Stafford Act assistance. The President always has the option of declaring a major disaster or emergency for whatever purpose he chooses [presumably within the authority of the Stafford Act] but he does rely on FEMA to advise him about the nature of the emergency and what Federal authorities are available to deal with it.

We believe FEMA’s role should be to coordinate the overall response to emergencies to ensure that problems are being addressed by the Federal government. Once a requirement is identified, FEMA needs to ensure that the affected State is aware of the options for various types of Federal assistance and is being provided the Federal resources it needs to cope with the situation. There is a difference in coordinating the response, managing the response activities, and providing the funding.

We believe that FEMA’s position should be that the Department or agency with the requisite technical expertise is the best one to manage the response missions by providing specific technical or specialized assistance needed to mitigate the emergency. FEMA, on the other hand, best serves as the broker for the State in coordinating with the appropriate agencies to provide necessary assistance. Whether or not the Federal agency authorities that provide technical assistance or direct Federal intervention in emergency response also carry alternate funding, these other agencies are responsible for fulfilling these authorities and responsibilities with their own resources or obtaining supplemental funding from Congress as appropriate. If Federal authorities and responsibilities of other agencies are inadequate to respond to extraordinary State and local disaster related requirement, the Stafford Act, with a declaration by the President, can provide reimbursement to an agency to cover its missions as assigned by FEMA. This is the logic applied to the Emergency Support Functions [ESFs] under the Federal Response Plan. It is, however, critical to understand and maintain the distinction between various direct Federal emergency response authorities to respond to requests for assistance from State and local governments in areas that are generally State and local responsibilities.

2. Intergovernmental Headquarters and Regional Command and Control Linkages Should be examined.

A system and process should be established that would permit a clear understanding by the President and others of the need for coordination when quick deployment of federal plans and assets is required. NSEC is one alternative among others to consider as a possible solution.

As previously stated, NSEC is not viewed as an effective alternative since it is primarily a statement of principles not linked to a clear response structure. [At the time the NSEC was issued (January 1988) no civil agency domestic crisis response structure existed involving the White House] We believe that this recommendation demonstrates a profound lack of knowledge or understanding of the Federal Response Plan and the close linkages between headquarters and regional command and control systems that are emphasized throughout. For example:

 Based upon the magnitude of an event and the initial damage reports, the Regional Director immediately activates the Regional Operations Center (ROC) to establish a direct link to the affected State for the coordination of initial Federal response operations and support of the deployment of the Advanced Element of the Emergency Response Team (ERT-A). The ROC also serves as the primary communications link to the headquarters to ensure rapid dissemination of information required to be distributed. As the focal point connecting Federal/State and headquarters/regional command and control operations, the ROC is a pivotal element of the FRP and the primary linkage.

 The main portion of the ERT-A deploys directly to the affected State’s Emergency Operations Center (EOC) or other facility designated by State officials while the remainder deploys to the disaster site to establish a Disaster Field Office.

 At the EOC, the ERT_A works with the State to obtain information regarding the extent of the damage and to identify specific requirements for assistance.

 At the disaster site, the ERT-A conducts on-scene damage assessments and provides reports to the ERT_A element at the State EOC. This team also identifies a location for a Disaster Field Office and one or more Mobilization Centers and initiates actions to make these facilities operational.

 As State officials identify the extent of the damage and the types of Federal response assistance required by the State, i.e., urban search and rescue, medical support, mass care, specific Emergency Support Functions are activated to conduct response operations.

 Once the Disaster Field Office (DFO) is operational, the Federal Coordinating Officer moves the operations response functions from the Regional Operations Center and the State Emergency Operations Center to the Disaster Field Office. The majority of the staff at the Regional Operations Center redeploys to the DFO.

While some element of the system may not work as well as others, particularly depending on the circumstances of the disaster, availability of communications, etc., the structure is in place to provide strong headquarters and regional command and control linkages. Given the fact that the Federal
Response Plan provides for flexible implementation of any or all elements in or to meet the requirements of the emergency response operation, this is a particularly workable system and has proven effective both in exercises and real-world response operations.

In addition, FEMA maintains command and control through coordinated mission assignments to other Federal agencies for implementation of their response and recovery authorities. Of necessity, FEMA must rely on other Federal agencies to provide the appropriate materials (Meals Ready-to-Eat, generators, plastic sheeting, etc.) since we have never received adequate funding or resources for such a function. [After Hurricane Andrew FEMA started procurement of all these items for deployment to threatened areas as for example Hurricane Iniki in Hawaii. Some stockpiling authority exists in the Stafford Act as currently written]

CONCLUSION

It is apparent from reviewing the report that the investigators neither understood the Federal Response Plan, the Stafford Act, NSEC, or fundamentals or the way in which FEMA operates. The draft inspection report is particularly distressing in that it represents, as best, only a cursory and very incomplete review of FEMA’s response functions and mechanisms – at worst, it is replete with unsubstantiated claims, conclusions that are not always clearly developed and, to some extent, a predisposition to believe that FEMA has done little in the way of ensuring improved response coordination or that demonstrates a limited amount of research on this subject. To ignore the progress made by FEMA in these areas and the extremely positive accomplishments that have been made (that have received accolades from the Administration and Congress), is to portray a distorted and inaccurate picture that reflects badly on both the Office of the Inspector General and the Agency.

We strongly urge that before this report is released, that your investigators sit down with us and our staffs to discuss in detail the matters in this report.

[Editor’s Final Comments- The organization of this document is somewhat confusing. Generally, OIG comments are made in Italic and underlined. Generally, editorial comments are marked in italics. Two documents have been added as an appendix. A short article previously published by the editor containing the full text of the Stickney memorandum of January 24, 1991. This memorandum was prepared at the personal direction of the Office of Policy Analysis and Evaluation, headed by Ms. Lynn Smith (retired from FEMA). The memorandum was prepared at the personal direction of the Director of FEMA in order to establish a base level of understanding in the agency given the existence of various plans. It was the first use of the term Federal Response Plan and to the credit of the political appointees in FEMA the FRP was a politically imposed decision just as the NRP is a politically imposed decision now. Additionally, a list of Carter and Reagan/Bush National Security Decision Directives is attached. These documents often were classified when issued but are typically at least partially unclassified now and available from the Carter/Reagan/Bush Presidential Libraries.

In perhaps the most interesting conclusion to the Directorates comments, the OIG Officially issued the Inspection Report on September 14, 1992 substantially unchanged. The issuance of the report led to funding in the FEMA appropriation of $550K for the NAPA report. No request has ever received by the Office of General Counsel to analyze the authority of FEMA to respond to incidents/events where there is no Presidential declaration. It is still true today that no other Federal department or agency has the same budget execution authority as does FEMA for mass care, mass shelter, mass medical, mass feeding, mass evacuation and certain other types of assistance. The editor has provided this document in the hope that it assists researchers on existing issues still facing the Nation after Hurricane Katrina.]

ASDA NEWSLETTER
Volume 33, Number 3 May-June 2003

January 24, 1991 Stickney Memorandum on FEMA’s Response Readiness

Wallace E. Stickney was FEMA’s fourth Presidentially appointed and Senate confirmed Director (Executive Level II). The previous Directors had been John W. Macy (1979-1981); Louis O. Guiffrida (1981-1985), and Julius W. Becton (1985-1989). Robert Morris, a Presidentially appointed Senate confirmed Deputy Director of FEMA served as Acting Director for two substantial periods (July-November 1985 and July 1989-May 1990). In May 1990, a new Presidentially appointed Senate confirmed Deputy Director, Jerry Jennings, served until Wallace E. Stickney was confirmed in August 1990. That date was significant because Iraq was in the process of invading and seizing Kuwait.

Over the course of the fall of 1990, Director Stickney had systematically received briefings from FEMA staff, and held table top exercises (no actual movement of personnel or materials) to basic learn the emergency management and response system as it then existed. Those briefings and exercises often involving both high-level political appointees and career officials, but never from outside FEMA, were filled with confusion and lack of detail. A simple reason for this confusion and lack of detail existed. Very few political appointees or career officials understood all the plans and response systems that FEMA has either promulgated or signed onto through unfunded Memoranda of Understanding (MOU) or funded Memoranda of Agreement (MOA). Now, for the first time in its history, the United States was faced with Iraqi sympathizers or nationals retaliating with domestic terrorist attacks. It should be state that no formal threat assessment or warning was issued to the civil agencies, State or local governments or the general public or the civilian response community. In fact despite general knowledge that such attacks were possible, even if not directly threatened, FEMA was instructed by the staff of the National Security Council not to even discuss possible attacks. Although the Federal Civil Defense Act of 1950 (Pub.L. 81-920) had contained authority for the Administrator to declare a “Civil Defense Emergency” that authority lapsed in 1974.

The context of planning in FEMA in 1990 must be understood as the source of the confusion and lack of clarity. First, the civil National Security community had lived and died bureaucratically by planning for contingencies that would hopefully never occur. Various kinds of exercises, usually tabletops, concerned themselves with various contingencies. In the 1980’s FEMA had participated with DOD in large-scale mobilization exercises, such as Rex-Alpha and Bravo (1982 and 1984) and paid for it bureaucratically when various organizations sued FEMA to learn the details of what was alleged to be a secret government. Second, the HAZMAT’s community pursuant to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) issued originally through agency mandates and then pursuant to E.O. 12316 of August 14, 1981 (now E.O. 12580, as amended) had undergone real life situations requiring actual deployment and response. Even as late as December 1993, however, in a report to Congress, EPA identified continued confusion and overlaps in federal hazmats planning and response. See “A Review of Federal Authorities for Hazardous Materials Accident Safety”, December 1993, EPA 550-R-93-002.

By November 23, 1988, when the Robert T. Stafford Disaster Relief Act, Pub.L. 100-707, had been signed, a Federal Response Plan for a Catastrophic Earthquake had been agreed to by all agencies in November 1987. The plan had been mandated by the Earthquake Hazards Reduction Act of 1977. This plan was the last major civil plan to contain a law-enforcement section, because after that date the Department of Justice refused to agree to inclusion of any law enforcement annex where the plan arguably did not have the Attorney General as the lead. See for example, discussion of the National System for Emergency Coordination issued by the Domestic Policy Council in January 1988.

Additionally, there was the Federal Radiological Emergency Response Plan (FRERP) promulgated pursuant to E.O. 12241 that by its own terms addressed terrorism. This plan had been published in 1985 and was last updated in 1996. It should be noted that NRC, DOE, and FEMA had signed an MOU in 1981 on radiological incident/event response that still exists, even though arguably conflicting with the FRERP.

It is interesting to note that as early as 1982, in NSD 47, the National Security Council had attempted to facilitate a single domestic response system. That this issue still persists in evidenced by language in the National Strategy for Homeland Security issued in July 2002.

Trying to reconcile all this planning confusion, Director Stickney, four days before Desert Storm in a memorandum for all FEMA employees on January 24, 1991, mandating that the Federal Response Plan (for Public Law (93-288, as amended) would be used to support State and local response plans. This was the first use of the term Federal Response Plan because deep in the bureaucracy the Earthquake Response Plan had evolved into the Natural Hazards Response Plan and now was becoming the Federal Response Plan (initially issued in 1992). The formal adoption of the Federal Response Plan finally occurred in 1995. Documentation of planning and response confusion in FEMA in 1992 (even before Hurricane Andrew (August 1992)) exists in reports issued by the FEMA Inspector General.

The Homeland Security Strategy published by the White House Office of Homeland Security on July 6, 2002, had recommended combining (1) the Federal Response Plan; (2) the National Contingency Plan for Oil Spills and Hazardous Materials Releases; and (3) the Federal Radiological Emergency Response Plan into a National Response Plan. This recommendation was also the subject of Homeland Security Presidential Directive 5, issued on February 28, 2003, which added the concept of a National Incident Management System (NIMS) and named the Secretary of Homeland Security as the National Incident Manager. The Homeland Security Act of 2002, Public Law 107-296, had also called for plan merger and assigned the responsibility to the Director FEMA. This statutory direction was not, however, followed by the Secretary DHS.

Appendix: Stickney January 24, 1991 Memo

FEDERAL EMERGENCY MANAGEMENT AGENCY

WASHINGTON, D.C. 20472

January 24, 1991

MEMORANDUM FOR: ALL FEMA EMPLOYEES

FROM: Wallace E. Stickney
Director

SUBJECT: FEMA’s Emergency Response Readiness

Events in the Middle East have made readiness a watchword throughout the world. Accordingly, we have reviewed and tested our plans, our communications system and procedures for support to state and local emergency response operations. We found that some requirements and systems need updating and clear decisions needed to be made. To ensure FEMA’s capability to support the full scope of emergency response, and best support the State and local response plans that we helped develop, I have determined that the Federal Response Plan (for Public Law 93-288, as amended) will be used if needed. We use all or parts of this plan on a regular basis and it is the process with which states are most familiar. The State and Local Programs and Support and National Preparedness Directorates are cooperating in fine-tuning this capability, and I am pleased with their progress.

Our readiness review identified some areas of FEMA in need of additional improvement. These areas include the Continuity of Operations Plan and other routinely used management tools. We are taking this opportunity to address these areas as well to assure a fully integrated response capability. I appreciate your assistance in the longer term planning required to achieve these improvements. We will be much a better agency next month that we were last month!

To date there is no known specific threat against any facility or person. However, because of the war in the Middle East, the potential exists that a terrorist act could occur. FEMA, like most other departments and agencies, has taken steps to enhance security in this building and in all field activities. In addition, security awareness of personnel has been encouraged through security advisories both local and nationwide. We feel confident that should a specific threat become identified, we will be provided information to make available to all FEMA employees. Moreover, should a threat exist anywhere in the country, we are confident that we and the state officials will be advised of this by those agencies tasked with law enforcement aspects of national security.

FEMA’s readiness to respond to major emergencies is an important responsibility for all of us. I know we all want to offer our talents to FEMA when needed. Extra assistance could be required were a major technological or natural disaster to occur. Please let your supervisor know if you would like to volunteer to assist, should we need to implement the Federal response plan.

I appreciate your support in these times. Our task without question is to execute our assigned programs and emergency operations. We know our responsibilities. We have reviewed, practiced, tested and updated our procedures. We will continue to hone our skills and be prepared to do our best when called. I am confident that if we all simply do our jobs well, we will ensure that the Federal Government will provide the support that the state and local governments need, when and if required.

Distribution: H (ALLPersHQFLD)

CARTER PRESIDENTIAL DIRECTIVES RELATING TO National Security DIRECTLY AFFECTING FEMA

PD-41 U.S. Civil Defense Policy
PD-57 Mobilization Planning
PD-58 Continuity of Government

REAGAN AND BUSH (41) NATIONAL SECURITY
DIRECTIVES DIRECTLY AFFECTING FEMA
1982

1. NSDD 23 U.S. Civil Defense Policy
2. NSDD 26 Civil Defense Policy
3. NSDD 30 Managing Terrorist Incidents
4. NSDD 47 Emergency Mobilization Preparedness

1983

1. NSDD 97 National Security Telecommunications Policy

1984

1. NSDD 145 Telecommunications and Computer Security

1985

1. NSDD 174 National Defense Stockpile of Minerals
2. NSDD 179 Task Force on Combating Terrorism
3. NSDD 188 Reorganization of “Emergency Preparedness” Functions

1986

1. NSDD 207 National Program for Combating Terrorism

1987

1. NSDD 259 Civil Defense

1990

1. NSDD 42 Security of National Security Telecommunications and
Information Systems

1992

1. NSDD 66 Civil Defense

Editor’s Note:

For text as declassified see “National Security Directives of the Reagan & Bush Administrations- The Declassified History of U.S. Political & Military Policy 1981-1991” Christopher Simpson (Westview Press, 1995). Also Carter, Reagan, Bush Presidential libraries have online versions of all declassified Presidential and National Security Directives. In the opinion of the editor, NSDD-47 issued in 1982, even though amended in 1985 by NSDD-188 remains a seminal document in the history of emergency preparedness, mobilization, response and recovery.

See also http://www.fas.org/irp/offdocs/pdd/

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Implementing the concept of RESILIENCE in FEMA

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