Monday, October 31, 2011

Not with a Bang but a Whimper; How the last CD NSDD accelerated all-hazards

The federal civil defense program had a statutory basis in Public Law 920 of the 81st Congress. Its repeal in 1994 under President Clinton might have covered up the fact that since the 1970's and President Nixon civil defense was not a real factor in the strategic equation of nuclear weapons. MAD, however is still the US strategic doctrine. The US Congress after the 1970's gave almost no oversight to the CD program and in fact accelerated its grant program as unrestricted revenue sharing.

Theoretically, the President's did not want to deal with CD after JFK and in a series of PD's and NSDD's used that system to largely fig leaf a decrepit effort. It should be said however that honorable people ran the program and did worry and lose sleep over the survival of a substantial portion of the US population should an attack occur. Two policy adoptions would have facilitated CD. First, renunciation of the MAD doctrine and simultaneous renunciation of first use of nuclear weapons. Even President Obama seems held captive to the DoD and DoE nuclear priesthood even as costs of the cleanup of the bomb complex realistically are probably close to $1 trillion.

Even weaker than the statute itself as amended as of the date of NSDD-66 (U) the language adopts the all-hazards mantra that now even rules in DHS.

So here is the text annotated by me for readers!

Editors note- While copied from the original several
editorial highlights have been added to enhance emphasis.
It should also be noted that this was the last Presidential Directive/ National Security Directive issued to provide guidance on Civil Defense prior to portions of the Federal Civil Defense Act of 1950, as amended being incorporated in the Robert T. Stafford Disaster Relief and Emergency Assistance Act. Essentially it mandates all-hazards preparedness and was reflected in a formal statutory amendment of the Federal Civil Defense Act of 1950 by Public Law 103-160 in 1993]


March 16, 1992





The United States will have a civil defense capability as an element of our overall national
security posture. The objective of the civil defense program is to develop the required capabilities common to all catastrophic emergencies and those unique to attack emergencies in order to protect the population and vital infrastructure. Civil defense can contribute to deterrence by denying an enemy any confidence that he could prevent a concerted national response to attack. (U)

The civil defense program will support all-hazard integrated emergency management at State and local levels. In so doing, the civil defense program will: (U)

1) Recognize and respect the primary responsibility of State and local governments to provide for the safety and well being of their citizens in emergencies other than national security emergencies.

2) Provide a focal point within the Federal government to work with State and local governments on integrated multi-hazard response planning and operations to deal with the consequences of catastrophic emergencies. (U)

3) Continue to implement a policy of dual use of civil defense resources through the development and use of capabilities at Federal, State and local levels to perform emergency functions to respond to emergencies of all kinds including attack. (U)

4) Focus on the development, jointly with State and local governments, of the required capabilities common to all catastrophic emergencies and those unique to attack emergencies, thus ensuring that the use of civil defense funds is consistent with, contributes to, and does not detract from attack preparedness. (U)

5) Provide for the development of a civil defense infrastructure capable of expansion in a national security emergency involving the threat of all forms of attack on the United States which provide advanced warning. (U)

6) Utilize to the maximum extent the existing capabilities, facilities and resources of all appropriate departments and agencies of the Federal Government, in accordance with Executive Order 12656 and, with their consent, those of the States and political subdivisions thereof, and of private sector organizations and agencies. (U)

Disaster-specific programs such as hurricane or flood relief programs which may be incorporated into the civil defense program and which are currently funded within domestic discretionary accounts will continue to be budgeted in this manner. In addition, any equipment or programs not needed for the consequence management of national security emergencies will be funded within the domestic discretionary accounts.


The program under the direction of the Federal Emergency Management Agency with the support of heads of the Federal Departments and agencies, and under the general policy guidance of the National Security Council, will include: (U)

1) Population protection capabilities, with the Federal Government providing guidance and assistance to enable State and local governments to effectively support the population in all catastrophic emergencies. (U)

2) State and local government crisis management capabilities to effectively
support the population in all catastrophic emergencies. (U)

3) Information to promote a clear understanding by the public of the civil defense program, all threats which may affect their localities and actions they should take to minimize their effects. (U)

4) Information to assist U.S. business and industry in taking measures to protect their work forces and physical assets in all catastrophic emergencies and encouragement of the private sector to make maximum use of private sector capabilities. (U)

5) Voluntary participation by citizens and institutions in community civil defense activities and emphasis on citizen protective actions. (U)

6) Plans for sustaining survivors, for restoration of critical life support capabilities, and to establish a basis for recovery. (U)

7) Definition of and an assessment of the base capability necessary to respond to emergencies that do not provide warning, and the development of those base capabilities which are common to all catastrophic emergencies and unique to attack. (U)

8) Plans for a civil defense surge from the base capability to the total required capability in a national security crisis involving the threat of attack. These plans should assume advanced warning, adequate time to conduct the surge, and the required base capability form which to surge. Total required capability is that operational capability necessary to protect the population and vital infrastructure through preparedness measures common to all catastrophic emergencies and unique to attack emergencies. (U)

The Department of Defense will support civil authorities in civil defense, to include facilitating the use of the National Guard in each state for response in both peacetime disasters and national security emergencies. Subject to the direction of the President and the Secretary of Defense, readiness of the armed forces for military contingencies will have precedence and civil authorities should not rely exclusively on military support. Federal military resources will be employed in civil defense missions only if State and Federal civil resources are not sufficient. Nothing in this directive alters or otherwise affects the chain of command for the armed forces established by the Constitution and laws of the United States. (U)

Nothing in this directive provides for any new Federal responsibilities which are now the responsibility of State and local governments. (U)


National Security Decision Directive 259, dated February 4, 1987, is rescinded. (U)

/signed/ George H.W. Bush

Friday, October 28, 2011

Fugate Claims New Legal Authority under PKEMRA 2006

Administator W. Craig Fugate testified before the House Homeland Security Committee on Tuesday October 25th. His testimony and video of entire hearing still on the Committee website at!

In his response to questions, Adminstrator Fugate claimed that the Stafford Act is no longer the be all and end all of response. But that in fact PKEMRA 2006 fixed some broken reeds in FEMA response and in particular the leaning forwards aspects of response to disasters.

Some history. The George H.W. Bush administration argued to the Congress's investigative arm that a statutory change would be necessary to the STAFFORD ACT if FEMA was to be forward leaning in disasters. This claim was fundamental to its defense of its organizational performance in Hurricane Andrew that made landfall in August 1992. The Stafford Act was never formally modified to reflect this position. And perhaps oddly the George H. W. Bush Administration used so-called PUSH packages to lean forwards in response to Hurricane Iniki in Hawaii in late 1992.

Only an insider to OGC legal policy formulation could understand this debate. I was often asked by new General Counsels in the independent FEMA OGC during my service from 1979-1999 to brief them on an open-ended basis as to items they should be concerned with. Usually my briefings were very short, most less than 5-15 minutes depending on the questions I was asked.

I will pick on John Carey the first Demoratic GC of FEMA after the position was made political by the George H.W. Bush Administration, a non-career SES. I had received WH calls twice asking whether it should be career or non-career and somewhat odd since I was a GS-15 who had once applied for it indirectly in 1985.
I said I thought the career GCs were being rolled and excluded too often by the political appointees in crucial situations so that the position should be non-career. It was made an dual appointed position eventually and could be held by either a career or non-career lawyer. At least one later paid a $25,000 fee to become the GC of FEMA as a campaign contribution. No names please.

So what did I tell Mr. Carey! I told him that few of the FEMA Directors to-date had been proactive and few even were willing to view FEMA as an operational entity as opposed to an organization that served the WH and its minions and policies. Many WH directives to FEMA had been orchestrated by OMB and that was an OMB that wanted FEMA to do as little as possible with respect to funding disaster response and recovery. In fact an argument could be mounted that OMB supported the creation of FEMA only to reduce the federal role in disasters. That did not happen of course. But OMB still tried to accomplish that goal in many direct and indirect ways.
Anyhow I told Mr. Carey that there were a mountain of OGC opinions that opined FEMA had little or no authority to do much of anything. Certainly not be a creative organization in disaster response. So I said that I viewed Mr. Carey's principal client, Director Witt, as more proactive [which he was] and he would have to decide the validity of those prior OGC opinions. The key legal opinions were given by me to the head of the NAPA team that wrote the report "Coping With Castastrophe" released in February 1993. There was a legal appendix to that report that was never published. I have made it available in both the original version and my annotated version to requesters. Largely an opinion by an outstanding and then retired career SES lawyer John Bell it should be required reading for any involved in EM and in particular noting the application of the NAPA report, the appendix, and FEMA OIG reports on Hurricane Andrew in light of Hurricane Katrian response 13 years later.

Mr. Carey chose not to modify the prior opinions but to await Director Witt's requests! Strangely and perhaps necessarily Director Witt made few formal requests to FEMA OGC for opinions. I did have cards printed with the broadest discretionary mandate to him in any FEMA legislation and distributed them to Director Witt in the form of 50 copies of plasticized wallet cards. Director Witt's comment to me on receiving those cards was of interest! He said to me "you mean I have that much authority?" and I replied "yes'!

So back to PKEMRA 2006 as a statute vesting legal authority in the Adminstrator FEMA! Obviously some opining officially or unofficially has been done by the OCC [Office of the Chief Counsel] in FEMA as to authority granted to the Administrator to pre-position and moreover to do even more prior to any declaration. I would like to see that opinion. I would suggest that authority to stockpile could arguably contain authority to utilize but given FEMA past legal opining that would be a revolution. While almost no basis exists for legal challengs to disaster ops that case law so far applies only to the STAFFORD ACT!

Personally I have always favored FEMA leaning forwards ever since having to defend FEMA to GAO in the TMI core-melt accident that was NEVER declared a disaster but much effort was expended in case it had been declared.

Thursday, October 27, 2011

National Disaster Recovery Framework [NDRF]

The NDRF has been posted in the FEMA historical docs section on the home page of this blog thanks to Steve Aftergood of FAS.

That document has now been confirmed as FEMA's effort to fullfill the requirements in the statutory mandate laid down by PKEMRA 2006 that states as follows:


(a) IN GENERAL.—The Administrator, in coordination with the Secretary of Housing and Urban Development, the Administrator of the Environmental Protection Agency, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of the Treasury, the Secretary of Transportation, the Administrator of the Small Business Administration, the Assistant Secretary for Indian Affairs of the Department of the Interior, and the heads of other appropriate Federal agencies, State, local, and tribal government officials (including through the National Advisory Council), and representatives of appropriate nongovernmental organizations shall develop, coordinate, and maintain a National Disaster Recovery Strategy to serve as a guide to recovery efforts after major disasters and emergencies.
(b) CONTENTS.—The National Disaster Recovery Strategy
(1) outline the most efficient and cost-effective Federal programs that will meet the recovery needs of States, local and tribal governments, and individuals and households affected by a major disaster;

(2) clearly define the role, programs, authorities, and responsibilities of each Federal agency that may be of assistance in providing assistance in the recovery from a major disaster;

(3) promote the use of the most appropriate and cost effective building materials (based on the hazards present in an area) in any area affected by a major disaster, with the goal of encouraging the construction of disaster-resistant buildings; and

(4) describe in detail the programs that may be offered by the agencies described in paragraph (2), including—
(A) discussing funding issues;

(B) detailing how responsibilities under the National Disaster Recovery Strategy will be shared; and

(C) addressing other matters concerning the cooperative effort to provide recovery assistance.

(c) REPORT.—
(1) IN GENERAL.—Not later than 270 days after the date of enactment of this Act, the Administrator shall submit to the appropriate committees of Congress a report describing in detail the National Disaster Recovery Strategy and any additional authorities necessary to implement any portion of the National Disaster Recovery Strategy.

(2) UPDATE.—The Administrator shall submit to the appropriate committees of Congress a report updating the report submitted under paragraph (1)—

(A) on the same date that any change is made to the National Disaster Recovery Strategy; and

(B) on a periodic basis after the submission of the report under paragraph (1), but not less than once every 5 years after the date of the submission of the report under paragraph (1)."

The NDRF appeared in September 2011. Given the statutes highly specific listing of points to be addressed in the NDRS [national disaster recovery strategy] I find almost no correlation of points covered in the NDRF.

In Wednesday's hearing before the House Homeland Security Committee this disparity was not addressed but Administrator Fugate did state that in accordance with PPD-8 issued last spring changes to the NDRF and other frameworks would be almost continuous.

So stay tuned.

Monday, October 24, 2011


Okay the Official Hurricane Season ends November 1st although I think should run until December 1st. And now for the snow season.

FEMA and its predecessor organizations had never declared a snow disaster until 1979. President James Earl Carter sent his son "Chip" to Buffalo to determine whether a disaster should be declared. FEMA recommended against declaration for fear of setting a precedent. "CHIP" growing up on a peanut farm in Georgia had never seen snow. Buffalo had 19 feet, yes repeat not an error 19 feet of snow. "CHIP" talked to his dad and recommended a declaration.

Today snow declarations are almost routine. Presidents of both parties have declared them. Another example where the STATES and their local governments are subsidized for activity once theirs to fund.

So as we enter that fun time of year in the Norther Latitudes (and sometimes Southern) in the USA what does FEMA say of this history. See Below!

U.S. Department of Homeland Security
Federal Emergency Management Agency
Legislative Affairs Division
Telephone: 202-646-4500
Fax: 202-646-3600

Congressional Advisory
November 3, 2009


FEMA has released its final Snow Assistance and Severe Winter Storm Policy effective November 2, 2009. After the public comment period ended on Aug. 25, 2008, FEMA evaluated the potential impact of each comment on the policy, and responded to comments in the Federal Register Notice for the final policy.

Under the policy, snowstorm events will be evaluated by FEMA using the indicators identified in the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, for major disaster declarations. FEMA uses these indicators to make recommendations to the President, but it does not bind the ability of the President, in his discretion, to declare emergencies or major disasters.

The policy maintains the present criteria that a county experience a record, or near record, snowfall, but updates the methodology used by FEMA to determine whether a snowfall qualifies as a record or near record snowfall. Under the policy, FEMA will compare the highest National Climatic Data Center historical record in a county (rather than the lowest as currently used) to the National Weather Service (NWS) station with the highest current event snowfall within a county to determine if the snowfall event exceeds or is near a true record for a county.

The final revision made to the policy requires states to submit an estimate of eligible Public Assistance costs, including snow assistance costs for a 48 hour period that meet or exceed the county and statewide per capita cost threshold. Although this requirement is new to FEMA’s Snow Assistance and Severe Winter Storm Policy, an estimate of damages is a normal requirement for all states requesting a major disaster declaration.

The policy, formally titled The Disaster Assistance Directorate Policy Numbers 9100.1 and 9523.1 “Snow Assistance and Severe Winter Storm Policy,” will publish in the Federal Register. The policy supersedes the following:

• The Response and Recovery Policy RR9523.1, “Snow Assistance Policy,” dated Dec. 28, 1999,
• “The Response and Recovery Policy 9523.1, Snow Assistance Policy Procedures for Determining Record or Near-Record Snowfall” Memorandum issued by Carlos J. Castillo on June 30, 2008,
• The Snow Removal section on page 76 of the “Public Assistance Guide FEMA 322/June 2007,” and
• Page 122 of the “Public Assistance Policy Digest FEMA 321/January 2008.”

Thursday, October 20, 2011

Statistics and FEMA

When I was in FEMA it was always of interest to me that FEMA and its components collected mostly meaningless statistics. Disaster outlays on a repeated basis to each county geographic area in the USA was never collected. This might for example be of use in analyzing mitigation efforts.
But now that STATES and their local governments are undergoing severe budget cutbacks it would be of great interest to know exactly how much each state or local government has spent on Emergency Management since say 1990 and what percentage of those expenditures came from Uncle Sugar.
The reason for collecting this statistic is simple. Funding impacts capability. It does appear that between 10-25% of all EM funding in the USA [even including Homeland Security] since 2007 has been eliminated. I think this is a worthy topic for analysis of both academics and practioners. Hoping this will occur.

Wednesday, October 19, 2011

Teaching at GWU!

I helped Professor Richard Sylves on Monday night teach 24 grad students taking an intro to EM course at GWU! Interesting class with diverse backgrounds socially, ethnically, and discipline. Just as it should be.

I tossed out two main discussion items left unresolved since FEMA created.

First is FEMA the safety net or 911 for the feds or simply a cooperative and collaborative agency handing out money and information but not much technical assistance?

Second, in the face of declining STATES and their local government capability for many reasons should FEMA do more to help the STATES and their local governments on EM? I suggested that we did NOT need 90,000 local administrative units in the USA.

Other than above mainly gave insights or tried to do so through trivial pursuit--meaning incidents or events from the past that shed light on current EM policies and issues.

And because Rick Sylves asked me to discuss job hunting in EM I sorryfully informed the class that networking and who you know gets the foot in the door for most jobs.

Hey all the men were handsome, and all the women were pretty, and all seemed well above average because that may help in finding a job. Also thanks to Rick for the invite as it was a pleasure and hoping I was at least somewhat informative.

Wednesday, October 5, 2011


PKEMRA 2006 effective fully on March 31, 2007 is not a statutory charter for FEMA. It helped stabilize the toying with that DHS component to some degree. But it also in reality granted little new authority to do anything to FEMA and largely imposed more administrative requirements.

Some of its definitions are quite interesting. One follows:
"the term ‘‘surge capacity’’ means the ability to rapidly and substantially increase the provision of search and rescue capabilities, food, water, medicine, shelter and housing, medical care, evacuation capacity, staffing (including disaster assistance employees), and other resources necessary to save lives and protect property during a catastrophic incident; . . ."!

This concept and definition appear nowhere in previous FEMA delegations or chartering statutes. But it is of great interest! Why?

Typically for each Governor any routine or catastrophic disaster is a "Come as you are Party"! This is the case no matter right or wrong. The theory of course [of the Governors] is that you can get away with this operational concept because the federal government will supplement your efforts with whatever you need. The federal government may or may not do this depending on whether a federal disaster or emergency is declared. Efforts to improve mutual aid and even interstate aid through EMAC and other concepts have been deterred because of uncertain funding. It would be helpful if the federal government presumed that all the governors were competent [they clearly are not] and would automatically trigger STAFFORD ACT financial assistance whenever EMAC is triggered. You might say well then the Governors are being given a blank check. In fact however they are not because it is the supplying states governor that has to agree to deployment of his/her state assets and only after the requesting governor agrees to reimbursement of the supplying state. So if the feds automatically reimburse the supplying state perhaps that state will have an incentive to deploy state assets to his/her neighboring states. In fact that is ridiculous. States are too jealous of their resources and uncertain as to what may occur while their states resources are deployed out of state to view federal reimbursement as an incentive to deploy unnecessarily.

When EMAC was signed into law and even before I argued in OGC FEMA for an automatic triggering of federal financial assistance but was of course again a loser in that advocacy. I still believe it was the correct position and believe Congress should trust the governors deploying their critical state assets out of state to make the critical call backed by federal assistance.

By the way EMAC started as a National Guard policy intending to facilitate interstate humanitarian deployment [not law enforcement] of NG asset!

Has the USA's 52nd Largest City Recovered?

The October 1st edition of the British weekly newspaper the ECONOMIST has an article captioned "Counting the Missing" and discussing the demographics of NOLA! Declining 29% from the last census in 2000 the Economists states the current 2010 decennial census reveals that it had 343,829 inhabitants. Personally I doubt that given the Brookings Institution continuing Katrina analysis and documentation. But even at that it still ranks only number 52 of USA cities. In 1840 according to the article it was the third largest city in the USA.

Well there is no specific way to document when a specific locality has recovered from a disaster. So based on population alone no recovery for NOLA. But I would argue for a different metric! Is that population more or less likely to suffer a reoccurrence of the disaster based on its recovery efforts? This implicitly means of course was the recovery effort wasted. Well in NOLA until the next event no. But if the event is anywhere near a CATEGORY 3-5 hurricane or record flooding on the MISSISSIPPI River or a record meterologic event then NOLA will have been revealed as not a sound investment at all. Those who permanently relocated out of NOLA [an unknown number but estimated to be over 100,000] will have been the wise ones.

And note flood walls are still deficient and internal pumping stations still inadquate even for localized events. The plugging of MRGO continues.

Personally I would give up the notion of NOLA as a port and end maintenance and operation of the OLD RIVER CONTROL structure and thereby eliminate one major threat to NOLA--the Mississippi River. As always could be wrong!

Monday, October 3, 2011

S.1630-Stafford Act Reform Bill

On September 23rd, Senator Landrieu introduced a bill to reform the Robert T. Stafford Act along with Senator Cochran. Most of this bill could be accomplished adminsitratively and instead of giving or taking away administrative authority it is largely and exercise in futility.
But it does some interesting things that perhaps should be developed more fully by hearings by the Homeland Security and Governmental Affairs Committee in the Senate. First it substantially documents the states as the weakest link in the federal response and recovery system. Probably the top 1/3rd of STATES have at least some capability to respond to events confined to their state. The middle 1/3 can operate somewhat in that context. And the bottom 1/3 are almost totally incapable of helping their citizens even in an event confined to that state.
The bill would have the federal government document the reasons STATES cannot respond or recover to disasters. Now it is the Governors who largely unreviewed except in the crudest context that determine an event is beyond state capability. The new authority that is already in existence and repeatedly dodged by FEMA and the STATES in the requirement for STATE capability assessments might be very interesting if FEMA was allowed to and able to document STATES waste, fraud, and abuse and inherent factors in prohibiting or restricting adequate response and recovery. A recent report on TEXAS and HURRICANE IKE documents how state mismanagement has delayed recovery. So we all know that many federal programs came out of STATES incompetence or reluctance to modernize or just throwing up their hands and say let Uncle Sugar do it.

So while the bill will go not very far, a hearing on its proposed language and committee oversight of the need for it could be very interesting in an election year. We do know that FEMA is largely a contractor managed agency now as opposed to governmental employees. Key decisions are taken by contractors not FEMA and of course most mission assignments to other federal agencies (OFAs) are performed by that agencies contractors. No one seems to know what these contractors can really accomplish except to bill UNCLE SUGAR. Well perhaps time to refocus the "new" FEMA on preventing disasters and mitigating them rather than encouraging them by reckless administration. AS for the STATES some might do better to just go out of business. And we certainly don't need 90K plus units of local government.