Homeland Security Watch

News and analysis of critical issues in homeland security

October 16, 2009

There are three major parties in Congress: Democrats, Republicans, and Appropriators

Filed under: Budgets and Spending,Congress and HLS — by Philip J. Palin on October 16, 2009

As Jessica Herrera-Flanigan pointed out in her Tuesday post, a Homeland Security authorization bill has never been sent to the President for signature.  In its absence the power of appropriators is amplified, as if appropriators were not already plenty powerful.

In prior posts I have offered an exegesis of what has been said by President Obama, Secretary Napolitano, and John Brennan, the Deputy National Security Advisor.  To be an exegete is to closely analyze what is said or written by another in order to derive guidance. 

Appropriators don’t leave exegesis to others.  The official Conference Report of the House and Senate regarding the Department of Homeland Security Appropriations Act of 2010 is 149 pages long (and a 12 megabyte download).  It is followed by a semi-official (for lack of a better term) ”Joint Explanatory Statement”  that is 12o-plus  pages long (depending on whether you include the list of earmarks).

A House-Senate Conference highlights agreements and resolves differences between related legislation passed by each chamber of Congress. In doing this, provisions of each body’s legislation is adjusted with the agreement of conferees from both bodies. There is much horse trading both before and during a conference.  If the conference is successful, a compromise measure is presented to both House and Senate for passage.  The House approved the Homeland Security Conference Report on Thursday afternoon.

The explicit purpose of the Joint Explanatory Statement is to set-out, “the effects of the action agreed upon by the managers and recommended in the accompanying conference report.”  It is not the law, but it has at least as much power as the law.  I have usually been more interested in what is in the ”Joint Explanatory Statement” or its equivalent than in the law itself.

I am usually looking for a single obscure sentence, something that most others will not even recognize as having importance.  But I know — and senior Hill staff and senior public servants know — that this represents the formidable intent of a conferee or conferees.  I assume there are dozens of such discreetly pregnant sentences.  I recognize a few in this explanation.

At times formidable intent is a matter of how much money goes where.  So, for example, on page 67 we read,

The conference agreement provides $64,179,000 for NCSD Strategic Initiatives as proposed by the House instead of $57,679,000 as proposed by the Senate. As discussed in the House report, the total amount includes: $3,500,000 for a Cyber Security Test Bed and Evaluation Center in Research Triangle Park, North Carolina; $3,500.000 for cyber security training at the University of Texas at San Antonio; $3,000,000 for the Multi-State Information Sharing and Analysis Center (MS-ISAC) at the New York Office of State Cyber Security and Critical Infrastructure Coordination; $3,000,000 for the Power and Cyber Systems Protection, Analysis, and Testing Program at the Idaho National Laboratory, Idaho; $500,000 for Virginia’s Operational Integration Cyber Center of Excellence (VOICCE) in Hampton, Virginia: and $100,000 for the Upstate New York Cyber Initiative at Clarkson University.

Some will immediately see this as “pork.” I am not so inclined.  Since many of my family and friends raise hogs, I don’t have a prejudice against pork.  Depends on how it is raised and slaughtered.  The proof is in the tasting.

On other occasions the amount of funding is not mentioned, but a preferred “partner” is identified. On page 79 the explanation reads, “The conferees direct FEMA to consider utilizing the National Virtual Translation Center (NVTC) to enhance its translation services. FEMA is to report to the Committees, as specified in the House report, on possible uses of NVTC.”

You can anticipate the outcome.  But, again, I have seen this power-of-the-purse be constructive, even innovative and creatively disruptive.  I have also seen the power cynically abused.

But especially in the absence of an authorization bill, the guidance given through these explanations can go well-beyond what we might reasonably expect of appropriators. The following is excerpted from page 76 of the conferees self-exegesis.

The conferees recognize that since September 11, 2001 there has been a rush to increase, restructure, and reinvest in preparedness, response, recovery, and mitigation policies and capabilities. This effort was reemphasized after Hurricane Katrina. Major preparedness and response policies have been developed or reshaped including: the National Preparedness Guidance; National Incident Management System; the National Response Framework; Comprehensive Planning Guidance; Disaster Housing Strategy; and Hazard Mitigation Assistance. Countless guidance documents have been issued to address specific issues or disasters. Additionally, over $27,000,000,000 has been invested by the federal government in grants, and an untold amount at the local and State level. These investments have provided equipment to make our public infrastructure safer, our first responders better protected and prepared to respond to all hazards, and to ensure a more coordinated effort among the levels of government. Efforts to fully assess these investments and improved capabilities have not yet come to fruition, though disparate attempts to find a more comprehensive measure through programs such as Cost-to-Capability, the Target Capabilities List, and the Comprehensive Assessment System are ongoing.

The conferees note that tremendous time and fiscal investments into preparedness have been made to date and believe it is time to take stock of such efforts to find ways to ensure the most efficient investments are made in the future. The reality of a constricted economy and competing interests make it imperative that current efforts related to homeland security and all-hazards response and recovery be streamlined. Therefore, the National Preparedness Directorate (NPD), in cooperation with the Office of Intergovernmental Affairs, shall lead the administrative effort of a Local, State, Tribal, and Federal preparedness task force. The task force is charged with making recommendations for all levels of government regarding: disaster and emergency guidance and policy; federal grants; and federal requirements, including measuring efforts. The task force shall especially evaluate: which policies and guidance need updating, and the most appropriate process by which to update them; which grant programs work the most efficiently and where programs can be improved; and the most appropriate way to collectively assess our capabilities and our capability gaps. Representation on the task force shall include: decision makers and practitioners from all disciplines including, but not limited to, firefighters, law enforcement, emergency management, health care, public works, development organizations, mitigation, and information technology, elected officials, the private sector. NPD is directed to brief the Committees within 45 days after the date of enactment of this Act on its approach to establishing this task force and milestones for accomplishment.

I am not questioning the potential value of such a task force.  On the face of it, sounds like an entirely reasonable idea.  I suppose there may be a couple of discreetly pregnant sentences here as well, but too discreet for me to recognize.  Depending on who is appointed to the task force it might be cats fighting over scraps… or saints leading us to salvation.  Don’t know.  Will be interesting to see.

But I do question the wisdom of such a far-reaching endeavor emerging from the bowels of a conference this late in the process.  Someone recently said that reality can be layered, messy, inefficient, and randomly revealed.  This is true of most conference reports.  But that’s not the best benchmark for effective legislation.

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4 Comments »

Comment by William R. Cumming

October 16, 2009 @ 4:11 am

A very helpful post Phil. Starting about 1982 when the first massive Omnibus Approps bill went through and was signed by the President the realization that the old point of order system used by Authorization Committee members on the floor debate on Approps to prevent incorporation of unauthorized programs, functions, or activities from taking place, the Authorization Committees became proverbial dead ducks since the appropriations when made statute acted as authorizations. Was that a long sentence or what. At any rate the authorization committees could have begun to focus on long term policies, needs, issues etc. but instead just used their newly “spare” time to watch the appropriations committees usurp their functions. Why not a separate list in each years appropriations indicating which programs, functions, and activities, or grants have never, repeat never, recieived an authorization. This could be assembled by the staffs and would at least tell the authorization committees that there might be something to look at by their committee.
New issue: Earmarks and whether reflecting good policy or bad policy! What I find of interest is that whatever their merits they become a black hole and no one ever finds out if the grant or earmark accomplished anything or was just a form of revenue sharing with the grantee or recipient. Why not have GAO prepare a report each year on the status and/or accomplishments of the earmarked funds or recipient organization. By the way FEMA in today’s Federal Register proposes a voluntary stanard for preparedness for all private sector orgs for their preparednes. Fits the resilience discourse on earlier posts on this blog.
My other worry is sort of a tangled “Opportunity cost” argument a la economic theory. Funds spent one place don’t get spent another. And by the way the enormous Goldman bonuses this year (almost $27B)even if partially taxed do seem an exhorbitant example of lost opportunity ocsts. That aside I will even a new term here for earmarks and their recipients. I will call it the “SUBSTITUTION FACTOR”. Meaning that funding one group denies funding other groups or activities. Let’s take the Homeland Security Centers of Excellence! With over 170 colleges and universities with programs in Homeland Security and Emergency Management what has actually been accomplished academically or research wise by the Centers for Excellence. I do know that politics seemed to have been an important factor in the Centers selection. To be expected I guess but hoping there were no kickbacks to members of congress or otherwise. And by the way just an ethics gripe–How do you find out that a MEMBER of Congress has taken kickbacks from a contractor or grantee? Looks to me that self-reporting is relied upon and that is a dismal prospect to policing of kickbacks from earmark or pork activities. Just some thoughts for a rainy Friday morning here in the Northern Neck of VA.

Comment by Peter J. Brown

October 16, 2009 @ 9:40 am

This is an appeal to all 10 FEMA regional coordinators to stand up and be counted.

While I agree that while much time and energy has been devoted to standing up 4500 personnel under the current 3 CBRNE Consequence Management Response Forces (CCMRF), there is a valid need for a more agile and responsive force consisting of 10 smaller teams assigned to all 10 FEMA regions. In instances where a specific FEMA regional coordinator calls for additional support, any movement / mobilization of appropriate CBRNE response resources and manpower could accompany a broader EMAC activation in close coordination with HHS / CDC and other components.

However, beyond any CBRNE / CCMRF concerns, it might be a good idea for each of the Regional Emergency Communications Coordination Working Groups (RECCWGs) in each of the 10 FEMA regions to reflect upon the recommendations spelled out Page 61 of the GAO report last summer (see GAO-09-604 Emergency Communications).

Specifically, what is the status of the broad implementation of the National Emergency Communications Plan (NECP), and, if bottlenecks or significant glitches are apparent, what is the impact? A year after the release of the NECP, how relevant and how workable are the milestones, for example?

Whereas this GAO report suggests that each region might want an update from DHS on the status of the Emergency Communications Preparedness Center (ECPC), and how the progress to date and intended outcome of the ECPC project helps or hinders efforts to implement NECP, perhaps the ECPC concept needs further scrutiny in light of overall progress to date on the NECP.

As DHS and FCC attempt to craft a “common vision” and “better collaborate on each agency’s emergency communications efforts” what exactly are the priorities and how do these match priorities at the local and state level in terms of overall planning and coordination efforts — again something that is relevant to the RECCWGs.

Finally, where the GAO recommends –

“To help ensure that federal agencies and their communications assets are well-positioned to support state and local first responders in catastrophic disasters, we recommend that the Secretary of Homeland Security provide guidance and technical assistance to federal agencies in developing formal emergency communications plans. These plans could include identifying how federal agencies’ communications resources and assets will support state and local first responders in a disaster. To help DHS and FCC enhance the value of stakeholder groups’ recommendations, we recommend that the Secretary of Homeland Security and the Chair of the Federal Communications Commission systematically track, assess, and respond to stakeholder groups’ recommendations, including identifying actions taken by the agencies in response to recommendations, whether recommendations are duplicative with past recommendations, and opportunities to work with other agencies, as appropriate, to advance recommendations.”

Perhaps, given all the time spent on this and related topics to date, the time has come for the RECCWGs in the 10 regions to be empowered to act as one and emerge as a logical overseer of this process. In other words, rather than sitting on the receiving end of the outcome, the RECCWGs could speed the process by setting out what exactly is needed at this point, and set a realistic timetable as well. As end user representatives rather than providers, the RECCWGs are in a good position to take realistic look at where this is all leading, what has been accomplished to date, and how the vendor-driven and real world environment could benefit from the activities in question.

I do not want to sound as if I do not see the value of an NPD task force like the one described here, but at the same time simply from a confidence-building standpoint, I cringe when I hear that another task force of such an immense scope may be forming up to do nothing more than critique the entire national preparedness and response apparatus that has been taking shape during this decade. We should, at this point, be devoting time and energy to a more productive exercise.

Comment by htomfields

October 16, 2009 @ 10:14 am

You can learn more about INL research projects at http://www.facebook.com/idahonationallaboratory.

Comment by William R. Cumming

October 16, 2009 @ 3:25 pm

Agree with Peter’s comments. It appears that the Congressional committee’s always want the final landscape painting in total completion without being willing to support the preparation of the paint, the canvas, the relationship of the details to the final product. Unfortunately, given the understaffing, underfunding and general inability of FEMA to follow through on almost anything requiring special expertise or knowledge unlikely Peter’s suggest will be taken. It is this systematic deficiency in FEMA’s ability to conduct preparedness activity which has always been a ‘fatal flaw’! The decision to constantly higher generalists, then to not invest heavily in training and education, has resulted in politically oriented grantsmen/women but not necessarily what would be of the greatest assistance in a domestic crisis or large-scale event–specific knowledge of what others can accomplish and what needs to be done–specifically. In other words, knowledge and skills to build a collaborative and cooperative effort that does NOT rely on individual brilliance and energy.

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