Homeland Security Watch

Comment by Quin

November 28, 2012 @ 8:11 am

I’m waiting for Bill Cummings to jump in, but here is the easy answer: Blame Congress.

In the early 80′s, FEMA began to work on regulations that would bring concrete criteria to determining whether a State rated a disaster declaration. Congress revolted, actually the big states revolted fearing their larger populations and resources (read $$$$) would mean they would get fewer declarations than their smaller and poorer cousins. That begat this Section 320 of the Stafford Act in 1988:

Sec. 320. Limitation on Use of Sliding Scale (42 U.S.C. 5163)
No geographic area shall be precluded from receiving assistance under this Act solely by virtue of an arithmetic formula or sliding scale based on income or population.

Congress quite simply wants the declaration process to be a mess so state delegations can have the hope of applying political pressure to get declarations. So how does that mess manifest itself?

You were one section off in the regulations. When you start to think what is enough “trauma”, what is enough “concentrated damages”, how local is a “localized impact” you can quickly see its in the eye of the beholder… or if there are enough cameras pointed in that direction. So its not alltogether surprising then that this line from Section 401 of the Stafford Act, which lays out the criteria for a declaration rather succinctly, “Such a request shall be based on a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary,” has morphed into the regulation below.

§ 206.48 Factors considered when evaluating
a Governor’s request for a
major disaster declaration.
When we review a Governor’s request
for major disaster assistance under the
Stafford Act, these are the primary
factors in making a recommendation
to the President whether assistance is
warranted. We consider other relevant
information as well.
(a) Public Assistance Program. We
evaluate the following factors to evaluate
the need for assistance under the
Public Assistance Program.
(1) Estimated cost of the assistance. We
evaluate the estimated cost of Federal
and nonfederal public assistance
against the statewide population to
give some measure of the per capita
impact within the State. We use a figure
of $1 per capita as an indicator that
the disaster is of such size that it
might warrant Federal assistance, and
adjust this figure annually based on
the Consumer Price Index for all Urban
Consumers. We are establishing a minimum
threshold of $1 million in public
assistance damages per disaster in the
belief that we can reasonably expect
even the lowest population States to
cover this level of public assistance
damage.
(2) Localized impacts. We evaluate the
impact of the disaster at the county
and local government level, as well as
impacts at the American Indian and
Alaskan Native Tribal Government levels,
because at times there are extraordinary
concentrations of damages that
might warrant Federal assistance even
if the statewide per capita is not met.
This is particularly true where critical
facilities are involved or where localized
per capita impacts might be extremely
high. For example, we have at
times seen localized damages in the
tens or even hundreds of dollars per
capita though the statewide per capita
impact was low.
(3) Insurance coverage in force. We
consider the amount of insurance coverage
that is in force or should have
been in force as required by law and
regulation at the time of the disaster,
and reduce the amount of anticipated
assistance by that amount.
(4) Hazard mitigation. To recognize
and encourage mitigation, we consider
the extent to which State and local
government measures contributed to
the reduction of disaster damages for
the disaster under consideration. For
example, if a State can demonstrate in
its disaster request that a Statewide
building code or other mitigation
measures are likely to have reduced
the damages from a particular disaster,
we consider that in the evaluation of
the request. This could be especially
significant in those disasters where, because
of mitigation, the estimated public
assistance damages fell below the
per capita indicator.
(5) Recent multiple disasters. We look
at the disaster history within the last
twelve-month period to evaluate better
the overall impact on the State or locality.
We consider declarations under
the Stafford Act as well as declarations
by the Governor and the extent to
which the State has spent its own
funds.
(6) Programs of other Federal assistance.
We also consider programs of
other Federal agencies because at
times their programs of assistance
might more appropriately meet the
needs created by the disaster.
(b) Factors for the Individual Assistance
Program. We consider the following
factors to measure the severity,
magnitude and impact of the disaster
and to evaluate the need for assistance
to individuals under the Stafford Act.
(1) Concentration of damages. We
evaluate the concentrations of damages
to individuals. High concentrations
of damages generally indicate a
greater need for Federal assistance
than widespread and scattered damages
throughout a State.
(2) Trauma. We consider the degree of
trauma to a State and to communities.
Some of the conditions that might
cause trauma are:
(i) Large numbers of injuries and
deaths;
(ii) Large scale disruption of normal
community functions and services; and
(iii) Emergency needs such as extended
or widespread loss of power or
water.
(3) Special populations. We consider
whether special populations, such as
low-income, the elderly, or the unemployed
are affected, and whether they
may have a greater need for assistance.
We also consider the effect on American
Indian and Alaskan Native Tribal
populations in the event that there are
any unique needs for people in these
governmental entities.
(4) Voluntary agency assistance. We
consider the extent to which voluntary
agencies and State or local programs
can meet the needs of the disaster victims.
(5) Insurance. We consider the
amount of insurance coverage because,
by law, Federal disaster assistance cannot
duplicate insurance coverage.
(6) Average amount of individual assistance
by State. There is no set threshold
for recommending Individual Assistance,
but the following averages may
prove useful to States and voluntary
agencies as they develop plans and programs
to meet the needs of disaster
victims.

Comment by William R. Cumming

November 28, 2012 @ 8:45 am

Interesting post Phil and yes I will jump in! First no “s” on my name. Second, disclosure, while I was a primary drafter of the initial bare bones regulations implementing the Disaster Relief Act of 1974 [Public Law 93-288] enacted in May 1974 and I arrived in HUD from the Treasury Dept. on July 1, 1974, in part because they needed a reg drafter and lawyer for the then new FDAA [Federal Disaster Assistance Administration] led by Thomas Dunne, a wise old Republican pol of the Chicago School, and later both a regional administrator of EPA and then the Associate Administrator of EPA for Homeland Security.

The Department was headed by Carla Hills, and the General Counsel was Robert Elliott! Two of the best appointees I ever served under despite being a fuzzy heady liberal.

More to follow!

Comment by William R. Cumming

November 28, 2012 @ 8:59 am

Continued! After creating the total distrust of the program officials of FDAA because of my continued insistance to include implementing regs for the newly introduced term “mitigation” in the DRA of 1974, and my continued argument that Republicans should favor mitigation as reducing overall disaster outlays, the barebones implementing regs did not issue until 1979 and FDAA had become part of FEMA in July of that year under E.O. 12148. By that time the disaster legal team consisted of Michael B. Hirsch [later Deputy General Counsel of FEMA] and Craig B. Annear [later an Associate General Counsel for Grants at EPA]!

I was influential enough to have HUD help DoJ use disaster outlays as part of the measure of damages against Ralston Purina [that blew up 3 square blocks of Louisville, Ky with Hexane] and against Occidental Petroleum [the responsible party at Love Canal]!

I was able to help on that score because I was a social and business friend of John Quarles whose obituary appeared yesterday in WAPO and was both a General Counsel and Deputy Administrator of EPA.

The EPA connection for FEMA ran through the DoJ’s Environmental Law Division, one of 5 trial divisions of the Department of Justice. And in 1988 Congress allowed Stafford Act outlays to be utilized as damages when gross negligence of responsible parties caused outlays.

From 1980 until enactment of the Stafford Act in 1988 FEMA tried to get 75/25 cost share changed to a 50/50 outlay and as pointed out by Phil the 75% became a minimum. The dirtly little secret of disaster relief is that the 25% is almost never reimbursed by the States after fronting by FEMA and the President’s DRF [disaster relief fund]!

To be conintued!

Comment by William R. Cumming

November 28, 2012 @ 9:08 am

Okay so once a declaration is any assistance triggered?

Answer is NO! First there has to be a FEMA/State MOU called the Federal/State agreement and often customized for each disaster. So the FEMA Virginia agreement should be perused for an interesting details or anomolies. Disasters are declared by geographic areas, usually counties, and who knows wht FEMA actually recommended for Virginia’s disaster declaration request since the packages have been labeled not subject to FOIA and not available to GAO or Congress as being within the provisions of the so-called “deliberative process privilege” that theoretically allows the President to get unvarnished advice. So for all I know FEMA might have opposed VA’s request but the President decided to reward a “blue” state.

Comment by William R. Cumming

November 28, 2012 @ 9:09 am

After the Federal/State agreement is signed [and at least one court back in time (1973) labeled those agreements contracts] then new determinations are made as to exactly what financial and other assistance will be provided. This also is

Comment by William R. Cumming

November 28, 2012 @ 9:25 am

Well a duplicate comment above that perhaps Phil can eliminate. Blame it on the computer. But continuing–The details of the kinds of assistance is also negotiated allowing yet another round to pressure FEMA for financial or other assistance.

Personally with two potential 2016 Presidential candidates as Governors Hurricane Sandy relief could be a major show lasting through the conventions in 2016! Both Governor Christie and Cuomo will be bringing their A games to the response and recovery and mitigation effort. Should be one to watch as their top operatives learn the ropes of FEMA and disaster relief for the first time.

I expect the first round battle will be over cost share with both Governor’s seeking 100% Federal outlays due to the scope of the damages and losses.

Time will tell! Also you can bet that the Congressional delegations of NY and NJ will be seeking to get the broadened appeal rights now confined to the Gulf states broadened to include Hurricane Sandy or even just made permanent nation wide.

Those appeal rights have now been locked in as a de novo review not just a review of the entirety of the administrative record so that a whole new lawyers relief act may become emplaced in the scheme of disaster outlays.

Hope this discourse helps and of course given that Phil is I am sure well insured he probably will not benefit at all from federal disaster outlays personally because of the provision against duplication of benefits in the Stafford Act! Sorry Phil!

Comment by Wi9lliam R. Cumming

November 28, 2012 @ 2:30 pm

From the March 2012 National Preparedness Report:

“Recovery Mission Area: The Recovery mission area core capabilities center on helping disaster-affected communities rebuild infrastructure, provide adequate long-term housing, preserve community services, restore health and social services, promote economic development, and restore natural and cultural resources. Until recently, the Recovery mission area lacked the national structure and cohesive planning approaches employed across other mission areas, such as Protection and Response. As seen in the summary of SPR results (Figure 1), three of the four lowest-assessed capabilities fall within the Recovery mission area—Economic Recovery, Natural and Cultural Resources, and Housing. States indicated that they were less than halfway to achieving their desired capability levels in these three critical recovery functions. The recent release of the National Disaster Recovery Framework (NDRF) is an important milestone in enhancing the national approach to long-term recovery. The NDRF defines how federal agencies will more effectively organize and operate to promote effective recovery and support states, tribes, and other jurisdictions affected by a disaster.” Extract from page iii!

Comment by Wi9lliam R. Cumming

November 28, 2012 @ 2:32 pm

Actually during most of my civil service the DoJ trial division mentioned above was called the “Lands and Natural Resources Division”!

Comment by Donald Quixote

November 28, 2012 @ 2:59 pm

It is not about the money, it is about the money (and votes)………………………….

—————————————————-

Stafford Act Declarations 1953-2011: Trends and Analyses, and Implications for Congress

Congressional Research Service (August 31, 2012)

The discussion is followed by an analysis of each type of declaration that has been issued, and
denied from 1953 to 2011. The analysis concludes that:

• from 1953 to 2011 major disaster declarations averaged roughly 35 per year. However, the number of declarations being issued each decade has been
increasing, particularly in last two decades. From 1990 to 1999 there was an average of 46 major disasters declared each year, and from 2000 to 2009, there was an average of 64 per year;

• from 1974 to 2011 there has been an average of 8.4 emergency declarations issued each year. Emergency declarations have also increased in the past two decades. From 1990 to 1999 there was an average of 6 emergency declarations issued each year, and from 2000 to 2009, there was an average of 15 issued per
year;

• from 1970 to 2011 the average number of Fire Management Assistance Grants issued was 19. From 1990 to 1999 the average issued each year was 21. This average grew over the next decade to 54;

• most disaster declarations are for flooding, storms, hurricanes, and winter storms;

• most emergency declarations are for snow related events, followed by hurricanes, droughts, and fires;

• there is a slight increase in the number of declarations issued in presidential election years, but the number is not significant enough to draw a decisive conclusion regarding their use as a political tool.

The analysis is followed by a discussion concerning the possible causes for the increase, including federal policy changes, increases in severe weather incidents, population growth, and development.

http://www.fas.org/sgp/crs/homesec/R42702.pdf

Some other recent interesting CRS related reports:

Federal Disaster Recovery Programs: Brief Summaries (August 10, 2012)

http://www.fas.org/sgp/crs/homesec/RL31734.pdf

Congressional Primer on Major Disasters and Emergencies (May 23, 2012)

http://www.fas.org/sgp/crs/homesec/R41981.pdf

Federal Stafford Act Disaster Assistance: Presidential Declarations, Eligible Activities,
and Funding (June 7, 2011)

http://www.fas.org/sgp/crs/homesec/RL33053.pdf

Considerations for a Catastrophic Declaration: Issues and Analysis (July 6, 2011)

http://www.fas.org/sgp/crs/homesec/R41884.pdf

Federal Disaster Recovery Programs: Brief Summaries (March 14, 2011)

http://www.fas.org/sgp/crs/misc/RL31734.pdf

Comment by Philip J. Palin

November 28, 2012 @ 3:12 pm

Quin and Bill, Thanks for the detailed and substantive input. A reductionist interpretation might be: A Declaration — alone — is worth about as much as the paper on which it is written. My churlish mood this morning was prompted in part by a concern that in some circumstances a Declaration might actually have negative value.

Our times seem especially inclined to hyperbole. We (I) overstate, over-simplify (see immediately above), and constantly operate on a kind of over-drive. There was probably some accounting reasons that made sense to add my county to the Virginia total in order to generate truly needed support for elsewhere (and probably help pay for damages to the local middle school gym). Governor Cuomo is working to maximize what he can generate to address very real needs both immediate and long-term. In each case — and many other cases — spreadsheets are generated that, while not untrue, are certainly less than rigorous. I’ve done it too. But along the way expediency is trumping thinking… again and again and again.

Meanwhile I was on a teleconference earlier today where a major jurisdiction reported having difficultly staffing what is needed to simply administer the multiple disasters and emergencies that they currently have in effect. Among other implications: expertise that might be applied to strategic tasks is deployed to more spreadsheeting.

I am increasingly concerned that the biggest threat to solving our most critical challenges is all the “noise” that makes it difficult to reasonably focus on the key problems.

Evidently the churlishness continues.

Phil

Comment by William R. Cumming

November 28, 2012 @ 3:51 pm

Well one key loss on Coney Island was to the very famous Nathan’s of Hotdog fame.

Emphasis on local hires is a statutory mandate for those employed in Stafford Act activities. Perhaps unemployed police, fire service, and public safety types can be introduced to EM. After all FEMA now headed for 1/2 decade by former Fire Chiefs.

And Phil, given your location perhaps a standby generator operating not on diesel or gasoline but propane is in order.

Comment by Donald Quixote

November 28, 2012 @ 4:32 pm

Has your county and state truly exhausted their capabilities for the response or is it about recouping their limited funding, during challenging financial times, utilized to respond to the incident? There have been some interesting articles and papers regarding this topic. If you do not adequately prepare, you are automatically exhausted and require a Stafford Act declaration. Unfortunately, this may be a shrewd financial plan, but does not plan well for the future.

Comment by Money and money and more money....

November 30, 2012 @ 5:27 am

Great article – all about monies and votes these days and as we truly become even further indebted and just broke for this Wh and the Senate will continue to print our beloved into justa historical note, the monies will eventually be our demise as this “charade” will during times of real need leave us all standing in the cold!

God Bless you all in your numerous ideas in making an effort to utilize your experience and share your perspective, however we are morally and financially broke and this “Chicago city street slicker” and his dedication to the ideals held by Marxist and socialists and his mentors, Frank Marshall, Bill Ayers, Hussein Obama, Ungor, Said and others…well, his – whispers – to the “KGB Putinites” are head loudly and very soon, right after the first of the year, tens of thousands of lay-offs and a certain recession and eventual Depression and calamity for whether a liberal or conservative, despite how bright and articulate you are, it is Fredwrick Douglas who addresses the woes we confront not only during emergency crisis at the hands of Mother Nature’s wrath, but:

“Find out just what People will submit to, and you have found the exct amount of injustice and wrong whcih will be imposed upon them; and these will continue until they are resisted with either words or blows, or with both” -

God Bless America!

It is no longer about the emergency crisis and how we will address for shortly w/budget deficit to spiral with all intent of this WH to some $20 trillion and a WH which Congress should hold in – breach of faith – towards citizen and soldier – treason – “I Shout Treason and Shame on You I Say” in sitting back and just watching the “Benghazi Massacre” – How dare you?

Christopher Tingus
PO Box 1612
Harwich, MA 02645 USA
chris.tingus@gmail.com