Homeland Security Watch

News and analysis of critical issues in homeland security

July 2, 2013

Where The Heck’s My Dec?

Filed under: Congress and HLS,Disaster,Legal Issues — by Christopher Bellavita on July 2, 2013

The post for Tuesday, July 2, 2013 was removed at the author’s request.

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14 Comments »

Comment by William R. Cumming

July 2, 2013 @ 1:15 am

Thanks Quin! A great post and while wiling away some time in the Berkshires away from some of my records and unable to provide more detail. President Carter actually had the temerity to try for a 50-50 split in disaster outlays which ended in a statutory minimum of 75% federal contribution and with the 25% STATE share waivable by the President. A detailed study of waiver policy and circumstances has yet to be accomplished by anyone in or outside of government and the actual history of waivers.

What many fail to realize is that the Disaster Relief Act of 1974 [Public Law 93-288] wasnot totally replaced by the Robert T. Stafford Act [Public Law 100-707] but more complicated repealed in part, suplemented in part, and revised in part. Many sections of both statutes and later additions and substractions have never been supplemented by regulations, although if issued such regulations are subject to notice and comment rulemaking even though the implementation is largely through financial incentives in the form of grants to the STATES and grants are formally exempted otherwise from notice and comment rulemaking under the APA [Adminstrative Procedure Act]! Any regulation so issued is waivable by the President once adopted.

And the discretion of the President to declare is totally discretionary and see for example Kansas v. US [citation forgotten]!

Oddly perhaps in at least 3 instances with Congressional pressure funding from the DRF has occurred with no declaration ever issued.

So what is the importance of this mishmash of policy and statutory guidance and discretion.

The current system is long broken but few have the skills or competence to understand why. Many OMB Directors have been personnally involved in reviewing and approving or restricting specific damage survey reports and outlays from the DRF [Disaster Relief Fund].

Because of the restrictions of the deliberative process exception the disaster declaration packages have never been subject to FOIA and even GAO has been given access only on a restricted and sanitized basis.

The usual question of course is whether disaster relief politically administered? A silly question since all federal programs, functions, and activities are politically managed. It is just that disaster relief is the only Presidentially triggered grant program on a routine basis.

Citizens and residents of the USA have been denied adequate command and control and speed of response however for all events that may in fact be subject to a declaration. Why again?

TBC!

Comment by William R. Cumming

July 2, 2013 @ 1:53 am

Let’s do some history! The 1989 Exxon Valdex oil spill and the BP GOM disasters were never declared disasters. Perhaps some explanation can be accomplished by accessing my Janurary 2009 letter to the Editor of the Natural Hazards Observer explaining the why no declaration of the first event above.

And fighting over the cost share and funding of disasters has long been subject to negotiation even whilel Rome burns. Hurricane Andrew is one of policital significance to American history since the Florida Governor a Democrat and a federal Republican Administration in 1992 argued over cost share even while response was delayed. Oddly the abundance of aid in Andrew that showed up once the political signigicance of Florida was fully reflected on caused President George H.W. Bush to win Florida even while the delayed response helped defeat him nationally.

You can almost eliminate the many books written that argue that George H.W. Bush loss of Florida caused him to lose the national election because that fundamental flaw in the research behind the books is simply not accurate and reflects badly on a generation of researchers on disaster issues and policies.

Another fundamental flaw in the research on disasters is the notion that FEMA was created by Executive Order. It was not but instead by Reorganization Plan No. 3 of 1978 that was implemented in part by two key Executive Orders. EO 12148 bringing in the disaster relief programs, functions, and activities by delegation from the President by virtue of its issuance in July 1979!

Oddly there is still no official position on whether either the Reorganization Plan No. 3 of 1978 or O 12148 are still in effect even on a partial basis despite the enactment of the Homeland Security Act of 2002!

Well FEMA still cites both the Plan [which has the force and effect of a statute] and the EO in many of its submissions to Congress and writings.
And even the vaunted CRS seems not to understand the significance.

But as detailed in the Letter to the Editor referenced above FEMA is not the only player on disaster declarations. And in fact as there has never been a declaration of emergency or disaster for riot and civil disorder, although the LA Riots were declarated for FIRE,DoJ, the Treasury Department, and OMB have a huge role in the disaster declaration process.

Perhaps more later perhaps not. Always remember no Director of FEMA while independent or General Counsel was so foolish to assign Bill Cumming full time to disaster programs, functions, or activities, but only when the proverbial S___T Hit the FAN to defend FEMA from either total or partial destruction by the forces of evil wherever they might exist. One example of course was the extensive and expensive effort to prepare for a core-melt nuclear power station accident at TMI in 1979 although that incident/event was never declared.

Oh! Did I mention that the George H.W. Bush Administration took the position that without statutory revision, the problems identified in Hurricane Andrew response could never be remedied. Of course no such revision has even occurred throught the three administrations that followed.

AND DISCLSOURE: October 1st of this year I will have been retired 14 years from FEMA. In that time FEMA has invited me in or called me only once. The subject being a fastbreaking core melt accident at a nuclear power station. FEMA now with NRC has its off site nuclear power regulations under review for the first time in a comprehensive fashion in 32 years since first adoption. See FEMA docket 2012-0026!

I told FEMA when asked by a now retired FEMA senior attorney that neither FEMA, NRC, or the STATES was prepared for a fast breaking accident and certainly there was no defined trigger on the FRERP although I long recommended a formal trigger at GENERAL ALERT and the regs as issued in 44 CFR and 10 CFR were silent on the fast breaker.

And Quin note! The on the record opinion of FEMA while independent was that the Stafford Act had NO repeat no application to a coremelt accident. This was reflected in the President’s Report on a Catastrophic Nuclear Accident issued in I believe 1993 in response to a statutory mandate. And that position then reversed by issuance of an NRC document with FEMA concurrence numbered something like NUREG 1347 or NUREG 1437! Neither report or documents being signed off by me or anyone else that I know in the then independent FEMA OGC offices.

Well have fun all. Just remember the uncertainty of federal disaster relief remains a core policy drive on many other federal programs, functions, and activities and justifications for their existence and to pick just one out of the hat try the NFIP [National Flood Insurance Program] codified at 42 USC Sections 4001 and following.

And of course there are principles of statutory construction that apply such as Congress knows its own mind [which it does not]; statutes should be construed if possible not to conflict; and additional words purport additional meaning.

Oh and CRS has never done a report on the FRERP or REP! Nor really has GAO!

And the separate negotiation of the FEDERL-STATE agreements in each disaster slows down the response. I have suggested in my writings 100% federal share for declared disasters the first 90 days in order to avoid delays. This still leaves open when will if ever will the President declare a disaster! And for the next 180 days a 90-10 federal state sharing and after that total of 220 days a formal agreement on cost share for the formal recovery meaning those measures taken that will have a useful life of 3-5 years or more.

Comment by William R. Cumming

July 2, 2013 @ 2:03 am

And of course while it might well take years to prepare an OLC formal publically issued opinion on the interplay if any between the STAFFORD ACT and the Price-Anderson Act is long overdue.

Both the DHS GC and the NRC GC should be called to testify under oath before Congress on this issue and hopefully long before the USA’s version of FUKASHIM Dai Ichi occurs.

Comment by William R. Cumming

July 2, 2013 @ 2:07 am

And if asked I would state that FEMA has no authority to respond to riots and civil disorders under either the STAFFORD ACT or any other authority. DHS may have but no one knows because its role in such incidents/events has yet to described in writing or provided by public analysis.

Comment by William R. Cumming

July 2, 2013 @ 9:03 am

The first Homeland Security Strategy [July 2002]; the Homeland Security Act of 2002 [November 2002?]; and HSPD-5 all called for a merger of major response plans. The existing Federal Response Plan had been reissued in revision in 1999 and a copy of that document on the FAS/FEMA page.

Now of course we have FRAMEWORKS not plans. But I would argue that we have no idea whether any particular plan has a trigger point or whether it can be used absent a Presidential disaster declaration or emergency declaration! Why? Because no one cares that response is slowed down and people are injured or die and more property destroyed than necessary.

I always argued that the FEDERAL RESPONSE Plan could be utilized as an organizational plan even absent a declaration. Not sure now with the Stafford Act ending up as the primary authority for federal response planning but of course not the only plan witness the BP disaster.

Some rice bowls might get broken if the NSC and HSC straightened out this situation and reduced uncertainty. But it would require hard work. That seems to be absent as the federal government largely has moved into being primarily designed to respond rather that think through what can be thought through in advance.

And of course Congress largely lobotomized unless the lobbyists tell them to do something.

Again when the Senate goes Republican in 2014 hoping a new permanent committee on Homeland Security and Disaster poldisho

Comment by William R. Cumming

July 2, 2013 @ 9:17 am

CONTINUED: a new permanent Joint Committee on Homeland Security and Disasters!

ALWAYS REMEMBER THAT UNDER THE CURRENT COMMITTEE ARRANGEMENTS THE OVERSIGHT OF KEY STATUTES HOUSED IN DHS ARE NOT UNDER THE OVERSIGHT OF COMMITTEES LIKE THE PERMANENT COMMITTEE OF HOMELAND SECURITY IN THE HOUSE–EXAMPLE THE ROBERT T. STAFFORD ACT!

THIS MAKES NO SENSE!

Comment by William R. Cumming

July 2, 2013 @ 11:15 am

What you see is what you get, maybe?

OCC of FEMA has published a new comprehensive booklet incorporating the language of 42 USC Section 5101 and following replacing the earlier work horse the 2007 edition.

But the Stafford Act is long overdue for comprehensive revision. Some might like a statute that is divided into specific language concerning prevention, protection, preparedness, mitigation, response and recovery.

Others might like a version that breaks down the Act into financial assistance to States and their local governments, technical assistance to the same, thcPreparen

Comment by William R. Cumming

July 2, 2013 @ 11:23 am

CONTINUED: the disaster roles of other federal agencies and departments [OFAs] and whether when they have legal authority to conduct the action they must also exhaust all their appropriations under that authority before requiring a Mission Assignment from FEMA.

And certain miscellaneous language in Stafford Act should be reviewed for modification and/or repeal or updating. One such provision is the UnConstitutional Loyalty Oath provision in Stafford for all involed in administration and recipient of disaster funding or salaries or whatever that carries over from the old Civil Defense Act, [Public Law 920 of the 81st Congress] and long ago opined by DoJ as NOT Constitutional.

Comment by William R. Cumming

July 2, 2013 @ 3:00 pm

Did I mention that OMB for over 4 decades has had a faction that believes most disaster outlays reward States and their local governments for their own negligence perhaps even gross negligence? Jim Jordan and Susan Tanaka were two of that group! Both were FEMA budget examiners at OMB!

Comment by William R. Cumming

July 3, 2013 @ 8:45 am

Of course the removal of a post prompts another comment. FEMA officialdom often incompetent and fearful of independent analysis of any kind during my 20 years from 1979-1999 even failed to learn from official reviews such as that conducted by the then General Accounting Office and now the General Accountability office.

Strangely in the two major instances in which FEMA officialdom had done nothing wrong but were fearful they had done something wrong I was called in from my post as the Associate General Counsel for Litigation to try and repair the suspected or actual damage.

This all traces back to the fact that FEMA is an administrative not regulatory agency although some of its effort is masked as formal regulation but this is NOT Commerce Clause regulation of private entities or regulation to formally protect the health and safety of the PUBLIC and private property.

The first example involved the development and implementation of FEMA’s role in the National Security State that dominates US FP and culture in the decades conducted so far of the so-called American Century that began in August 1945. A long story and probably of no interest except its outlines are contained in the operation of the NSC authorized EMPB [Emergency Preparedness Mobilization Board] established by Presidential memorandum; NSDD-47 [available on the FAS/FEMA page and the homepage of the Vacation Lane Blog] and NSDD-188 and finally E.O. 12656 as originally issued.

The second involves the Shoreham and Seabrook Nuclear Power Station NRC administrative law licensing hearings.

Even when NAS [national academy of science] reports were issued on FEMA programs, functions, and activities such recommendations as they contained were largely ignored.

In recent years the capstone position in the FIRE SERVICE has been the Director or Administrator of FEMA positions. The Administrator of the USFA [United States Fire Administration] and Superintendent of the Fire Academy are of course also of significance. But only the Administrator position has Washington clout and is significant to the politics of the USA and its government and its democratic principles.

I regret Quinn Lucie felt obliged to remove his post and I hope he and others found my comments of some utility.

Comment by Philip J. Palin

July 3, 2013 @ 12:36 pm

Quin:

One Illinois boy to another, I very much regret the removal of your thoughtful, balanced, insightful post. It was a discerning analysis. Discern and discreet share the same Latin root. I have the sense someone determined your comments were not, however, sufficiently discreet. If so, they are wrong. But you may have decided it was not worth the brouhaha. More evidence of discretion. I am glad to have saved it before it disappeared. Best wishes.

Phil

Comment by William R. Cumming

July 3, 2013 @ 1:26 pm

And of course my post retirement rants meaningless now as when they reflected the depths of my belief in EM and bureaucratic infighting that was conducted by those who wanted to or were in control but only so they could do almost nothing while receiving a federal paycheck. Both parties can be condemn for the quality of their appointees but by fluke over the objections of the WH personnel office, including John Carey later GC of FEMA, James Lee Witt became a Clinton success story for many reasons. First, James Lee was willing to admit what he did not know or know how to do and had others to help him do somethings even if not always the right thing.

The real proof of my many comments over FEMA leadership is that FEMA’s biggest fights were over its desire to do nothing, including oddly not helping the President and WH. Why of course is always a product of the times, and the character of the individuals involved.

But my proof of my analytic framework is in the roughly one dozen times that DoJ intervened or opined on the Presidential authority vested in FEMA it supported wide Presidential discretion and FEMA’s authority to conduct the action that prompted the inquiry or review of DoJ and most specifically it Office of the Legal Counsel [OLC}! Not once did FEMA achieve victory over its position to do nothing or almost nothing.

But I did have fun in my career and still do so.

Comment by William R. Cumming

July 3, 2013 @ 2:55 pm

P.S. I still believe the President gets the FEMA he/she wants but not necessarily what is needed.

My concept of a highly technically competent FEMA did perhaps not reflect the vision of others. But in brief FEMA should help in prevention; protection; mitigation of disasters not by adopting policies that promote disasters or the outlays of disaster funds. Although admittedly that is the politically easier course. The Sandy outlays exemplify in the end reward of STATES and their local governments that allowed marshes to be developed, dunes to be destroyed, access and development of barrier islands and riverine and other sensitive coastal areas and largely to help insulate those who conducted and profited from their development from their mistakes.

And Congress is culprit also. The largely experimental NFIP is controlled by the Banking Committees not the Science Committees. As an example.

While complaining of massive and rigorous oversight by Congress FEMA has largely been sheltered from the storm by Congress. Mother NATURE does not grant variances and Climate Change may well be just the latest example of asteroids or solar flares or manmade hazards that will make past disasters look like child’s play. Perhaps not.

Comment by William R. Cumming

July 3, 2013 @ 2:58 pm

And saw OKLAHOMA last night in a live performance at the Colonial Theatre in Pittsfield, MA! Wonderful youth, energy, and wonderful voices and dancing.

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