Homeland Security Watch

News and analysis of critical issues in homeland security

March 13, 2014

The 21st Century Stafford Act

Filed under: Congress and HLS,Preparedness and Response,Recovery,Resilience — by Philip J. Palin on March 13, 2014

Today’s post is authored by a member of the homeland security enterprise who would prefer to not be named. The post reflects the views of the author and does not necessarily reflect the views of any particular federal agency or the Federal Government.

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In January, a bipartisan group of congressional legislators from Illinois introduced a bill entitled the Fairness in Federal Disaster Declarations Act of 2014. A few days later, Illinois’ senators would introduce the same bill in the Senate. The ostensive purpose of these bills is to bring fairness to rural communities when competing for federal disaster declarations by altering FEMA’s disaster declaration regulations.

The problem is no President has ever delegated the right to decide disaster declarations to FEMA and Congress has limited the President from establishing disaster declaration criteria based upon arithmetic formulas or a sliding scale based on income or population. Even if this bill would become law tomorrow, it almost certainly would not change the framework of disaster declarations and only make changes to unbinding regulations. So why would these members go through such an effort?

The answer may be the lack of serious discourse about the primary legal framework for federal disaster preparedness and relief, the Stafford Act, over the last 25 years. While the Stafford Act has been amended several times since 1988, outside of the addition of mitigation authorities in 2000, there has been no substantive review of the utility, incentives and disincentives put into motion by its overall structure and purpose. The end result is Congress’ knowledge has atrophied. The nation’s citizens have been deprived of a chance to understand the issues surrounding disaster relief and preparedness that would allow them to set practical expectations for the types and amount of disaster assistance they can expect after a disaster. This includes the lack of debate about how the Stafford Act may, or may not, have affected the role and responsibility of different levels of governments to prepare for disasters and provide disaster relief. Nor has there been a serious debate about the balance between public sector and private sector relief efforts.

Beginning in 1950, the first four decades of the modern era of federal disaster relief saw periods of spirited review about these issues. Four times this evaluation led to significant restructuring of the statutory configuration of federal disaster preparedness and relief, almost always expanding the assistance available through the Federal Government. However, with the exception of emphasizing and incentivizing mitigation in 2000, there has not been a serious study of the utility of the structural foundations for federal disaster preparedness and relief.

This has deprived the nation of the serious study of what disaster preparedness and relief efficiencies need to be reinforced and what deficiencies should be rectified. It has also prevented citizens from understanding how much disaster assistance they should expect and the level of risk and responsibility they should be prepared to assume. We have avoided questions of responsibility for disaster relief from their different levels of government, the private sector and non-profits. While the nation has seen several major disasters since 1988, the debate after each of these events never led to the serious and episodic reappraisal seen in the previous four decades. We are now nearly 26 years past the last serious evaluation of the responsibilities for disaster relief.

It may be that the answers to these questions have changed little over these last 26 years but how do we know? What are the issues that might be debated? The obvious ones are perpetual: The division of responsibility and risk between public and private, federal and state, state and local and the individual responsibility of citizens. The debate over these issues will always ebb and flow with the direction of the country but are the factors that influence this debate static? What about the dramatic changes in technology over the last 26 years? With the profusion of resources and capabilities to individual citizens, much of it relayed through the computer in every pocket, the smart phone, should citizens shoulder more responsibility (and risk)?

Does our increasing reliance on interconnectedness, much of it delivered through the private sector, provide a new role for federal disaster relief to critical infrastructure? How can we harness the capabilities of the newest generation of disaster relief organizations to provide a more efficient and nimble disaster relief response than their predecessors? Are there incentives or resources which could be provided by the Federal Government to incentivize these organizations without impeding their innovation and competences?

Now may also be the time to look back and see where the Stafford Act has created pockets of efficiencies and inefficiencies. What mitigation efforts have, or have not, incentivized states and local governments to become more prepared? Should we, and could we, reward local and state governments who shoulder more of the responsibility for mitigation efforts? Are preparedness efforts better funded locally or more broadly? How do we support growing inter and intra-state regional governments who fall outside traditional federal-state relationships for disaster relief? Should the Federal Government encourage new forms of intergovernmental cooperation? How do we weigh the responsibilities of states – does the Federal Government more actively force them to tax to their risk, or leave it up to them?

Could the Federal Government provide incentives for states to push more responsibility for disaster relief to lower levels of government? Is this wise? What should be done about the clearly anachronistic Cold War era Title VI of the Stafford Act? A decade later, does the relationship between the Stafford Act and the Homeland Security Act need to be clarified? Could the debate over the relationship between these two statutes lead to streamlined Congressional oversight for disaster relief?

We learn by talking, by debating, by the marketplace of ideas. It’s time for a serious and spirited discourse if for no other reason than to reeducate ourselves and reestablish consistent expectations and responsibilities for disaster preparedness and relief.

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20 Comments »

Comment by E. Earhart

March 13, 2014 @ 5:47 am

Peter Drucker emphasized the importance of continually challenging one’s assumptions. He said “Make yourself capable of doing this by building organized abandonment into your system. By asking yourself every few years:

If we weren’t doing what we now do, would we want to start doing it? And if the answer is ‘probably not,’ then maybe it isn’t the right thing to do anymore.”

Comment by John Comiskey

March 13, 2014 @ 5:51 am

Comprehensive Stafford Act-A HLS Imperative

Disaster response is Messy 2.0

Who pays? How much?
What are the responsibilities and authorities of HLS Enterprise members (Whole Community)?
What is the role of risk assessment and risk management?
How might disaster mitigation-response-recovery be de-politicized? (LOL 2.0)

Stafford Act 2.0 needs to answer core questions above. This blogger uses issue-attention cycle to explain emergence of Stafford Act. See: http://www.nationalaffairs.com/doclib/20080527_197202804upanddownwithecologytheissueattentioncycleanthonydowns.pdf

See also: Stafford Act Trends @ https://www.fas.org/sgp/crs/homesec/R42702.pdf

Homeland Security Act of 2002 (as amended), Patriot Act (as amended), and the Intelligence Reform Act of 2004 (as amended) comprehensively transformed/emerged the HLS Enterprise.

Fairness in Federal Disaster Declarations Act of 2014 Bill would require rulemaking by FEMA “to address considerations in evaluating the need for public and individual disaster assistance, and for other purposes.” The rules would apply to both public and individual assistance programs. See: http://www.gpo.gov/fdsys/pkg/BILLS-113s1960is/pdf/BILLS-113s1960is.pdf

Fairness in Federal Disaster Declarations Act should do more. The Act should:

Identify authorities and responsibilities of HLS Enterprise
Identify and communicate HLS/disaster preparedness aspirations and expectations
Identify a HLS Bill of Rights AND a Bill of HLS Responsibilities. See Emerson’s Self-Reliance: http://www.math.dartmouth.edu/~doyle/docs/self/self.pdf

Comment by Michael Mealer

March 13, 2014 @ 12:36 pm

Very thoughtful essay.
“It has also prevented citizens from understanding how much disaster assistance they should expect and the level of risk and responsibility they should be prepared to assume.”
This is a real stepping off point in promoting a thorough and effective review. The general public has limited understanding of the concepts of disaster area, disaster plan, and disaster relief. I think much of the electorate feels safe when news broadcasters announce that an elected official makes a disaster declaration. The expectations for the standard of response and cost and timeline for returning to the previous status quo are assumed as adequate or inadequate on the sliding scale of news coverage and sound-bit drama.
I love the term ‘fairness’ in the title of the bill. Inherently implies that the legislation remedies an unfair situation. The discourse is needed to determine what is fair. Getting to that point needs to start with citizens understanding that fair is not moving target at the response end as described in incident reports, but fair is what will work best considering the issues described by the author or the essay.

Comment by William R. Cumming

March 13, 2014 @ 4:55 pm

Great post and comments IMO! But I guess few have read my comments on this blog since its inception in December 2005!

So here goes! What organizations and groups and governmental entities and NGO’s benefit from lack of study of disaster relief and the Stafford Act?

!. The President who by triggering a declaration can pretend he/she is governing!

2. FEMA by implementing the Stafford Act the way it does perpetuates assisting those listed hereafter!

3. The Public Works Committees of the Congress that pretends funding disaster relief like an ATM really helps many!

4. The States and their local governments who are rewarded for their negligence sometimes gross negligence in their building code and zoning enforcement and unwise development undermining related areas like environmental issues!

5. The USCOE that pretends just doing Congress’ bidding like pretending they were not responsible for major damages from failed USACOE structural protection works! Repeal the statutory immunity of the USACOE for flood control works.

6. The property/casualty insurers that use the Stafford Act to avoid liability and milk the NFIP for all its worth.

7. FEMA pretending thousands of untrained 12$/hour employees can actually help disaster victims.

The list is endless IMO but the remarkable lack of curiosity even now dregs up my bile.

Reform: First allow suit against the Federal government on the basis that Stafford Act administered in a discriminatory manner.

Second! What other federal programs, functions, activities duplicate Stafford Act?

Comment by William R. Cumming

March 13, 2014 @ 7:01 pm

BTW check out documentary THE ATOMIC STATES OF AMERICA!

Comment by William R. Cumming

March 13, 2014 @ 10:10 pm

I should also mention that FEMA’s 35th birthday arrives April 1st, a lasting joke date selected as a joke unforgiveable by me by OMB budget examiner Jim Jordan.

The core-melt accident at TMI started march 27th! A birthday gift for the infant agency. Even without TMI the President’s Reorganization Study had considered moving REP [radiological emergency preparedness] into FEMA.

Comment by William R. Cumming

March 13, 2014 @ 10:16 pm

In hearings on President carter’s Reorganization Plan No.3 of 1978, Senator William Proxmire of Wisconsin argued that FEMA could well become the government’s ATM [a device largely non-existent at that time] without careful and expert leadership. In the land of the blind the one-eyed man is king. In the land of the pauper he who can access the ATM of the king is the king. Your prediction of a golden fleece for FEMA has proved only too accurate.

Comment by William R. Cumming

March 13, 2014 @ 11:35 pm

The real question for governments at all levels is are disasters whether declared or not largely preventable? Some may answer yes and some NO! Usually relying on ACT OF GOD or some other non-reasoning rationale.

It took decades for fire sprinkler technology to be developed and mandated. The FIRE SERVICE LONG OPPOSED THAT TECHNOLOGY just as it continues to not demand SCBA [self-contained breathing apparatus] for the entirety of the FIRE SERVICE–both professionals and volunteers. And FEMA also fails to really believe in prevention and/or mitigation.

IMO over 80% of declared disasters, excluding drought
and tornadoes, are preventable. Why? They largely involve the built environment.

I once had a one on one with Dr. Edward Teller, PhD. who was on FEMA’s Advisory Board throughout the Reagan Administration. I asked him where he thought humanity would be at the end of the next century? His answer? Mostly underground. IS THAT OUR FUTURE?

Comment by William R. Cumming

March 14, 2014 @ 12:07 am

Perhaps I need to make myself absolutely clear! The declaration by a President is a discretionary act not subject to judicial review. But once declared similarly situated citizens and residents with similar impacts from the disaster should be treated equally. Otherwise it is a denial of the Equal Protection Clause of the Constitution.

SO THAT ONCE DECLARED DISASTER AND EMERGENCY RELIEF IS AN ENTITILEMENT NOT A DISCRETIONARY GRANT! N.B. No General Counsel or Chief Counsel past or present agrees with me! Hey one person right can make a majority.

Disclosure: I never was a subordinate or senior lawyer for the Stafford Act or its predecessor statutes. I was asked frequently on very very short notice to defend FEMA or its predecessor agency’s on positions taken under the disaster legislation to outside organizations or Congress. If this makes no sense to you that is government.

Comment by Donald Quixote

March 14, 2014 @ 8:27 am

I believe that there is another perspective from the development of this bill. There appears to be a perception that the Stafford Act has evolved into a homeland grant program rather than a last resort disaster resource. When the conversation involves fairness and equal inclusion, it shifts the discussion to fair-share rather than support for the prepared few that are truly overwhelmed by the very significant unanticipated incident.

As research has shown, the use of the Stafford Act has greatly increased over the years. As we discuss this important posting, we should also discuss if we are incentivizing the reduction of preparedness to justify the implementation of the act at the earliest point possible. Why utilize our limited resources to prepare when failure is very often rewarded? It is a very shrewd budgeting decision, but a dishonest one. It is not about the money, it is about the money.

Comment by Donald Quixote

March 14, 2014 @ 8:49 am

To the question: Could the Federal Government provide incentives for states to push more responsibility for disaster relief to lower levels of government?

I thought that was already the policy through the Stafford Act, NIMS, NRF and numerous other strategies and policies for many years. The billions of dollars in homeland security grants and other related funding were awarded to those first on the scene to provide this infrastructure and foundation. Unfortunately, we can all become accustomed to the new paradigm of others paying because it is the “right thing” and we do not have the funding. Why ignore free money?

Comment by William R. Cumming

March 14, 2014 @ 9:29 am

FREE DISASTER RELIEF ALWAYS BEATS PREPAREDNESS, MITIGIATION, PREVENTION, AND INSURANCE!

Comment by Michael Mealer

March 14, 2014 @ 9:33 am

Federal funding fail-safe facilitating a philosophy to forgive local fiscal failures and feasibly forecasted disaster fulfillment?

Comment by William R. Cumming

March 14, 2014 @ 11:18 am

Posted comment on FFF on history of Title VI Stafford Act!

Comment by William R. Cumming

March 14, 2014 @ 11:47 am

Note opinion at:

•Use of Stafford Act Authorities in National Security Emergencies, July 19, 1993

http://www.fas.org/irp/agency/dhs/fema/index.html

Comment by William R. Cumming

March 15, 2014 @ 4:38 am

N.B. Two sets of definitions exist in the Stafford Act! Those terms defined in Title VI are superior to those defined elsewhere in the Act.

Comment by William R. Cumming

March 15, 2014 @ 4:57 pm

BTW although the primary delegate organization under the Stafford Act the Administrator FEMA does have some authority vested directly in that position in the Act.

Also the Administrator FEMA could broadly delegate to OFAs [other federal departments and agencies] as opposed to Mission Assignments post disaster!

An example, disaster warnings and predictions should be cross-delegated to NOAA and USGS.

Comment by Donald Quixote

March 19, 2014 @ 12:45 pm

Carper Encourages States to Prepare Applications for Preparedness Grants

By: Homeland Security Today Staff 03/19/2014

Senate Committee on Homeland Security and Governmental Affairs Chairman Sen. Tom Carper (D-Del.) Wednesday highlighted the beginning of the application period for Federal Emergency Management Agency (FEMA) State Homeland Security Program (SHSP) grants.

States seeking preparedness-related grantss must submit their applications to FEMA no later than May 23, 2014. Final grant amounts will be determined by July 25, 2014.

“FEMA’s Preparedness Grants are an important way that states and localities can build their homeland security capabilities,” Carper said. “As last year’s attack at the Boston Marathon and recent extreme weather events like Superstorm Sandy have shown us, you can never be too prepared. I encourage each applicant to review their needs, put together a plan, and apply for these lifesaving grants.”

The SHSP is a series of grants that provide recipients with the funding to build and sustain homeland security capabilities through planning, organizational resources, equipment, training and exercises.

In addition to SHSP grants, FEMA offers a variety of other grants to state, local, tribal governments and nonprofits. They are:

• Homeland Security Grant Program;
• State Homeland Security Program;
• Urban Areas Security Initiative;
• Operation Stonegarden;
• Urban Area Security Initiative Nonprofit Security Grant Program;
• Tribal Homeland Security Grant Program;
• Intercity Passenger Rail (Amtrak) Program;
• Port Security Grant Program; and the
• Transit Security Grant Program

http://www.hstoday.us/single-article/carper-encourages-states-to-prepare-applications-for-preparedness-grants/6daa513c818715ab2ac8782e4c663a33.html

Comment by Donald Quixote

May 16, 2014 @ 1:49 pm

Is federal assistance to states and localities unintentionally creating a disincentive for states and localities to prepare for emergencies and major disasters? Some may argue that federal funding for disaster relief through regular annual appropriations has become entrenched to the point that it has contributed to unintended consequences. For example, it has been argued that some states do not properly fund mitigation measures because there is a presumption that federal funding is virtually guaranteed should an emergency or major disaster occur. Those advocating this position could arguably point out that federal involvement in disaster relief will continue to increase and that in order to be fiscally responsible, changes should be made in the way in which disaster relief is funded. Others may claim the function of the federal government is to help states in their time of crisis. From this perspective, withholding or limiting the amount
of funding a state could receive for an incident would be neglectful of that state’s needs.

http://www.fas.org/sgp/crs/homesec/R43537.pdf

Comment by berbère fleur de macadam

June 2, 2014 @ 5:43 pm

Hum êtes vous sûr de ce que vous écrivez ??

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