Homeland Security: Standards for State and Local Preparedness

Order Code RL31680

CRS Report for Congress

Received through the CRS Web

Homeland Security:

Standards for State

and Local Preparedness

Updated October 8, 2003

Ben Canada

Analyst in American National Government

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Homeland Security:

Standards for State and Local Preparedness

Summary

Some Members of Congress, as well Administration officials and other

observers, believe that state and local governments should be held to established

standards for terrorism preparedness. They argue that standards could improve the

capability of first responders to deal with terrorist attacks, particularly those

involving weapons of mass destruction (WMD).

Preparedness standards can be categorized by such attributes as scope,

development process, and user community. They can include broad performance

goals, as well as more specific operational procedures and equipment specifications.

Traditionally, nongovernmental organizations develop preparedness standards,

sometimes with the participation of federal agencies. Since the terrorist attacks of

September 2001, however, a number of federal agencies have initiated efforts to

develop preparedness standards, among which are the Federal Emergency

Management Agency (FEMA, now in DHS), National Institute of Standards and

Technology (NIST), and Center for Disease Control and Prevention (CDC).

The 107th Congress addressed the issue of preparedness standards, particularly

in its debate on the Department of Homeland Security (DHS). Initial versions of the

DHS bill (H.R. 5005 and S. 2452) took broad approaches, authorizing the new

department to coordinate and develop standards for first responders. The

Administration appeared to support such an approach in its National Strategy for

Homeland Security. Ultimately, however, the enacted version (P.L. 107-296) took

a narrower approach, instructing the department to develop standards for a limited

number of functions, mostly related to response equipment and technology.

In the 108th Congress, a number of bills addressing first responder programs

have included provisions relating to preparedness standards. In September 2003, the

Senate Governmental Affairs Committee reported S. 1245, which, among other

things, would require the DHS Secretary to develop National Performance Standards

for state and local homeland security efforts. Other bills addressing preparedness

standards include H.R. 105, H.R. 1449, H.R. 3158, H.R. 3227, and S. 321/H.R. 545.

There are a number of policy approaches Congress could take, should it desire

to address preparedness standards.

Encouraging the development and

implementation of standards could give states and localities discretion in adapting

standards to their unique preparedness needs, but may not lead to nationwide

adoption. Federal assistance could be conditioned on meeting set standards, but this

could limit recipients’ flexibility with federal funds. Mandatory regulations is

another approach that arguably could insure adherence to set standards, but would

likely raise a number of federalism issues. On the other hand, Congress might not

take any action on this issue. Many observers believe that defining a baseline level

of preparedness is a daunting challenge with questionable benefits. Also, some

observers contend that current nongovernmental and federal efforts to develop

preparedness standards are sufficient to meet public safety needs.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Legislation in the 107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Categorizing Preparedness Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

User Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Standardization Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Is A Comprehensive Policy Needed? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Policy Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Maintain the Status Quo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Encourage Development and Adoption . . . . . . . . . . . . . . . . . . . . . . . . 13

Condition Federal Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Promulgate Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Appendix: Examples of Current Standards and Development Activities . . . . . . 23

Nongovernmental Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Federal Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Appreciation is extended to Angela Napili, CRS Information Resource Librarian, for

bibliographic and research assistance.

Homeland Security:

Standards for

State and Local Preparedness

Introduction

Is the United States prepared for a terrorist attack involving a weapon of mass

destruction?1 How will we know when we are prepared? These are some of the

many questions policy makers have been asking about the nation’s homeland security

efforts. State and local first responders, including law enforcement, fire service,

emergency medical service, and hazardous materials personnel, are widely

acknowledged as being an invaluable homeland security resource.2 Their proximity

insures that they almost always will be among the first to arrive at the scene of a

terrorist attack. Some observers believe the implementation of standards for state

and local governments can improve preparedness not only for terrorist attacks, but

for all types of disasters, be they man-made or natural.

Some state and local officials have expressed a desire for national preparedness

standards — authoritative rules, principles, or measures against which the quality,

level, or degree of preparedness can be measured — to guide their efforts in

preparing for disasters generally and for terrorist attacks in particular. Proponents

argue that standards would facilitate improvements in response capability and

intergovernmental coordination, help states and localities identify preparedness gaps,

and promote long-term sustained preparedness. They also contend that standards

could lead to a national baseline of preparedness, against which states and localities

could be held accountable for achieving established goals.3

Preparedness standards could also lead to greater accountability in federal

assistance programs that Congress has authorized to help states and localities better

prepare for natural and man-made disasters. Since September 2001, Congress has

1

For the purposes of this report, a weapon of mass destruction (WMD) is defined as

chemical, biological, radiological, nuclear, or any unconventional device capable of causing

mass casualties.

2

Although there is arguably less consensus on whether public health personnel should be

considered first responders, this report includes public health in the definition.

3

See statements of Woodbury Fogg, Director, New Hampshire Office of Emergency

Management and Amy E. Smithson, Henry L. Stimson Center, in U.S. Congress, House

Committee on Government Reform, Subcommittee on Government Efficiency, Financial

Management, and Intergovernmental Relations, A Silent War: Are Federal, State, and Local

Governments Prepared for Biological and Chemical Attacks?, hearings, 107th Cong., 1st

sess., Oct. 5, 2001.

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significantly increased funding for selected programs that provide training,

equipment, and technical assistance to first responders.4 In early 2003, the Bush

Administration proposed a restructuring of assistance programs that provide funding

to states and localities to prepare for weapons of mass destruction (WMD) attacks.

The 108th Congress has considered this proposal and several others (for more

information on restructuring proposals, see CRS Report RL31475, First Responder

Initiative: Policy Issues and Options, by Ben Canada). Standards could give

Congress and federal agencies a means of gauging the effectiveness of new and

existing preparedness programs.

Some observers, however, believe that standards would provide limited benefits.

The wide range of possible terrorist weapons and tactics, the vast number of potential

targets, and the varying preparedness needs of different communities are just some

of the factors that would complicate the process of defining national preparedness

goals. As one analyst commented, “It is one thing to suggest that an effective

homeland defense system requires a floor — a base level of protection for all

citizens. But defining and securing that floor is a daunting job.”5 Implementing

preparedness standards could also pose a significant financial burden on states and

localities and interfere with current state and local preparedness efforts.

Scope of This Report. This report provides a framework for discussing

preparedness standards, identifies potential elements of a comprehensive federal

policy, and discusses policy approaches that Congress might take in addressing this

issue. This report also includes an Appendix with brief summaries of existing

standards and current activities to develop new preparedness standards. Arguably,

standards can assist in evaluating the effectiveness of the new Department of

Homeland Security, evaluating preparedness grant programs, and identifying

weaknesses in state and local preparedness. It can also aid policymakers in

evaluating an agency’s compliance with the Government Performance and Results

Act (GPRA), which requires federal agencies to measure their own performance.6

Legislation in the 108th Congress. A number of bills have been

introduced into the 108th Congress addressing various aspects of preparedness

standards. In September 2003, the Senate Governmental Affairs Committee reported

S. 1245, the Homeland Security Grant Enhancement Act of 2003. This bill would

instruct the DHS secretary to develop “National Performance Standards” for state and

local preparedness efforts. As a condition of receiving federal funds, states would

have to complete homeland security plans that seek the achievement of the national

4

Descriptions of these and other programs are available in CRS Report RL31227, Terrorism

Preparedness: Catalog of Selected Federal Assistance Programs, coordinated by Ben

Canada.

5

Donald F. Kettl, “Promoting State and Local Government Performance for Homeland

Security,” The Century Foundation Homeland Security Project, June 2002, p. 3. Available

at: [http://www.homelandsec.org/Pub_category/pdf/state_local_gov_perform.pdf], visited

May 12, 2003.

6

P.L. 103-62; 107 Stat. 285.

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performance standards.7 The bill would also create a Homeland Security Information

Clearinghouse that would, among other duties, collect and disseminate information

on voluntary standards for training, equipment, and exercises.8

Other bills introduced in the 108th Congress address preparedness standards,

including:

H.R. 105 — would establish standards for communications

equipment, training, and response capability;

! H.R. 1449 — would authorize a first responder grant program and

establish standards for terrorism preparedness and response,

including training and equipment;

! H.R. 3158 — would establish a Task Force on Standards for

Terrorism Preparedness; developed standards would be used in

determining the needs of states and localities;

! H.R. 3227 — would require DHS to establish emergency

preparedness and response standards, including standards for

training, equipment, and communications systems; States and

localities would have flexibility in meeting national minimum

capabilities;

! S. 321/H.R. 545 — would promote the development of firefighting

technology standards and model mutual aid agreements.

!

In addition to these proposals, Congress emphasized equipment and technology

standards in appropriations legislation. For example, the conference report

accompanying the FY2003 consolidated appropriations act (P.L. 108-7) states:

Standards — The conferees understand the need for minimum performance

standards, testing, and evaluation in the areas of chemical, biological,

radiological, and nuclear (CBRN) protective equipment, as well as voice/data

communications equipment. The conferees, therefore, expect ODP to work

closely with the National Institute of Standards and Technology (NIST) to test,

evaluate, and develop minimum performance standards for CBRN protective

equipment and voice/data communications equipment for first responders.9

The conference report for FY2004 DHS appropriations also addresses standards.

It calls for The Office Science and Technology (OST) within DHS to undertake all

standards development and research for first responder needs. ODP efforts to

develop standards, including those conducted in cooperation with NIST, would be

transferred to OST.10

7

S. 1245, sections 4(h) and (e)(4).

8

S. 1245, sec. 3(c).

9

U.S. Congress, Conferences Committees, 2003, Joint Resolution Making Consolidated

Appropriations for the Fiscal Year Ending September 30, 2003, and for Other Purposes,

conference report to accompany H.J.Res. 2, H.Rept. 108-10, 108th Cong., 1st sess.

(Washington: GPO, 2003), pp. 636-637.

10

U.S. Congress, Conference Committees, Making Appropriations for the Department of

(continued...)

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Legislation in the 107th Congress. Congress addressed preparedness

standards during the second session of the 107th Congress, particularly in its debate

on the Department of Homeland Security (DHS).

Homeland Security Act of 2002. Initial proposals for the DHS considered

by the House and Senate, including H.R. 5005 and S. 2452, would arguably have

given the new department broad authority to develop preparedness standards. The

introduced version of H.R. 5005 proposed the development of guidelines for state

and local response to weapons of mass destruction (WMD) incidents.11 Likewise,

initial versions of S. 2452 called for the establishment of training and equipment

standards.12

The Bush Administration appeared to support a broad approach to developing

preparedness standards in its National Strategy for Homeland Security, issued in July

2002. The Strategy proposed that the DHS seek the “... establishment of national

standards for emergency response training and preparedness.” It specifically called

for equipment standards, a national training program, and a certification program for

first responders.13

As the House and Senate DHS bills progressed toward enactment, however,

their approaches to preparedness standards began to narrow, focusing mostly on

technology and equipment standards. For example, the enacted version of the bill

(P.L. 107-296) instructed the Homeland Security Institute to identify instances in

which common standards could improve the usefulness of equipment used by first

responders.14 It also instructs the Emergency Preparedness and Response Directorate

to develop standards for Nuclear Incident Response Teams.15 The Act also created

within the Justice Department an Office of Science and Technology charged with

developing performance standards for technology used by state and local law

enforcement.16

First Responder Bills. The 107th Congress also addressed preparedness

standards in other homeland security bills. In October 2002, the Senate Environment

and Public Works Committee reported the First Responders Terrorism Preparedness

10

(...continued)

Homeland Security for the Fiscal Year Ending September 30, 2004, and for Other Purposes,

report to accompany H.R. 2555, H.Rept. 108-280, 108th Cong., 1st sess. (Washington: GPO,

2003).

11

H.R. 5005 (introduced at the request of the Administration, June 2002), sec. 301(4).

12

S. 2452 (as introduced, May 2002), sec. 103(a)(3)(F).

13

Office of Homeland Security, National Strategy for Homeland Security, (Washington:

July 2002), pp. 44-45, 54. Available at [http://www.whitehouse.gov/homeland/book/

nat_strat_hls.pdf], visited May 12, 2003.

14

P.L. 107-296, sec. 312(c)(4).

15

P.L. 107-296, sec. 502(2)(A).

16

P.L. 107-296, sec. 232(b)(3). The Act also contains numerous provisions pertaining to

information security standards, which are beyond the scope of this report.

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Act (S. 2664), which would have established the proposed First Responder Initiative

grant program, and would authorize the Federal Emergency Management Agency

(FEMA) to develop preparedness standards. The bill instructed FEMA to “establish

clearly defined standards and guidelines for Federal, State, tribal, and local

government terrorism preparedness and response.” It specifically called for standards

in such functional areas as training, interoperable communications systems, and

response equipment.17 This bill, however, was not considered by the full Senate and

no parallel bill was introduced in the House.

Other Bills. A limited number of other bills introduced in the 107th Congress

addressed preparedness standards. These bills generally addressed one specific

aspect of emergency preparedness, including the following:

H.R. 3176 — established protocols for responding to public health

emergencies;

! H.R. 5441 — proposed the development of terrorism preparedness

standards, including training and response capability;

! H.R. 5461 — established standards for regional response plans; and,

! S. 2862 — promoted the development of firefighting technology

standards.18

!

Categorizing Preparedness Standards

Preparedness standards can be categorized by a number of attributes. This

report categorizes standards by three selected attributes in order to provide a

framework for discussing relevant issues: scope, standardization process, and user

community. These categories are not mutually exclusive, and a particular standard

may fall into more than one category.

Scope. Standards can be established at a macro or micro level. Macro-level

standards are broad performance goals or benchmarks for a state or locality to satisfy.

In the context of emergency preparedness, macro-level standards could establish

performance goals or capability levels for states and localities to achieve and

maintain. Some examples might resemble the following:

States will establish and periodically exercise state-wide mutual aid

agreements;

! State and local hazardous materials response teams will develop the

capacity to effectively respond to WMD attacks; or,

! Local first responders will achieve an “awareness” level of training

to respond to weapons of mass destruction.19

!

17

S. 2664 (as reported), sec. 616(c)(2), 616(c)(5), and 616(c)(6).

18

The Senate Committee on Commerce, Science, and Transportation reported S. 2862, the

“Firefighting Research and Coordination Act,” on Nov. 18, 2002.

19

Adapted from Eric V. Larson and John E. Peters, Preparing the U.S. Army for Homeland

Security (Washington: RAND, 2001), pp. 59, 287. Available at:

(continued...)

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Micro-level standards are specific operational procedures, training

competencies, or equipment specifications that state and local responder units and

first responders themselves must satisfy. There are numerous examples of microlevel standards for first responders (see the Appendix for examples). Nongovernmental organizations, federal agencies, and even state and local governments,

have developed and implemented standards for a wide range of response functions

(e.g., response planning, training, personal protective equipment), and for many

responder groups (e.g., firefighters, emergency medical service, law enforcement,

hazardous materials response). Some specific examples are the National Fire

Protection Association (NFPA) standards for responding to hazardous materials

incidents, including:

NFPA 471 — Recommended Practice for Responding to Hazardous

Materials Incidents;

! NFPA 472 — Professional Competence of Responders to Hazardous

Materials Incidents; and,

! NFPA 1994 — Protective Ensembles for Chemical/Biological

Terrorism Incidents.20

!

User Community. Standards may also be categorized by the particular first

responder community to which they apply. Since the terrorist attacks of September

2001, a number of observers have offered their views on which public safety

communities constitute “first responders.” The Homeland Security Act of 2002 used

the term “emergency response provider,” defining it as “... federal, state, and local

public safety, law enforcement, emergency response, emergency medical (including

hospital emergency facilities), and related personnel, agencies, and authorities.”21

Some observers suggest that there should be no single definition of “first

responder.” Instead, they prefer a flexible approach to identifying public safety

communities as first responders, arguing that the nature of the perceived threat, or the

consequences of a disaster, will determine what resources are needed. A flexible

definition may be suitable for federal preparedness programs, as the Senate

Environment and Public Works Committee indicated in its report on the First

Responder Terrorism Preparedness Act of 2002:

There is broad consensus that any definition of first responders must include fire,

emergency medical service, and law enforcement personnel. As FEMA

implements the [First Responder Initiative], the Agency may need some

19

(...continued)

[http://www.rand.org/publications/MR/MR1251], visited May 12, 2003.

20

Also see NFPA 473 and 1951. NFPA codes relating to hazardous materials response are

available free of charge at: [http://www.nfpa.org/Codes/CodesandStandards/HazMat/

HazMat.asp], visited May 12, 2003.

21

P.L. 107-296, sec. 2(6).

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flexibility to expand the definition of first responders to meet the needs of all

constituents.22

Some observers suggest that, in the context of WMD incidents, public health and

public works personnel should also be considered first responders. While

preparedness standards can be categorized by user community, many standards, such

as those for communications equipment and personal protective equipment, may

apply to all users. Broad performance goals (macro-level standards) could also apply

to all first responders, or to a governmental unit in general.

Standardization Process. At least three different processes can be used to

develop standards — de facto process, voluntary consensus process, and regulatory

process. Each process is a potential means of developing preparedness standards,

and each has potential costs and benefits.

De Facto Process. This is not a structured development process, but, rather,

a process that occurs through daily field operations. De facto standards in emergency

management can develop when first responders, based on their experience and

interaction with other responders, gradually adopt a specific operational procedure,

training competency, or equipment specification. Relying on de facto standards

allows states and localities much discretion in developing and implementing

standards that meet their unique needs. Reliance on operational experience can fail,

however, when appropriate standards are not developed in a timely manner, or in a

manner consistent with formal development processes. This could result from lack

of information, costly development, or minimal perceived benefit.23

Voluntary Consensus Process. Most preparedness standards are developed

through the voluntary consensus process, which typically uses a structured

development process that involves a range of stakeholders. Many nongovernmental

organizations, including the National Fire Protection Association (NFPA), use this

process to play a significant role in developing preparedness standards. Federal

agencies, such as FEMA and the National Institute of Standards and Technology,

traditionally participate in voluntary consensus processes, and when appropriate, may

seek to coordinate the development of preparedness standards. (See Appendix)

Congress endorsed the voluntary consensus process in the National Technology

Transfer Advancement Act of 1995. The Act states that, “To the extent practicable,

all Federal agencies and departments shall use, for procurement and regulatory

applications, standards that are developed or adopted by voluntary consensus

standards bodies.”24 The Act also instructs federal agencies to participate in

standards development activities of voluntary consensus organizations.

22

U.S. Congress, Senate Committee on Environment and Public Works, First Responder

Terrorism Preparedness Act of 2002, report to accompany S. 2664, 107th Cong., 2nd sess.,

S.Rept. 107-295 (Washington: GPO, Oct. 2002), p. 5.

23

U.S. Congress, Office of Technology Assessment, Global Standards: Building Blocks for

the Future, TCT-512 (Washington: GPO, March 1992), pp. 101-103.

24

P.L. 104-113, sec. 12(d)(1); 110 Stat. 783.

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Standards development organizations generally seek to incorporate principles

of due process into the standards development process. Such principles commonly

include openness, balanced participation by stakeholders, consideration of views and

opinions, written procedures, and an appeals process. The American National

Standards Institute (ANSI) advocates these principles in its recommended procedures

for standards development, which many standards development organizations

follow.25 Research has shown that the voluntary consensus process can be effective

when the standards development organization obtains high participation from

stakeholders and facilitates communication among participants.

Lack of

participation, or lack of measurable benefits form participation in standards setting,

can detract from this approach. Standards development organizations must also

adhere to due process principles, otherwise, they might lose support of their

members.26

Regulatory Process. Where authority exists, federal, state, or local

governments may employ a regulatory process to develop and implement standards

in selected functional areas. Governments may use this approach when other

standardization processes are not progressing in a timely manner, or if existing

standards are not adequate. When federal agencies seek to develop standards, they

must meet or exceed statutory requirements for public review and comment.27 The

Hazardous Waste Operations and Emergency Response standard (HAZWOPER) is

an example of a federally mandated standard for first responders (see summary

below). The Occupational Safety and Health Administration (OSHA) and the

Environmental Protection Agency (EPA) promulgated the regulations for

HAZWOPER, specifying training competencies for personnel responding to a

hazardous materials incident.

The regulatory process can facilitate widespread implementation of standards,

since regulatory agencies have legal authority to enforce them. When promulgating

regulations, federal agencies sometimes reference or adopt voluntary standards, thus

making them mandatory. HAZWOPER, for example, contains several references to

NFPA standards for response to hazardous materials incidents. Adopting voluntary

consensus standards for regulatory purposes can arguably lead to greater acceptance

and implementation. On the other hand, this process may be ineffective if the

regulatory agency dominates the standards setting process, if stakeholders believe

they have been excluded, if administrative processes are cumbersome, or if public

goals are not achieved. Regulatory standards may also lose legitimacy over time if

not adequately updated, or if public interest shifts.28

25

American National Standards Institute, ANSI Procedures for the Development and

Coordination of American National Standards (New York: Jan. 2002), pp. 1-8.

26

Office of Technology Assessment, Global Standards, pp. 104.

27

Most procedures for regulatory activity are established in the Administrative Procedure

Act and Executive Order 12866. Federal regulation setting is discussed in CRS Report

RL31207, Federal Regulatory Reform: An Overview, by Gary L. Galemore.

28

Office of Technology Assessment, Global Standards, pp. 104-105.

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Overview of the HAZWOPER Standard

The Hazardous Waste Operations and Emergency Response standard (HAZWOPER) is a

federal regulation issued by the Occupational Safety and Health Administration (OSHA) that

specifies standards for employees responding to a hazardous materials incident, including public

safety personnel. Congress directed OSHA to develop the regulation in Title I of the Superfund

Amendments and Reauthorization Act of 1986 (SARA, P.L. 99-499). Congress originally

authorized the development of the standard in Title I of the Comprehensive Environmental

Response Compensation Liability and Recovery Act of 1980 (CERCLA, 42 U.S.C. 9601). After

some years, however, Congress found OSHA’s actions on the issue of hazardous materials

response to be insufficient, and, thus, called for the standard in 1986.

HAZWOPER, which took effect in March 1990, addresses several elements of hazardous

materials response. For example, it identifies necessary elements of an emergency response plan,

such as lines of authority, site security, and evacuation. It also establishes different levels of

training competency, such as Awareness, Operations, Technician, Specialist, and Incident

Commander. Regulations specify the gradually increasing knowledge, skills, and abilities the

responder must possess at each level. HAZWOPER also sets standards for personal protective

equipment, decontamination, refresher training, and medical surveillance of first responders.

A number of HAZWOPER provisions were based on NFPA standards for hazardous

materials response. The HAZWOPER standard has served as the basis of some federal agencies’

response practices, including the Environmental Protection Agency and the U.S. Coast Guard.

Source: 29 CFR 1910.120; U.S. Department of Labor, Occupational Safety and Health

Administration, “Inspection Procedures for the Hazardous Waste Operations and Emergency

Response Standard,” CPL 2-2.59A (Washington: April, 1998).

Is A Comprehensive Policy Needed?

A comprehensive federal policy on preparedness standards could address at least

three issues. First, it could address the development and maintenance of

preparedness standards that meet national preparedness goals. Second, it could

promote state and local adoption of standards. And third, it could address the balance

between the “all-hazards” approach and terrorism-oriented preparedness.

Development and Maintenance. A number of observers have cited the lack

of performance goals (macro-level standards) for state and local preparedness as a

major obstacle to better preparing the nation for terrorism. Observers have frequently

cited a 2000 study by Richard Falkenrath, which argues,

This lack of broad but measurable objectives is unsustainable. It deprives policymakers of the information they need to make rational resource allocations, and

renders program managers unable to measure genuine progress. It also suggests

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endlessly escalating program expenditures, since there is no logical end point to

a process whose only goal is to improve from current standing.29

In December 2002, the Gilmore Commission echoed this argument, stating that the

federal government must develop a comprehensive approach to measuring the

preparedness of states and localities. The commission’s fourth annual report stated

that “... without a comprehensive approach to measuring how well we are doing with

the resources being applied at any point in time, there will be very little prospect for

answering the question ‘How well prepared are we?’”30

Currently, there is a wide array of micro-level standards for general emergency

preparedness. An argument could be made that the current array of standards,

developed mostly by nongovernmental organizations, is sufficient to meet the

preparedness needs of states and localities. Many of these existing standards may be

modified to apply to terrorism preparedness, including standards for incident

command, response to hazardous materials incidents, and some personal protective

equipment.31 While a significant number of preparedness standards exist, many

observers argue that new standards must be developed to address the potential scale,

duration, and range of hazards presented by terrorist threats.32 For example, they

have called for standards for terrorism preparedness, and, specifically, WMD

response plans, WMD response simulations and exercises, interoperable

communications infrastructure, bioterrorism preparedness activities, and response

29

Richard A. Falkenrath, “The Problems of Preparedness: Challenges Facing the U.S.

Domestic Preparedness Program,” ESDP Discussion Paper ESDP-2000-05, John F. Kennedy

School of Government, Harvard University, Dec. 2000, p. 15, available at:

[http://bcsia.ksg.harvard.edu/BCSIA_content/documents/The_Problems_of_

Preparedness.pdf], visited May 12, 2003. Also see generally, U.S. General Accounting

Office, Homeland Security: Responsibility and Accountability for Achieving National Goals,

GAO Report GAO-02-627T (Washington: GPO, 2002); and, Kettl, “Promoting State and

Local Government Performance for Homeland Security.”

30

Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving

Weapons of Mass Destruction (Gilmore Commission), Fourth Annual Report to The

President and The Congress, Dec. 2002, p. 37. Available at: [http://www.rand.org/nsrd/

terrpanel/], visited May 12, 2003.

31

See National Institute of Environmental Health Sciences, Learning from Disasters:

Weapons of Mass Destruction Preparedness Through Worker Training, report of a National

Technical Workshop, (Washington: April 2002), p. 39. Available at:

[http://wetp.org/oldchfiles/awardee_mtgs/spring02/WMDreport.pdf], visited May 12, 2003;

U.S. Federal Emergency Management Agency, Office of National Preparedness, Assessment

of Federal Terrorism Preparedness Training for State and Local Audiences, April 10, 2002,

pp. 44-45.

32

Brian A. Jackson, et. al., Protecting Emergency Responders: Lessons Learned from

Terrorist Attacks, RAND Science and Technology Policy Institute (Arlington: 2002), p. 5.

Available at: [http://www.rand.org/publications/CF/CF176/], visited Dec. 17, 2002.

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equipment.33 (See the Appendix for an overview of existing standards and

development activities.)

Neither the federal government, nor the nongovernmental sector, has a

comprehensive, consolidated program for developing new preparedness standards.

Rather, efforts to develop standards are dispersed among a number of

nongovernmental organizations and federal entities. Since the attacks of September

2001, several observers have identified existing standards as applicable to terrorism

preparedness, or begun developing new standards to address concerns about WMD

attacks. Nearly all nongovernmental and federal efforts focus on developing microlevel standards, such as training competencies and equipment specifications (see

Appendix).

Adoption. In addition to addressing standards development, a federal policy

could also address state and local adoption of preparedness standards. On the one

hand, encouraging or requiring adoption of standards could lead to long-term

sustained preparedness. An independent study sponsored by the Council on Foreign

Relations concluded that, as of one year after the September 2001 attacks, public

emphasis on terrorism preparedness was decreasing. The report asserted that current

homeland security initiatives were “reactive” and encouraged the federal government

to take a proactive approach to preparedness.34 Similarly, a June 2003 report issued

by the Century Foundation also described the typical state approach to terrorism

preparedness as “business as usual.”35 Some observers believe state and local

adoption of preparedness standards should be part of such a proactive approach, since

they could lead to institutionalized and sustained preparedness. As one congressional

witness testified,

The prerequisite for institutionalization is standards, and all of the response

disciplines — fire, police, EMS, hospital care providers — expressed an

abundance of frustration over the absence of standards and protocols to guide

them. Standards command the attention of rescue and healthcare personnel

because they are the backbone of accountability.36

33

Ronald D. Fricker, Jr., Jerry O. Jacobson, and Lois M. Davis, “Measuring and Evaluating

Local Preparedness for a Chemical or Biological Terrorist Attack,” RAND Issue Paper,

2002, available at: [http://www.rand.org/publications/IP/IP217/]; U.S. General Accounting

Office, Homeland Security: Effective Intergovernmental Coordination is Key to Success,

GAO report GAO-02-1011T (Washington: GPO, Aug. 2002), pp. 13-15; “Safeguards

lacking for emergency equipment,” Consumer Reports, Jan. 2003. p. 10.

34

Council on Foreign Relations, America Still Unprepared — America Still in Danger,

Report of an Independent Task Force (New York: Oct. 2002), pp. 12-16, 36.

35

Donald F. Kettl, The States and Homeland Security, Building the Missing Link, Century

Foundation Homeland Security Project (New York: June 2003), p. 4. Available at:

[http://www.tcf.org/publications/homeland_security/kettlpapers/kettlpapers.htm]

36

Statement of Amy Smithson, Henry L. Stimson Center, in House Committee on

Government Reform, hearings , Oct. 5, 2001. Also see Amy Smithson and Leslie-Anne

Levy, Ataxia: The Chemical and Biological Terrorism Threat and the U.S. Response

(Washington: Henry L. Stimson Center, Oct. 2000), p. 301.

CRS-12

On the other hand, a federal policy on preparedness standards might limit state

and local ability to experiment with different approaches to emergency preparedness.

Depending on the policy, states and localities could have difficulty achieving set

standards or adapting federal resources to meet their needs. Establishing a federal

policy would also likely require Congress and federal agencies to periodically reexamine the policy. If this were not done in a timely manner, the policy could cease

to be effective in preparing states and localities for terrorism and other disasters.

All-Hazards Approach. A comprehensive federal policy on preparedness

standards could also affect the traditional “all-hazards” approach to emergency

management.37 This approach, advocated by state and local officials, as well as

FEMA, stresses using existing institutions and plans to respond to all disasters,

including acts of terrorism.38 Some policy makers and observers have expressed

concern that since the terrorist attacks of September 2001, federal emergency

management policies have focused too heavily on terrorism, diverting resources from

preparing for natural disasters, such as floods, hurricanes, and tornadoes.39 The

incorporation of FEMA into the Department of Homeland Security (DHS), and

transfer of existing resources to terrorism preparedness programs, are just two causes

of concern for proponents of the all-hazards approach. The Bush Administration and

others, however, do not believe the recent emphasis on terrorism preparedness will

bring such negative consequences. Specifically with regard to FEMA’s activities, the

Administration emphasized that:

[The DHS] would continue FEMA’s efforts to reduce the loss of life and

property and to protect our nation’s institutions from all types of hazards through

a comprehensive, risk-based, all-hazards emergency management program of

preparedness, mitigation, response, and recovery. And it will continue to change

the emergency management culture from one that reacts to terrorism and other

disasters, to one that proactively helps communities and citizens avoid becoming

victims ....40

If Congress addresses the issue of preparedness standards, an issue could be how

such policies would affect overall federal emergency management policy. The allhazards issue raised in the debate over a homeland security department might also

arise in a debate over preparedness standards. Implementation of standards oriented

solely toward terrorism preparedness might cause concern among proponents of the

37

For more information on the “all-hazards” approach, see CRS Report RL31670, Transfer

of FEMA to the Department of Homeland Security: Issues for Congressional Oversight, by

Keith Bea; and CRS Report RL31490, Department of Homeland Security: State and Local

Preparedness Issues, by Ben Canada.

38

U.S. Federal Emergency Management Agency, Guide for All-Hazard Emergency

Operations Planning, SLG-101, (Washington: Sept. 1996), p. iii. Available at:

[http://www.fema.gov/rrr/gaheop.shtm], visited May 12, 2003.

39

James Lee Witt and Associates, Department of Homeland Security and FEMA

(Washington: 2002), unpublished.

40

Office of Homeland Security, Department of Homeland Security (Washington: GPO, June

2002), p. 11. Available at: [http://www.whitehouse.gov/deptofhomeland/book.pdf], visited

May 12, 2003.

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all-hazards approach. On the other hand, failure to implement such standards could

leave the nation insufficiently prepared for terrorist attacks involving WMD.

Policy Approaches

The 108th Congress could take at least four different approaches to preparedness

standards: 1) maintain the status quo; 2) encourage development and adoption; 3)

condition federal assistance; and 4) promulgate federal regulations. This section

discusses selected aspects of each policy approach, including potential effectiveness,

challenges, consequences, and other pertinent issues.

Maintain the Status Quo. There are a number of reasons why Congress

might not take action on preparedness standards. Some observers suggest that state

and local preparedness is sufficient in its current condition They point to the local,

state, and federal response to the World Trade Center attacks of September 2001 as

evidence of the adequacy of the nation’s response capability. One analysis, for

example, states:

In most respects, the response was similar to what might be expected following

a major natural disaster, such as an earthquake, although the scale and nature of

the World Trade Center disaster likely increased the attraction of outside groups.

The point is simply that a national emergency management system was already

in existence and offered remarkable capacity to respond to the events on

September 11. The system was able to deal with a terrorist disaster.41

Another possible reason for maintaining the status quo is that current standards,

and standards development activities, may be sufficient to meet national preparedness

goals. As discussed above, some nongovernmental organizations and federal

agencies maintain standards that could apply to homeland security efforts. Some of

these institutions are developing new standards that specifically address preparedness

for WMD attacks. (see Appendix for examples)

Some observers suggest the federal government might encourage current efforts

to develop training competencies and equipment standards (micro-level standards),

but not establish broad performance goals (macro-level standards). They argue that

the wide range of possible terrorist weapons and tactics, the countless number of

potential targets, and the varying preparedness needs of different communities are

just some of the factors that would complicate the process of defining national

preparedness goals.

Encourage Development and Adoption. A policy approach of

encouraging nongovernmental organizations and federal agencies to further develop

preparedness standards, and encouraging states and localities to adopt the standards,

would arguably be consistent with the Homeland Security Act of 2002. In the Act

Congress affirmed its commitment to voluntary consensus standards, stating that,

“All standards activities of the Department shall be conducted in accordance with

41

William L. Waugh, Jr. and Richard T. Sylves, “Organizing the War on Terrorism,” Public

Administration Review, Special Edition, Sept. 2002, p. 150.

CRS-14

section 12(d) of the National Technology Transfer Advancement Act of 1995 ....”42

This policy approach would essentially rely on the current system of

nongovernmental and federal standards development using the voluntary consensus

process. States and localities would then have discretion in choosing whether or not

to adopt the standards.

A 1995 National Research Council (NRC) study concluded that the voluntary

standards process is an effective means of meeting public needs, especially when

federal agencies participate in the development process. It noted that while the

voluntary consensus process could be slow, regulatory standards setting by federal

agencies generally took even longer for several reasons: federal agencies may have

limited time and resources; private interests can delay the process through the legal

system; and, agencies face stringent administrative requirements. The NRC further

observed that voluntary consensus standards are often as stringent and demanding as

federal regulatory standards would be. This may be due to private incentives to set

high standards, such as forestalling government regulation, satisfying public

demands, and reducing the risk of liability claims.43

Options for Encouragement. There are a number of ways Congress could

encourage the development of standards. One option would be to coordinate the

standards development activities of entities with the Department of Homeland

Security (DHS). The Homeland Security Act (P.L. 107-296) directed such entities

as the Office of Science and Technology (OST), Homeland Security Institute, and the

Emergency Preparedness and Response Directorate to develop specified types of

preparedness standards, most relating to equipment.44 Some entities relocated into

the new department were developing preparedness standards before the DHS was

created, including FEMA and ODP. The conference report for FY2004 DHS

appropriations calls for OST to undertake all research and development for standards

relating to first responder preparedness.45

Another option would be to have DHS coordinate the activities of non-DHS

agencies that develop preparedness standards. Although the Homeland Security Act

transferred FEMA and ODP to the new department, and instructed the DHS to

conduct some activities pertaining to equipment standards, it did not consolidate into

the DHS many relevant programs.46 Excluded programs include those in the National

Institute of Standards and Technology, Centers for Disease Control and Prevention,

the Justice Department’s National Institute of Justice, and other agencies (see

42

P.L. 107-296, sec. 102(g). The House Science Committee recommended this provision,

stating that it wanted the new department to conform to the voluntary, consensus-based

standards development process, and maintain the private sector’s leading role in developing

standards. See House Committee on Science, “Committee Views on H.R. 5005,” available

at: [http://www.house.gov/science/hot/homeland/committeevws.htm], visited May 12, 2003.

43

National Research Council, Standards, Conformity Assessment, and Trade: Into the 21st

Century (Washington: National Academy Press, 1995), p. 56.

44

P.L. 107-296, sections 232(b)(3) and (b)(4); 312(c)(4); 502(2)(A);

45

H.Rept. 108-280.

46

P.L. 107-296, sec. 232(b)(3), 312(c)(4), and 502(2)(A).

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Appendix). Consolidation of such programs into DHS could result in a

comprehensive approach to preparedness standards, and facilitate coordination with

nongovernmental organizations. The Bush Administration proposed this option in

its National Strategy, calling for the DHS to coordinate standards.47 This was also

proposed in initial versions of the House and Senate DHS bills (H.R. 5005 and S.

2452).48

Another option would be to increase grant funding to nongovernmental

organizations to research and develop preparedness standards. Arguably, this option

would take advantage of the organizations with considerable experience in standards

development. Some organizations are already receiving federal grants for standards

related projects. For example, the CDC, as part of its Centers for Public Health

Preparedness program, funded a project at the Mailman School of Public Health at

Columbia University to develop training competencies for public health workers

responding to bioterrorism.49

Any initiatives to develop preparedness standards might also emphasize the

involvement of state and local interests. Their involvement in the development

process could lead to greater acceptance of new and existing standards among state

and local public safety agencies. This would be consistent with the National Strategy

for Homeland Security, which calls for improved intergovernmental coordination

among federal, state, and local governments, and among the public safety agencies

within each level of government.50 The U.S. General Accounting Office has

emphasized this point in a series of reports on homeland security: “Given the need

for a highly integrated approach to the homeland security challenge, national

performance goals and measures may best be developed in a collaborative way

involving all levels of government and the private sector.”51

Is This Enough? Were Congress to establish nationwide preparedness goals

in legislation, or if the DHS advocated such goals, encouraging voluntary adoption

of standards might not necessarily result in the desired level of preparedness. States

and localities might not adopt voluntary standards for a variety of reasons, such as

financial cost, disruption of current practices, assertion of state sovereignty, or little

perceived benefit. This potential outcome is illustrated by the inconsistent use of the

Incident Command System (ICS) across the nation. Although many government

agencies and nongovernmental organizations recommend using ICS to coordinate

emergency response, a survey by the National Emergency Management Association

showed that ICS was not used consistently by the states. Some states mandate the

47

Office of Homeland Security, National Strategy for Homeland Security, p. 11.

48

H.R. 5005 (as introduced at the request of the Administration), sec. 301(4); S. 2452 (as

reported June 24, 2002), sec. 103(a)(3)(F).

49

The competencies are available at: [http://www.nursing.hs.columbia.edu/

institute-centers/chphsr/btcomps.html], visited May 12, 2003.

50

51

Office of Homeland Security, National Strategy for Homeland Security, p. 13.

U.S. General Accounting Office, Homeland Security: Effective Intergovernmental

Coordination Is Key to Success, GAO Report GAO-02-1011T (Washington: GAO, Aug.

2002), p. 13.

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use of ICS for all emergencies, while others mandate it only for selected types of

emergencies, and still other states do not use it.52

Condition Federal Assistance. A more assertive policy approach would

be to adopt emergency preparedness standards that states and localities must achieve

as a condition for receiving federal assistance for terrorism preparedness. Congress

has a long tradition of conditioning federal grants in legislation.53 For example,

Congress requires environmental impact statements to be completed for any federally

funded project “... significantly affecting the quality of the human environment ....”54

Federal agencies may also place conditions on the awarding of assistance. The

Domestic Preparedness Program, administered by the Office for Domestic

Preparedness, for example, requires recipients to complete a needs assessment before

receiving funds, and equipment grants may only be used to purchase approved

equipment.55

Conditioning preparedness assistance would require Congress or federal

agencies to establish performance goals (macro-level standards) and possibly more

specific operational and technical standards (micro-level standards). Some observers

suggest that attaching such conditions to federal assistance is necessary to compel

states and localities to achieve a minimum level of preparedness. As one analyst

wrote:

The intergovernmental system has long been built on a clear bargain: the federal

government provides benefits (whether money or flexibility) in exchange for

state and local governments’ achievement of prescribed standards. In federal

homeland security grants to state and local governments, therefore, the critical

issue is not so much whether the federal government can — and should — define

standards. It is what those standards ought to be — and how much flexibility

state and local governments ought to be allowed in meeting them.56

Options for Conditioning Grants. The approach taken to conditioning

preparedness grants would directly impact the flexibility states and localities have

with the use of federal funds. If the federal government required grant recipients to

adhere to established operational and technical standards (micro-level standards) they

would likely have less discretion in meeting standards and using federal funds. This

could force some states and localities to alter their existing emergency response

plans, replace equipment, and increase training, which could be a significant financial

burden, even with federal assistance. Sparsely populated communities, or those

perceiving themselves at little risk of a terrorist attack, might decline federal funds

52

National Emergency Management Association, “Trends in State Terrorism Preparedness”

(Lexington, KY: Dec. 2001).

53

The practice of conditioning federal grants in legislation is further discussed in CRS

Report RL30778, Federal Grants to State and Local Governments: Concepts for Legislative

Design and Oversight, by Ben Canada.

54

P.L. 91-190; 83 Stat. 852.

55

See ODP web site: [http://www.ojp.usdoj.gov/odp/].

56

Kettl, Promoting State and Local Government Performance, p. 10.

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to avoid having to adhere to specific standards. Requiring grant recipients to meet

operational and technical standards, however, would arguably be an effective way of

getting states and localities to adopt federally approved standards. Given the

currently high level of public concern over terrorism preparedness, states and

localities reluctant to accept federal funds with attached conditions might be more

likely to accept the preparedness funds.

It is possible that federal establishment of performance goals (macro-level

standards) could strike a balance between the competing needs for flexibility and

accountability. Some performance measurement analysts suggest that governmentestablished performance goals can hold states and localities accountable for results.

If the goals are achieved, arguably, the federal government could allow flexibility in

state and local activities.57 This principle could apply to federal assistance for

terrorism preparedness — Congress or federal agencies could establish preparedness

goals, and states and localities would have discretion in determining how to achieve

those goals. Some observers have called upon the federal government to take such

action. One congressional witness testified that, “While we acknowledge the varying

needs of individual communities and the diverse threat levels each may or may not

confront, we do not think that it is unreasonable to establish a baseline of readiness

that all communities should strive to attain ....”58

S. 1245, as reported by the Senate Governmental Affairs Committee, would take

the conditioning approach. The bill would require DHS to develop National

Performance Standards for state and local preparedness efforts. States would have

to incorporate these standards into their state homeland security plans and report

annually on their progress in achieving the standards. S. 1245 instructs the DHS

secretary to base (in part) the national performance standards on the objectives that

states must address in their homeland security plans, but, otherwise, gives discretion

to the DHS secretary in developing the standards.59

Concerns in Conditioning Grants. As with the encouragement approach,

conditioning federal assistance may not be adequate to meet congressional goals.

States and localities might not participate in federal preparedness programs with

stringent standards. Establishing preparedness goals also brings up the challenge of

defining preparedness. Initiatives to establish national preparedness goals would

likely have to consider a wide array of factors, including risk analyses,60 state and

local response capabilities, and financial cost (including long-term maintenance costs

57

U.S. General Accounting Office, Block Grants: Issues in Designing Accountability

Provisions, GAO Report GAO/AIMD-95-226 (Washington: GPO, 1995), pp. 10-13. Also

see, Harry P. Hatry, Performance Measurement: Getting Results (Washington: The Urban

Institute Press, 1991), p. 171.

58

Statement of Paul M. Maniscalco, Past President, National Association of Emergency

Medical Technicians, U.S. Congress, House Armed Services Committee, Military

Procurement Subcommittee, Crisis Response Capabilities to Domestic Acts of Terrorism

Related to Weapons of Mass Destruction, hearings, 107th Cong., 2nd sess., March 5, 2002.

59

60

S. 1245, sec. 4(h).

For more information on risk analysis, see CRS Report RS21348, Risk Assessment in the

President’s National Strategy for Homeland Security, by Robert Buschmann.

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for equipment and training). Such challenges could complicate the process of

defining a preparedness baseline and reduce the potential usefulness of such a

definition.

Conditioning federal assistance might also require Congress and federal

agencies to consider a system of rewards and penalties for grant recipients. Grant

programs may include rewards for meeting or exceeding standards, such as increased

funding or regulatory flexibility. They may also set penalties for failing to meet

standards, such as reduced funding or possible termination of the grant. Such a

system would not only affect the level of accountability, but also the level of public

safety. If a state failed to achieve a preparedness standard, would it receive less

funding? If yes, how would the reduction in federal assistance affect the state’s level

of preparedness? Would states that achieve standards receive more federal

assistance? If so, on what basis would more assistance be justified? These are just

some questions that could be raised.

Promulgate Federal Regulations. Were Congress to assign a high priority

to the development and implementation of preparedness standards, it could direct

federal agencies to promulgate federal regulations. Arguably, incorporating

preparedness standards into regulations could facilitate widespread compliance, since

regulations are enforceable under law. On the other hand, developing and enforcing

such regulations would likely present several challenges, including possibly basic

legal issues.

A number of federal agencies enforce regulations addressing public health and

safety, including the Environmental Protection Agency (EPA), National Highway and

Traffic Safety Administration (NHTSA), and Occupational Safety and Health

Administration (OSHA).61 The HAZWOPER standard, mandated by Congress in the

Superfund Amendments and Reauthorization Act of 1986, is an example of a

regulatory standard for first responders.62 Congress has recently used this policy

approach to address infrastructure security issues. The “Public Health Security and

Bioterrorism Preparedness Act of 2002,” passed by Congress in June 2002, required

community water systems serving more than 3,300 people to complete a vulnerability

assessment and develop an emergency response plan. The legislation also lists some

specific guidance for states and localities to follow.63

Options for Promulgating Regulations. Were Congress to take a regulatory

approach (or condition grants), it might have to consider whether federal agencies

would develop new standards or adopt existing standards that are currently voluntary.

61

National Research Council, Standards, Conformity Assessment, and Trade, pp. 16-17.

62

The Act instructed the Secretary of Labor to promulgate regulations for the health and

safety of workers engaged in hazardous waste operations. Congress required the regulations

to address site analysis, training, medical surveillance, protective equipment, and emergency

response, among other activities. P.L. 99-499, sec. 126; 100 Stat. 1690.

63

P.L. 107-188, sec. 401. See also CRS Report RL31294, Safeguarding the Nation’s

Drinking Water: EPA and Congressional Actions, by Mary Tiemann, and CRS Report

RS21026, Terrorism and Security Issues Facing the Water Infrastructure Sector, by Claudia

Copeland and Betsy Cody.

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Federal agencies might develop new preparedness standards through the federal

rulemaking process if current standards used by states and localities do not satisfy

congressional goals for preparedness, or if there is a perceived urgent need for new

standards.64

Should Congress instruct the DHS, or another federal agency, to establish

preparedness standards in regulations, participation from standards developing

organizations would likely be an issue. The Administrative Procedure Act (APA)

sets minimum requirements for public participation in the federal rulemaking

process, and agencies have discretion to grant additional procedural rights.65

Congress could instruct federal agencies developing preparedness standards to open

the rulemaking process to interested stakeholders, including the many

nongovernmental organizations that develop standards. A more open federal

rulemaking process could lead to greater credibility in the first responder community,

and give states and localities more flexibility in meeting local preparedness needs.

There are also reasons why federal agencies might incorporate existing

voluntary standards as federal regulations.

First, some nongovernmental

organizations, such as the NFPA, have more experience in developing preparedness

standards. Such organizations have the necessary expertise and resources, and are

familiar with standards development processes. Second, it would be consistent with

the congressional policy established in section 102(g) of the Homeland Security Act

of 2002, which affirms the practice of federal agencies adopting voluntary consensus

standards for regulatory purposes (when practicable).66 Nongovernmental

organizations generally use the voluntary consensus approach, applying principles of

due process, which could increase the credibility of federal regulations in the first

responder community. This approach could also afford states and localities more

flexibility in adapting to local preparedness needs, although it would be premature

to reach a conclusion at this preliminary stage of policy development.

Because states and localities may take vastly different approaches to satisfying

regulations, Congress would likely have to consider how much flexibility regulations

would afford states and localities, and how federal agencies would enforce the

regulations. The establishment of Local Emergency Planning Committees (LEPCs)

by the states illustrates the various ways in which congressional mandates can be

applied. The Emergency Planning and Community Right-to-Know Act of 1986

instructed each state to create a State Emergency Response Commission, which, in

turn, created a Local Emergency Planning Committee (LEPC).67 Although the

LEPCs were designed to prepare communities for chemical accidents, states and

localities have come to use them for a diverse range of functions. Some LEPCs focus

64

Office of Technology Assessment, Global Standards, p. 104.

65

5 U.S.C. 551 et seq. For an overview of the APA, see “Administrative Procedure Act”

in CRS Report RL30795, General Management Laws: A Selective Compendium.

66

67

P.L. 107-296, sec. 102(g). Also see P.L. 104-113, sec. 12(d)(1); 110 Stat. 783.

P.L. 99-499, sec. 301, sec. 303; 100 Stat. 1729. For more information, see CRS Report

RL30798, Environmental Laws: Summaries of Statutes Administered by the Environmental

Protection Agency, coordinated by Martin R. Lee.

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only on chemical accidents, whereas others focus on all potential hazards facing a

community. The committees also have shown various levels of activity and

capability; some have ongoing projects and interactions with the community, while

others exist in name only.68 A similar pattern could arise if federal agencies

incorporated preparedness standards into regulations.

Tenth Amendment Issues. Under certain circumstances, imposing federal

mandates on states may raise Tenth Amendment issues.69 The Tenth Amendment

provides that “powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively, or to the

people.”70 The Supreme Court has interpreted this amendment to prohibit the federal

government from “commandeering” state legislatures or executive branch officials

to implement federal programs. This does not mean, however, that state activities

may not be directly regulated by the federal government. The Court has made a

distinction between constitutional “substantive regulation” and unconstitutional

“commandeering.” The former occurs when a generally applicable law is applied to

state activities, while the latter occurs when the federal government mandates how

a state government promulgates or executes laws regarding its citizens.71

So, how does the Tenth Amendment limit the federal government from setting

federal standards for state or local preparedness? First, it is important that mandated

federal regulations not attempt to affect the relationship between a state and its

citizens. For example, concerns have been raised regarding civil liability for

emergency personnel who cross state lines, as the legal immunities for emergency

68

U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response,

“The Role of Local Emergency Planning Committees (LEPCs) and Other Local Agencies

in the Risk Management Program of Clean Air Act (CAA) Section 112(r)” (Washington:

March 1998). Available at: [http://www.epa.gov/swercepp/pubs/rmp-imp/lepc_rpt.html],

visited May 12, 2003. Also see Michael K. Lindell and Marna J. Meier, “Effectiveness of

Community Planning for Toxic Chemical Emergencies,” Journal of the American Planning

Association, Spring 1994, pp. 222-234.

69

Discussion of the Tenth Amendment was contributed by Kenneth R. Thomas, American

Law Division, Congressional Research Service. For more information on the Tenth

Amendment, see CRS Report RL30315, Federalism, State Sovereignty and the Constitution:

Basis and Limits of Congressional Power.

70

For example, in New York v. United States, the Congress had attempted to direct states

to develop legislation on how to dispose of all low-level radioactive waste generated within

the state. The Court found that although the Congress had the authority under the Commerce

Clause to regulate low-level radioactive waste, it only had the power to regulate the waste

directly, not to direct the states to promulgate regulations. Similarly, in Printz v. United

States, 521 U.S. 898 (1997), the Court found that the Brady Handgun Act, which required

state and local law enforcement officers to conduct background checks on prospective

handgun purchasers within 5 business days of an attempted purchase, was an unlawful

“commandeering” of state executive branch officials.

71

The Court held in Reno v. Condon that the Driver’s Privacy Protection Act of 1994, which

regulates the sale of personal information gathered from persons seeking drivers licenses,

was substantive regulation, not commandeering. The Court made this distinction in Reno

because the state was not being directed on how to regulate its citizens, but rather on how

to treat information which had been elicited from those citizens. 528 U.S. 141 (2000).

CRS-21

personnel that may exist in one state may not be honored in the courts of another

jurisdiction. However, if the federal government mandated that all states provide

immunity to emergency personnel from other states, this might be seen as an

interference between a state and its citizens who had previously been authorized to

seek civil damages. Consequently, this kind of federal mandate might raise Tenth

Amendment concerns.

Another Tenth Amendment concern, not yet addressed by the Supreme Court,

is whether legislation may be directed specifically at states. As noted, it is

constitutional for states to be subjected to federal laws of general applicability. For

instance, if a state is engaged in the handling of hazardous materials, it is subject to

the previously mentioned Hazardous Waste Operations and Emergency Response

standard (HAZWOPER).72 However, this standard is applicable to both public and

private employees who handle hazardous waste. It would be unusual for the federal

government to impose federal regulations on an activity, but limit its application to

states, and to do so could result in constitutional challenges.73

Other Concerns. Establishing and enforcing mandatory regulations for

emergency preparedness would likely raise other federalism issues. For example,

states and localities might argue that federal preparedness regulations would present

an unfunded mandate. The “Unfunded Mandates Reform Act of 1995” (UMRA)

established procedures intended to limit Congress and federal agencies from

imposing requirements on states and localities without providing funds to pay for the

cost of compliance.74 The law, however, does not prohibit legislation or regulations

that are unfunded (or under-funded), and permits exemptions for national security

needs.75 Congress may find that the threat of terrorism justifies mandating standards.

Dissenting states, however, may use the judicial review procedures laid out in

UMRA to challenge any regulations as unfunded mandates.76

Interference with current emergency management practices might also be an

issue. States may oppose federally created standards that are more stringent than

current standards, thus preempting state and local regulations. More stringent

regulatory standards could pose a significant burden, since equipment may need to

be replaced, training retaken, and facilities modified. State and local officials have

created response plans and established intergovernmental partnerships to address

their unique needs with their available resources. Some states might strongly oppose

72

29 C.F.R. 1910.120.

73

In Reno v. Condon, an additional challenge was made to the Driver’s Privacy Protection

Act because it only focused on the handling of information which had been obtained by

states. However, because the Court in Reno determined that the regulation in question

actually affected both state governments and private resellers of such information, the Court

reserved the question as to whether a law which only regulated state activities would be

constitutionally suspect. 528 U.S. 141.

74

P.L. 104-4; 109 Stat. 48. For more information, see CRS Report RS20058, Unfunded

Mandates Reform Act Summarized, by Keith Bea and Richard S. Beth.

75

2 U.S.C. 658a. Also see 2 U.S.C. 1503.

76

2 U.S.C. 1571.

CRS-22

such regulations, arguing that, among other things, terrorism-focused regulations

would divert emergency management resources away from other public safety

concerns, such as preparedness for reoccurring natural hazards.

Conclusion

Issues related to preparedness standards may be raised as Congress oversees the

implementation of the new Department of Homeland Security, evaluates federal

assistance programs, and assesses the nation’s preparedness for possible terrorist

attacks. Should it address preparedness standards, Congress would face a number of

challenges. Among these would be deciding on which policy approach to take in the

development of standards and their adoption by states and localities, in a context that

fully addresses possible legal issues. Such policy approaches as encouragement,

conditioning grants, and promulgating regulations have costs and benefits that could

be considered in the legislative process.

CRS-23

Appendix:

Examples of Current Standards and Development

Activities

This appendix briefly describes selected nongovernmental organizations and

federal agencies that are developing new terrorism preparedness standards, or

maintain standards that may be used for terrorism preparedness. It is not a

comprehensive listing, but a selection of examples pertinent to the scope of this

report. Nearly all new initiatives focus on micro-level standards, including

operational procedures, training competencies, and equipment specifications.

Nongovernmental Organizations.77

National Fire Protection Association (NFPA). Arguably, the most active

standards developing organization for the first responder community is the NFPA.

ANSI has accredited the NFPA as a standards developing organization, indicating

that association’s procedures include due process requirements. Many of NFPA’s

efforts address fire safety and prevention, but also address a number of standards that

apply to terrorism preparedness. NFPA currently has several standards for the

management and organization of emergency management agencies, such as NFPA

1600, the “Standard for Disaster/Emergency Management and Business Continuity

Programs.” It also maintains many specific operational and equipment standards for

responding to hazardous materials incidents that may apply to terrorism

preparedness, including the following:78

NFPA 471 — Recommended Practice for Responding to Hazardous

Materials Incidents;

! NFPA 472 — Professional Competence of Responders to Hazardous

Materials Incidents;

! NFPA 473 — Professional Competence of Emergency Medical

Responders to Hazardous Materials Incidents;

! NFPA 1951 — Protective Ensemble for Urban Search and Rescue

Operations; and,

! NFPA 1994 — Protective Ensembles for Chemical/Biological

Terrorism Incidents. 79

!

77

This section does not discuss nongovernmental organizations that seek to accredit public

safety agencies, such as the Commission on Fire Accreditation International (CFAI),

Commission on Accreditation of Law Enforcement Agencies (CALEA), and Joint

Commission on Accreditation of Health Organizations (JCAHO). Although these

organizations develop preparedness standards, their focus is on general service

improvement, not specifically terrorism preparedness.

78

79

For more information on these codes, see the NFPA web site: [http://www.nfpa.org].

NFPA codes relating to hazardous materials response are available free of charge at:

[http://www.nfpa.org/Codes/CodesandStandards/HazMat/ HazMat.asp], visited May 12,

2003.

CRS-24

National Association of County and City Health Officials (NACCHO) and

Association of State and Territorial Health Officials (ASTHO). These

organizations, and others, are presently working with the Centers for Disease Control

and Prevention (CDC) to identify and define the core capacities needed by state and

local public health systems to prepare for bioterrorism.80 These capacities will

address such public health functions as surveillance, laboratory identification,

communication, and mobilization. This effort, known as the Bioterrorism

Preparedness and Response Program, also seeks to build a consensus for the

identified capacities and determine priorities for state and local improvements.81

NACCHO and ASTHO, as well as other related nongovernmental organizations, also

participate in other standards setting activities that are sponsored by the CDC,

including the National Public Health Performance Standards Program (discussed

below).82

American National Standards Institute (ANSI). In February 2003, ANSI

established the Homeland Security Standards Panel with a mission “to catalog,

promote, accelerate and coordinate the timely development of consensus standards

... and communicate the existence of such standards appropriately to governmental

units and the private sector.” More specifically, the panel is attempting to identify

and address gaps in existing preparedness standards and facilitate collaborative

efforts among various standards developing organizations. At the time of this

writing, membership on the panel includes dozens of private companies, trade

associations, and governmental agencies from the federal and state levels of

government.83

Federal Programs.

Federal Emergency Management Agency (FEMA). FEMA is presently

using existing standards, and seeking to develop new ones, to better prepare states

and localities for all disasters, including terrorist attacks. Arguably, the most

significant is the Emergency Management Accreditation Program (EMAP), which

FEMA developed in coordination with the National Emergency Management

Association (NEMA). This voluntary accreditation program allows states to assess

their own capabilities compared to a comprehensive set of standards (called the

“EMAP Standard”) that address nearly all emergency management functions. The

functions are arranged into 13 categories: 1) laws and authorities; 2) hazard

identification and risk assessment; 3) hazard mitigation; 4) resource management

planning; 5) direction, control and coordination; 6) communications and warning;

80

Other participating organizations include the Association for Professionals in Infection

Control (APIC) and the Association of Public Health Laboratories (APHL).

81

For more information on this program, see the NACCHO web site:

[http://www.naccho.org/project63.cfm], visited May 12, 2003.

82

For more information on preparedness, see CRS Report RL31719, An Overview of the

U.S. Public Health System in the Context of Bioterrorism, by Holly Harvey.

83

For more information, see ANSI web site: [http://www.ansi.org/

standards_activities/standards_boards_panels/hssp/overview.aspx?menuid=3], visited May

12, 2003.

CRS-25

7) operations and procedures; 8) logistics and facilities; 9) training; 10) exercises,

evaluations and corrective action; 11) crisis communications, public education and

information; and, 12) finance and administration. FEMA believes that EMAP can

serve as a catalyst for state and local governments to enhance their emergency

management capabilities, and adhere to recognized preparedness standards.84

FEMA’s Office of National Preparedness (ONP) is also undertaking standards

development activities. Among other programs, ONP is presently implementing a

National Capability Assessment Program that includes a comprehensive baseline

assessment of the capabilities of state emergency management programs. One goal

of the program is to compare existing capabilities to established preparedness

standards to determine where federal assistance is most needed.

Office for Domestic Preparedness (ODP). The ODP, currently in the Justice

Department, focuses exclusively on preparing states and localities for terrorist

attacks. The office, which will be transferred to the Border and Transportation

Security directorate of the new Homeland Security Department, applies standards to

some of its assistance programs. ODP’s equipment grants program, for example,

only allows recipients to purchase equipment that has been evaluated and approved.85

The selected equipment was identified by the InterAgency Board for Equipment

Standardization and InterOperability (discussed below).

In response to the perceived threat from WMD attacks, ODP developed a

compilation of basic guidelines for state and local first responders. The guidelines

address such responder communities as law enforcement, fire service, EMS,

hazardous materials, and public works. While ODP explicitly states that the

guidelines are not official standards, the document may serve as a source for future

federal efforts to develop standards for WMD response.86

National Institute of Justice (NIJ). The NIJ, within the Justice Department,

conducts several programs to develop equipment standards. Arguably the Institute’s

best known standards program is AGILE, which seeks to develop interoperability

standards for communications equipment used by law enforcement agencies.87 The

NIJ has also issued standards for types of equipment used by law enforcement and

other first responders, including equipment for personal protection, detection, and

decontamination. It is also conducting several “Critical Incident Technology

Programs” that research procedures and equipment used in response to terrorist

attacks and other critical incidents. These projects address such areas as urban search

84

For more information on EMAP, see:[http://www.emaponline.org].

85

For more information on this program, see ODP web site: [http://www.ojp.usdoj.gov/odp/

grants/equipment.htm], visited May 12, 2003.

86

U.S. Department of Justice, Office for Domestic Preparedness, Emergency Responder

Guidelines (Washington: August 2002). Available at: [http://www.ojp.usdoj.gov/odp/docs/

EmergencyRespGuidelinesRevB.pdf], visited May 12, 2003.

87

See AGILE web site: [http://www.agileprogram.org/], visited May 12, 2003.

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and rescue technology requirements, bomb disposal techniques, and incident

command systems.88

Centers for Disease Control and Prevention (CDC). The CDC is presently

undertaking a number of standards development activities in coordination with

several nongovernmental organizations. The CDC’s National Public Health

Performance Standards Program (NPHPSP) seeks to develop standards for state and

local public health systems. The stated goal of the program is, “To improve the

practice of public health by providing leadership in research, development, and

implementation of science based performance standards.” The NPHPSP is designed

to enable state and local officials, as well as policy-making bodies, to assess the

overall quality of service, including preparedness for bioterrorism.89

The CDC administers the Centers for Public Health Preparedness program

(CPHP), in which it partners with academic institutions to develop training programs,

and undertake other efforts, to improve public health preparedness. While standards

development is not among the primary goals of this program, some institutions are

seeking to develop competencies for public health officials, which could be applied

to preparedness efforts.90 For example, in response to the perceived threat of

bioterrorism, the CDC is funding a project at the Mailman School of Public Health

at Columbia University to develop a set of competencies for public health workers

responding to bioterrorism.91

The CDC has also partnered with other organizations to produce operational

guides intended to provide state and local public health officials with a blueprint for

preparing for bioterrorism. Standardization is not an explicit goal of these

documents, but they effectively serve as common guidelines for officials to follow.

Examples of such documents include the Bioterrorism Readiness Plan: A Template

for Healthcare Facilities and Planning Guidance for State Public Health Officials.92

InterAgency Board for Equipment Standardization and InterOperability

(IAB). The Justice Department created the IAB in 1998. Its stated mission is to “...

establish and coordinate local, state, and federal standardization, interoperability, and

responder safety to prepare for, respond to, mitigate, and recover from any incident

by identifying requirements for Chemical, Biological, Radiological, Nuclear or

Explosives (CBRNE) incident response equipment.” The IAB seeks to involve

federal agencies, as well as state and local governments, in the development of

standards for a range of equipment needs, including interoperable communications,

88

The NIJ web site is: [http://www.ojp.usdoj.gov/nij/], visited May 12, 2003.

89

For an overview of the NPHPSP, see the CDC web site:

[http://www.phppo.cdc.gov/nphpsp/] and National Association of County and City Health

Officials web site: [http://www.naccho.org/project48.cfm], visited May 12, 2003.

90

For more information on this program, see the CDC web site: [http://www.cdc.gov/

programs/bio9.htm], visited May 12, 2003.

91

The competencies is available at: [http://www.nursing.hs.columbia.edu/institutecenters/chphsr/btcomps.html], visited May 12, 2003.

92

At: [http://www.bt.cdc.gov/HealthProfessionals/index.asp], visited May 12, 2003.

CRS-27

personal protective gear, detection, decontamination, and medical equipment.93 The

Office for Domestic Preparedness (ODP) uses the IAB’s list of approved equipment

to determine what equipment grant recipients may purchase.

The IAB designated the Office of Law Enforcement Standards (OLES) in the

National Institute of Standards and Technology (NIST) as “executive agent” for its

efforts.94 The OLES, among other activities, develops equipment standards and

operating procedures for using equipment. As directed by the IAB, several OLES

projects directly relate to terrorism preparedness, such as developing standards for

biological and chemical protection, personal protective equipment, detection

equipment, and respiratory equipment.95

Interoperable Communications Programs. There are several federal

programs focusing on interoperable communications. Agencies seeking to establish

or coordinate standards include the Federal Communications Commission, National

Telecommunications and Information Administration, Defense Department’s Office

of Spectrum Analysis, Justice Department’s National Institute of Justice, the

Treasury, and FEMA. While each program may have distinct goals, they generally

address issues of spectrum management and interoperable equipment. The programs

address interoperability not only among state and local first responders, but also

among federal agencies, and among officials in different levels of government.96

Project SAFECOM, a new initiative administered by FEMA, may be the most

well-known federal initiative to develop interoperable communications standards,

despite being relatively new. SAFECOM’s long-term goals are to achieve

nationwide federal-to-federal interoperability; federal-to-state/local interoperability;

and state/local interoperability. The project will begin with a “gap analysis” to study

the status and needs of states and localities. Program managers expect to produce a

menu of communications equipment that will apply to federal assistance programs.97

93

See the IAB web site: [http://www.iab.gov/].

94

For more information on the NIST, see CRS Report 95-30, The National Institute of

Standards and Technology: An Overview, by Wendy Schacht.

95

See the OLES site: [http://www.eeel.nist.gov/oles/welcome.html], visited May 12, 2003.

96

For more information, see CRS Report RL31375, Meeting Public Safety Spectrum Needs,

by Linda K. Moore.

97

For more information, see briefing by Federal Wireless Users Group:

[http://snad.ncsl.nist.gov/fwuf/may02slides/wiesner.pdf], visited May 12, 2003.