FEMA is an administrative not a Commerce Clause regulatory agency. Yet Title 44 of the CFR are full of FEMA regulations. Why? In establishing FEMA the decision was made to use notice and comment procedures under the APA even for those guidance documents that technically did not require them under the APA. Some Parts in 44 CFR are in fact required to be published and codified in the CFR and these should be separately considered.
But below the level of published regulations much serious policy and guidance has been published by FEMA without notice and comment. One example is levee policy now undergoing adoption in FEMA’s NFIP.
But often FEMA publishes guidance that has not been formally coordinated or reviewed even throughout FEMA. And certainly not given a shot at comments and review by OFA’s [other federal agencies and departments]. By the way now that Chief Counsel of FEMA has 150 FTE’s perhaps title 44 could be given a thorough scrub. What also needs a thorough legal scrub is all other documents that impact the public directly or indirectly.
One FEMA document I really liked, developed largely by Argonne National Lab, and with full review and coordination in both FEMA and the other Federal agencies was attachment G to SLG 101 now superseded by CPG-101. Both SLG 101 and CPG 101 were issued with the STATES being given veto power over what was included. IN the 2007 review of STATE capablilitie even the STATE influenced SLG-101 resulted in a 50% or higher fail rate for the STATES and this was without Attachment G.
The high quality of Attachment G as compared to other FEMA planning guidance was readily apparent and it should have been fully incorporated into CPG-101.
Anyhow STATE capability is now at an all time low and IMO will drop lower. Set forth below is the Attachment G FEMA fact sheet issued post 9/11 in October 2001.
Terrorism Preparedness Planning Guidance
The Federal Emergency Management Agency (FEMA) published new terrorism preparedness planning guidance for state and local governments in June 2001. The new guidance, Attachment G – Terrorism, is a supplement to Chapter 6 of FEMA’s State and Local Guide 101, Guide for All-Hazard Emergency Operations Planning.
What is the purpose?
The terrorism planning guidance provides state and local emergency planners:
- Information and a framework for developing supplemental emergency operations plans to address the consequences of terrorist acts involving weapons of mass destruction; and;
- A consistent planning approach to help foster efficient integration of state, local, and federal terrorism consequences management activities.
Who should use the guidance?
The guidance is intended for use primarily for personnel responsible for development and maintenance of State and local Emergency Operations plans. Portions of the guidance also may be useful for emergency planners in business, industry and animal care communities,
The guidance is issued under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act which includes provisions for “necessary direction, coordination and guidance” for the nation.
What is included in the Guidance?
The guidance is intended as a planning tool. It establishes no requirements. Among other things the document includes:
- Background on Emergency Operations Plans and how planning for a terrorism incident is incorporated in a comprehensive, all-hazard approach to emergency management.
- Information on various unique terrorism and weapons of mass destruction risks and unique planning considerations.
- Suggested step-by-step planning process including recommendations for key planning partners and considerations.
- Planning principles stressing coordination with existing plans and procedures
- Alternate planning formats using functional and task-based approaches.
- Compendium of Federal programs and resources that could be available to aid in response to a terrorism incident.
- Description of core functions including direction and control, communications, warning, emergency public information, mass care, health and medical and resource management.
How can I get the guidance?
The document is posted on the FEMA Web site at www.fema.gov/pte/gaheop.htm. Hard copies may be obtained from FEMA publications. MAIL at FEMA, P.O. Box 2102, Jessup, MD 20794-2012.
- FAX at (301) 362-5335
- PHONE at 1-800-480-2520
The terrorism planning guidance is the result of a coordinated effort involving FEMA, the National Emergency Management Association, the International Association of Emergency Managers, and the Federal Departments of Justice, Defense, Agriculture, Health and Human Services, and Veterans Affairs, the Environmental Protection Agency, and the Nuclear Regulatory Commission.
October 22, 2001