Order Code RL31680
CRS Report for Congress
Received through the CRS Web
Standards for State
and Local Preparedness
Updated October 8, 2003
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Standards for State and Local Preparedness
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.
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.
State and Local Preparedness
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
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
Although there is arguably less consensus on whether public health personnel should be
considered first responders, this report includes public health in the definition.
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.
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
Descriptions of these and other programs are available in CRS Report RL31227, Terrorism
Preparedness: Catalog of Selected Federal Assistance Programs, coordinated by Ben
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.
P.L. 103-62; 107 Stat. 285.
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,
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
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
S. 1245, sections 4(h) and (e)(4).
S. 1245, sec. 3(c).
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.
U.S. Congress, Conference Committees, Making Appropriations for the Department of
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
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
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
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
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,
H.R. 5005 (introduced at the request of the Administration, June 2002), sec. 301(4).
S. 2452 (as introduced, May 2002), sec. 103(a)(3)(F).
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.
P.L. 107-296, sec. 312(c)(4).
P.L. 107-296, sec. 502(2)(A).
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.
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
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
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
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
S. 2664 (as reported), sec. 616(c)(2), 616(c)(5), and 616(c)(6).
The Senate Committee on Commerce, Science, and Transportation reported S. 2862, the
“Firefighting Research and Coordination Act,” on Nov. 18, 2002.
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:
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
NFPA 471 — Recommended Practice for Responding to Hazardous
NFPA 472 — Professional Competence of Responders to Hazardous
Materials Incidents; and,
NFPA 1994 — Protective Ensembles for Chemical/Biological
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
[http://www.rand.org/publications/MR/MR1251], visited May 12, 2003.
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.
P.L. 107-296, sec. 2(6).
flexibility to expand the definition of first responders to meet the needs of all
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.
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.
U.S. Congress, Office of Technology Assessment, Global Standards: Building Blocks for
the Future, TCT-512 (Washington: GPO, March 1992), pp. 101-103.
P.L. 104-113, sec. 12(d)(1); 110 Stat. 783.
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.
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
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
American National Standards Institute, ANSI Procedures for the Development and
Coordination of American National Standards (New York: Jan. 2002), pp. 1-8.
Office of Technology Assessment, Global Standards, pp. 104.
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.
Office of Technology Assessment, Global Standards, pp. 104-105.
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
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
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:
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.”
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.
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,
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.
equipment.33 (See the Appendix for an overview of existing standards and
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
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
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
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.
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.
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:
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.
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
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
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.
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.
James Lee Witt and Associates, Department of Homeland Security and FEMA
(Washington: 2002), unpublished.
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.
all-hazards approach. On the other hand, failure to implement such standards could
leave the nation insufficiently prepared for terrorist attacks involving WMD.
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
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
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
William L. Waugh, Jr. and Richard T. Sylves, “Organizing the War on Terrorism,” Public
Administration Review, Special Edition, Sept. 2002, p. 150.
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
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.
National Research Council, Standards, Conformity Assessment, and Trade: Into the 21st
Century (Washington: National Academy Press, 1995), p. 56.
P.L. 107-296, sections 232(b)(3) and (b)(4); 312(c)(4); 502(2)(A);
P.L. 107-296, sec. 232(b)(3), 312(c)(4), and 502(2)(A).
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.
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
Office of Homeland Security, National Strategy for Homeland Security, p. 11.
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).
The competencies are available at: [http://www.nursing.hs.columbia.edu/
institute-centers/chphsr/btcomps.html], visited May 12, 2003.
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.
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
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
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
National Emergency Management Association, “Trends in State Terrorism Preparedness”
(Lexington, KY: Dec. 2001).
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.
P.L. 91-190; 83 Stat. 852.
See ODP web site: [http://www.ojp.usdoj.gov/odp/].
Kettl, Promoting State and Local Government Performance, p. 10.
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
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.
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.
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.
for equipment and training). Such challenges could complicate the process of
defining a preparedness baseline and reduce the potential usefulness of such a
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
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.
National Research Council, Standards, Conformity Assessment, and Trade, pp. 16-17.
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.
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.
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
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
Office of Technology Assessment, Global Standards, p. 104.
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.
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.
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
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.
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.
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.
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).
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
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
29 C.F.R. 1910.120.
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.
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.
2 U.S.C. 658a. Also see 2 U.S.C. 1503.
2 U.S.C. 1571.
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.
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.
Examples of Current Standards and Development
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.
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
NFPA 472 — Professional Competence of Responders to Hazardous
NFPA 473 — Professional Competence of Emergency Medical
Responders to Hazardous Materials Incidents;
NFPA 1951 — Protective Ensemble for Urban Search and Rescue
NFPA 1994 — Protective Ensembles for Chemical/Biological
Terrorism Incidents. 79
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.
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,
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
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
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;
Other participating organizations include the Association for Professionals in Infection
Control (APIC) and the Association of Public Health Laboratories (APHL).
For more information on this program, see the NACCHO web site:
[http://www.naccho.org/project63.cfm], visited May 12, 2003.
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.
For more information, see ANSI web site: [http://www.ansi.org/
standards_activities/standards_boards_panels/hssp/overview.aspx?menuid=3], visited May
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
For more information on EMAP, see:[http://www.emaponline.org].
For more information on this program, see ODP web site: [http://www.ojp.usdoj.gov/odp/
grants/equipment.htm], visited May 12, 2003.
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.
See AGILE web site: [http://www.agileprogram.org/], visited May 12, 2003.
and rescue technology requirements, bomb disposal techniques, and incident
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,
The NIJ web site is: [http://www.ojp.usdoj.gov/nij/], visited May 12, 2003.
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.
For more information on this program, see the CDC web site: [http://www.cdc.gov/
programs/bio9.htm], visited May 12, 2003.
The competencies is available at: [http://www.nursing.hs.columbia.edu/institutecenters/chphsr/btcomps.html], visited May 12, 2003.
At: [http://www.bt.cdc.gov/HealthProfessionals/index.asp], visited May 12, 2003.
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
See the IAB web site: [http://www.iab.gov/].
For more information on the NIST, see CRS Report 95-30, The National Institute of
Standards and Technology: An Overview, by Wendy Schacht.
See the OLES site: [http://www.eeel.nist.gov/oles/welcome.html], visited May 12, 2003.
For more information, see CRS Report RL31375, Meeting Public Safety Spectrum Needs,
by Linda K. Moore.
For more information, see briefing by Federal Wireless Users Group:
[http://snad.ncsl.nist.gov/fwuf/may02slides/wiesner.pdf], visited May 12, 2003.