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December 2011 Archives
December 20, 2011

Congress has now passed the final Department of Homeland Security (DHS) FY 2012 budget and it isn’t pretty for state and local homeland security grant programs. Congress appeared to split the difference by adopting the House’s method of turning multiple homeland security programs into a single block to be allocated by the Secretary, while providing more funding as per the Senate to this overall process.

In total, the budget provides $2,374,681,000 for all state and local grants of which $350 million will go for Emergency Management Performance Grants (EMPG) and $675 million for the Assistance to Firefighters Grant (AFG). Both the EMPG and AFG are funded in separate budget accounts from the state and local homeland security grants, which are funded at $1,349,681,000. This includes $50 million for the border security grant Operation Stonegarden, no less than $100 million for “areas at the highest threat of terrorist attack” and 6.8% or $9,177,830 for FEMA management and administration leaving $958,822,170 for the rest.

The remaining $958,822,170 is funded as a block to cover the Urban Areas Security Initiative, (UASI), State Homeland Security Program (SHSP), Transit Security Grant program (TSGP), Port Security Grant program (PSGP), Metropolitan Medical Response System (MMRS), Citizen Corps program (CCP), etc. at the discretion of the Secretary. More on that below.

Why the Cuts?

The $1,108,822,170 in FY 2012 funding for Stonegarden, high threat areas and all the other homeland security grant programs represents a massive $846,177,830 cut from equivalent programs in FY 2011, which also saw major reductions compared to FY 2010. The basis for these cuts in the eyes of Congress is simple: A lack of quantifiable metrics that measure the additional capability produced by the grants and the perceived slow drawdown of grant funds by recipients. While both issues are surmountable, the federal, state and local homeland security community that benefits from these programs is getting low on time to do so. 

Threat versus Risk

Given the funding methodology used by Congress, grant recipients do not have a specific funding amount at this time except for the $50 million for Operation Stonegarden and the no less than $100 million for “areas at the highest threat of a terrorist attack.” While it is reasonable to assume this $100 million may serve as a baseline for the UASI program that is not assured given the ambiguity in the statutory language, which does not specify the UASI program for this funding.

The ambiguity is further complicated in the law’s exclusive use of the word “threat” as opposed to “risk” or the three elements of risk – threat, vulnerability and consequence. In this regard, the law seems to be at odds with itself whereby in the opening sentence of the state and local programs section it reads that grants “shall be distributed according to threat, vulnerability and consequence,” i.e., risk, but later reads that the $100 million carve out will be distributed based on “threat.” Is this simply a typo or something else? Why does this matter?

Threat is an element of risk but not the whole picture and it is risk that is used to allocate UASI funding. When accounting for threat in these matters, it is based largely on intelligence and actual plots aimed at specific cities or other targets and looks very closely at the likelihood of an attack accounting for both the intent and capability of the terrorists. A threat based analysis would not include the vulnerability of the specific target and other potential targets or the consequences of a successful attack against the target or other potential targets, which, if very low on both counts, would drive the overall risk score down. This is especially true since in year’s past under DHS’s risk based allocation formula, vulnerability and consequence have accounted for 70% of the grant allocation formula with threat accounting for 30%.

Regardless of how DHS interprets the meaning of “threat”, in the end, the Secretary could append the $100 million “threat” funding to any UASI allocation resulting in a slightly different allocation formula for the $100 million, but with it operating under the same grant guidance as the UASI’s “risk” based funding. The result is a distinction as to how funding is allocated to urban areas on the front end by DHS with no difference on how the funding is used by the urban areas on the back end.

Does Every Program Get Funded?

The short answer is probably not, but it is far from clear. The FY 2012 budget law opens with the following language on state and local homeland security grant programs:

“For grants, contracts, cooperative agreements and other activities, $1,349,681,000, which shall be distributed, according to threat, vulnerability and consequence, at the discretion of the Secretary based on the following authorities:”

The law goes on to list 12 different grant programs and their authorizing statutes relative to the term “authorities.” The answer to the question of whether each of the 12 programs listed must be funded turns on a few key issues - whether the “based on the following authorities” language is a requirement that every listed program be funded or whether it simply means once the Secretary makes up her mind on whether to fund a program she must do so pursuant to that program’s authorizing language. In addition, and related, whether the Secretary’s discretion under the law applies only to the use of risk data in distributing the funds among and within programs or whether it also applies to determining which programs actually get funded in the first place.

On both counts the law is vague and the Conference Report is silent.  However, it would seem clear that programs not listed among the 12, such as the Regional Catastrophic Preparedness Grant Program (RCPGP) cannot be funded in FY 2012 since there is no authority in the law for the Secretary to allocate funding to that program. 

Given the ambiguous nature of the language, the Secretary could probably go either way in her decision, but the broad interpretation of her discretion would be the more practical one. In fact, several of the 12 programs listed were not funded by Congress in FY 2011 (BZPP and IECGP) and it would seem odd to now require their funding at some minimum level in a year where overall funding has been further drastically cut.

Moreover, linking the words “shall be distributed” with “based on the following authorities” into a requirement for funding of all listed programs would undercut the Secretary’s discretion in allocating funding and stretch the meaning of the words when in fact Congress could have easily inserted language that required the Secretary to fund each listed program based on a risk analysis. Congress did not do that. Instead, it gave the Secretary discretion to be informed by risk, and when implemented, to be governed by the laws covering the execution of the programs that do get funded.  Specifically, the opening language first requires that the funding be distributed among grant recipients according to risk, but then caveats that requirement by granting the Secretary discretion over which programs may be funded, but then requires that if they are funded, the programs must be funded based upon the authorizing language in the law (“authorities) relative to that program.

This last point raises an interesting question relative to the SHSP program regardless of which interpretation is used. The SHSP is authorized pursuant to 6 U.S.C. 605 in which the statute has language referring to all states being eligible to apply for funding and a minimum level of funding for each state. Thus, if the Secretary opens the door and provides any funding under SHSP, will the Secretary have to apply a minimum level of funding to each state as a percentage of the total amount she decides to allocate to the SHSP program as required by 6 U.S.C. 605? The answer appears to be “yes” since the authority to allocate SHSP funding comes with that requirement.

What is clear is that even if every program listed must be funded, the Secretary has the discretion over how much to fund each program even if that discretion is augmented by a required risk analysis. Otherwise, Congress would have simply allocated funding per program itself. Therefore, in theory, the Secretary could fund any one program at $1 or $500 million so long as there was enough money to meet each program’s requirements, and the risk analysis was used to support the outcome.

There are likely many other brain twisters lurking in the law as Congress has fundamentally changed these programs and cut overall funding at the same time and left the tough decisions concerning what it means and how to implement it to the Secretary of Homeland Security.


 


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