State and Local Homeland Security: Unresolved Issues for the 109th Congress

CRS Report for Congress
State and Local Homeland Security:
th
Unresolved Issues for the 109 Congress
Updated August 3, 2006
Shawn Reese
Analyst in American National Government
Government and Finance Division


Congressional Research Service ˜ The Library of Congress

State and Local Homeland Security:
Unresolved Issues for the 109th Congress
Summary
Arguably, the three most important homeland security public laws enacted
following the terrorist attacks on September 2001 are: P.L. 107-56, “Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (USA PATRIOT Act)”; P.L. 107-296, “Homeland Security
Act of 2002”; and P.L. 108-458, “Intelligence Reform and Terrorism Prevention Act
of 2004.” The PATRIOT Act focused on enhancing domestic security through anti-
terrorism measures, specifically, law enforcement and legal responses to terrorism.
The Homeland Security Act established the Department of Homeland Security
(DHS), and the Intelligence Reform and Terrorism Prevention Act restructured the
U.S. intelligence community to better assist in terrorism preparedness and response.
These key laws not withstanding, a host of important state and local homeland
security policy issues remain, which the 109th Congress might address. Some of the
issues include reportedly unmet emergency responder needs, the proposed reduction
in appropriations for federal homeland security assistance, the determination of state
and local homeland security risk assessment factors, the absence of emergency
responder equipment standards, the development of state and local homeland security
strategies, and the limited number of state and local officials with security clearances.
A case could be made that the primary state and local homeland security issue
is the reportedly unfair and inadequate distribution of federal homeland security
assistance; this report, however, does not address that issue. For information
concerning FY2005 homeland security grant allocations and a discussion of federal
homeland security assistance distribution formulas, see CRS Report RL32696, Fiscal
Year 2005 Homeland Security Grant Program: State Allocations and Issues for
Congressional Oversight. For a comparison of current legislative actions on
homeland security distribution formulas, see CRS Report (archived) RL32892,
Homeland Security Grant Formulas: A Comparison of Formula Provisions in S. 21
and H.R. 1544, 109th Congress, available upon request from the author.
The report will be updated as congressional actions warrant.



Contents
In troduction ..................................................1
Emergency Responder Needs....................................2
Hiring and Retention of Personnel.............................2
Interoperable Communications...............................4
Reduction in Federal Homeland Security Assistance..................5
Homeland Security Equipment Standards...........................7
State and Local Official Security Clearances.........................8
List of Tables
Table 1. FY2005-FY2006 Federal Homeland Security Assistance............6



State and Local Homeland Security:
th
Unresolved Issues for the 109 Congress
Introduction
Arguably, the three most important homeland security public laws enacted
following the terrorist attacks on September 2001 are: P.L. 107-56, “Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (USA PATRIOT Act)”; P.L. 107-296, “Homeland Security
Act of 2002”; and P.L. 108-458, “Intelligence Reform and Terrorism Prevention Act
of 2004.” The PATRIOT Act focused on enhancing domestic security through anti-
terrorism measures, specifically, law enforcement and legal responses to terrorism.
The Homeland Security Act established the Department of Homeland Security
(DHS), and the Intelligence Reform and Terrorism Prevention Act restructured the
U.S. intelligence community to better assist in terrorism preparedness and response.
Numerous other recently enacted public laws address homeland security issues
such as the following:
!transportation security;1
!border security;23
! bioterrorism;
!maritime security;4 and5
!terrorism insurance.
These key laws not withstanding, a host of important state and local homeland
security policy issues remain, which the 109th Congress might address. Some of the
issues include reportedly unmet emergency responder needs; the proposed reduction
in appropriations for federal homeland security assistance; the determination of state
and local homeland security risk assessment factors; the absence of emergency
responder equipment standards; the development of state and local homeland security
strategies; and the limited number of state and local officials with security clearances.


1 P.L. 107-71, “Aviation and Transportation Security Act.”
2 P.L. 107-173, “Enhanced Border Security and Visa Entry Reform Act, 2002.”
3 P.L. 107-188, “Public Health Security and Bioterrorism Preparedness and Response Act,

2002.”


4 P.L. 107-295, “Maritime Transportation Antiterrorism Act, 2002.”
5 P.L. 107-297, “Terrorism Risk Insurance Act, 2002.”

The state and local homeland security issues may be deemed important because
they arguably identify critical homeland security needs and policy questions that have
not been fully addressed since September 2001.
One could argue that the primary state and local homeland security issue is the
widely reported unfair and inadequate distribution of federal homeland security
assistance; this report, however, does not address that issue. For information
concerning FY2006 homeland security grant allocations, a discussion of federal
homeland security assistance distribution formulas, risk factors, and state and urban
area homeland security strategies see CRS Report RL33583, Homeland Security
Grants: Evolution of Program Guidance and Grant Allocation Methods.
Emergency Responder Needs
The FY2006 Homeland Security Grant Program (HSGP) guidelines, which
include guidance for the State Homeland Security Grant Program (SHSGP), the
Urban Area Security Initiative (UASI), the Law Enforcement Terrorism Prevention
Program (LETPP), the Emergency Management Performance Grant Program
(EMPG), and the Citizen Corps Programs (CCP), provide a list of authorized
equipment, training courses, exercises, and planning activities that states and
localities can purchase with grant allocations.6 Observers note, however, that the list
of authorized expenditures does not adequately address the two most important
(according to emergency responders) needs — hiring and retention of personnel, and
interoperable communications.
Hiring and Retention of Personnel. Hiring and retention of emergency
responder personnel (including law enforcement personnel, fire and emergency
medical service personnel, and emergency managers) is not an authorized HSGP
expenditure. State and local law enforcement agencies receive federal hiring and
retention funding, however, through the Department of Justice (DOJ) Community-
Oriented Policing Services (COPS) and Justice Assistance Grant Program (JAG).7
Fire departments receive hiring and retention funding through the Staffing for
Adequate Fire and Emergency Response Grant Program (SAFER).8
State and local government officials and emergency responders have stated that
the hiring and retention of personnel is one of their principal homeland security
needs. Ten months after the September 11, 2001, terrorist attacks, Alexander Knopp,
Mayor of Norwalk, Connecticut, testified before the House Committee on
Government Reform’s Subcommittee on National Security, Emerging Threats, and
International Relations. Mayor Knopp stated that federal funding was needed to


6 U.S. Department of Homeland Security, Office for Grant and Training, Fiscal Year 2006
Homeland Security Grant Program: Program Guidelines and Application Kit (Washington:
Dec. 2005).
7 In FY2005, DOJ combined the Local Law Enforcement Block Grant Program and the
Byrne Memorial Grant Program into JAG.
8 In FY2005, Congress appropriated $65 million for SAFER in P.L. 108-334 (FY2005 DHS
appropriations).

expand the number of firefighters and police officers to assist in terrorism
preparedness and response.9 At the same hearing, Christopher J. Lynch, New
Cannan, Connecticut, chief of police, stated that emergency responder agencies
needed to increase volunteer staff due to the lack of funding for hiring new
personnel.10 In January 2005, 50 House of Representatives Members sent a
bipartisan letter to the President asking for a significant increase in the
Administration’s FY2006 budget for the hiring of first responders.11
On May 1, 2003, former DHS Secretary Tom Ridge testified before the Senate
Governmental Affairs Committee that it was not the federal government’s role to pay
the salaries of state and local employees.12 Even with the testimony of state and local
officials, DHS continues to prohibit the use of federal homeland security funding for
the hiring and retention of emergency responder personnel.
With the increased role state and local personnel have in homeland security
activities, Congress might consider authorizing the use of federal homeland security
assistance funding for hiring and retaining emergency responders. One might argue
that without a sufficient number of emergency responder personnel, states and
localities might have difficulties performing day-to-day operations and responding
to homeland security emergencies.
On the same subject, in February 2005, the Administration proposed in its
FY2006 budget request to reduce funding for COPS and eliminate JAG.13 On
February 7, 2005, the International Association of Chiefs of Police (IACP) released
a press statement announcing its displeasure with the Administration’s proposal.14
The proposed cut in COPS funding and the elimination of JAG could further reduce
state and local homeland security capabilities by reducing the amount of federal
funding used to hire and retain emergency responders.
One bill in the 109th Congress, passed by the House on May 12, 2005, H.R.

1544, “Faster and Smarter Funding for First Responders Act of 2005,” and another


9 U.S. Congress, House Committee on Government Reform, Subcommittee on National
Security, Emerging Threats, and International Relations, Homeland Security: Keeping Firstthnd
Responders First, 107 Cong., 2 sess., hearing, July 30, 2002 (Washington: GPO, 2003),
p. 31.
10 Ibid., p. 48.
11 “Representative Abercrombe Requests First Responders Grants Restored to Police,
Firefighters,” U.S. Federal News, Feb. 28, 2005. See also, “Representative Tierney
Spearheads Efforts for First Responder Funding in Fiscal 2006 Budget,” U.S. Federal News,
Jan. 12, 2005.
12 U.S. Congress, Senate Governmental Affairs Committee, Investing in Homeland Security:
Streamlining and Enhancing Homeland Security Grant Programs, 108th Cong., 1st sess.,
hearing, May 1, 2003, (Washington: GPO, 2003).
13 U.S. Office of Management and Budget, Fiscal Year 2006 Budget of the United States
Government (Washington: GPO, 2005), Appendix, p. 708.
14 International Association of Police Chiefs, “Police Chiefs Decry Deep Budget Cuts That
Would Make Communities More Vulnerable,” press release, Feb. 7, 2005.

bill, reported on April 12, 2005, by the Senate Homeland Security and Governmental
Affairs Committee, S. 21, “Homeland Security Enhancement Act of 2005,” propose
to provide funding for overtime expenses related to homeland security activities.
Neither bill, however, authorizes federal homeland security funding to be used for
the hiring and retention of emergency responders.
Interoperable Communications. According to a National Governors
Association (NGA) survey conducted in August 2004, only 22% of the states that
responded have developed statewide interoperability communications, while 73% of
those that responded stated they are still in the process of developing15
interoperability. On June 15, 2003, IACP released a list of anti-terror needs, and
stated that one of their priorities is interoperable communications among all16
emergency responder entities.
The FY2006 HSGP guidelines authorize states and localities to purchase
communications equipment.17 Interoperable communications equipment, however,
is but one of many types of equipment on the DHS Authorized Equipment List
(AEL). Even with this funding source, NGA states:
Developing statewide interoperability for emergency responders is the chief
priority, and states are working diligently to bolster this capacity. Many are
struggling with the dual challenges of funding and time. States must either
replace outdated equipment with new models, or install software that allows18
incompatible equipment throughout the state to communicate with each other.
Additionally, NGA stated that the survey respondents indicated that additional grant
funding would facilitate the acquisition of new technology to enable
interoperability. 19
One might assume that because DHS has not provided a separate funding source
or a specific amount of grant funding for communications equipment, the department
does not recognize the state and local need for interoperable communications. This
assumption, however, does not address the issue of state and local governments’
responsibility for prioritizing their homeland security needs.
The House Appropriations Committee recommended, in H.R. 2360 (FY2006
DHS appropriations), a total of $3.19 billion for federal homeland security assistance,
a reduction of $420 million from FY2005 funding (see Table 1). This proposed


15 National Governors Association, “Homeland Security in the States: Much Progress, More
Work,” issue brief, Jan. 24, 2005.
16 International Association of Police Chiefs, “Police Chiefs Offer Priority List of Anti-
Terror Needs,” press release, June 15, 2003.
17 Fiscal Year 2006 Homeland Security Grant Program: Program Guidelines and
Application Kit (Washington: Dec. 2005).
18 “Homeland Security in the States: Much Progress, More Work,” issue brief, Jan. 24,

2005, p. 5.


19 Ibid., p. 4.

reduction included $350 million less for SHSGP than was appropriated in FY2005.20
SHSGP is the primary program states use to fund interoperable communications.
The ability of emergency responders to communicate has been identified as one of
the primary national priorities in the National Preparedness Goal.21 The proposed
reduction in funding could result in states and localities not funding interoperable
communications at the level needed to meet the national priority of strengthening this
capability.
Reduction in Federal Homeland Security Assistance
The reduction of federal homeland security assistance funding is another
homeland security issue states and localities face. In FY2005, Congress appropriated
approximately $3.61 billion for state and local homeland security assistance.22 In the
FY2006 budget request, the Administration proposes a total of $3.36 billion for
federal homeland security assistance, a reduction of $250 million from FY2005
funding. Additionally, the FY2006 budget request provides no line item funding for
the Law Enforcement Terrorism Prevention Program (LETPP). It proposes, however,
to direct states and localities to allocate no less than 20% of SHSGP and UASI
funding for LETTP activities.23 Apparently, this would be a reduction in SHSGP and
UASI funding for equipment, training, exercises, and planning, which states and
localities were authorized to fund with 100% of their allocated amount in FY2005.
One could argue that the proposed overall funding reduction of $250 million and the
Administration’s requirement for states and localities to allocate no less than 20% of
their SHSGP and UASI funding to LETPP activities would represent a further
reduction of funding for state and local homeland security activities.
The Administration’s budget proposal requests $500 million for FIRE in
FY2006, a cut of 30% from the FY2005 appropriated level. Priority would be given
to grant applications enhancing counter-terrorism capabilities. Grants would be
available only for training, vehicle acquisition, firefighting equipment, and personal
protective equipment. Under the budget proposal, activities such as wellness/fitness
and fire station modification would not be funded. Activities such as prevention,
public fire safety education and awareness, and fire code enforcement would be
funded under a separate fire prevention and firefighter safety grant program. For
FY2006, the Administration is requesting no funding of the Staffing for Adequate
Fire and Emergency Response (SAFER) grants, which provide assistance to fire


20 House Appropriations Committee Homeland Security tables of Mar. 15, 2005,
accompanying H.R. 2360.
21 U.S. Department of Homeland Security, Interim National Preparedness Goal
(Washington: Mar. 2005), p. 13. For further information on the National Preparedness Goal,th
see CRS Report RL32803, The National Preparedness System: Issues in the 109 Congress,
by Keith Bea.
22 P.L. 108-334, Title III, FY2005 DHS appropriations.
23 Fiscal Year 2006 Budget of the United States Government (Washington: GPO, 2005),
Appendix, p. 478.

departments for hiring personnel.24 The House Appropriations Committee
recommends $600 million for firefighter assistance, including $550 million for fire
grants and $50 million for SAFER Act grants. The committee does not agree with the
Administration’s proposal to shift the program’s priority to terrorism or to limit the
list of eligible activities. The following table compares funding for FY2003 through
FY2005 with the FY2006 budget request and DHS appropriations bill (H.R. 2360).
The House Appropriations Committee recommends a total of $3.19 billion for
federal homeland security assistance, a reduction of $420 million from FY2005
funding.25
Table 1. FY2005-FY2006 Federal Homeland Security Assistance
(Amounts in millions of dollars)
FY2006 FY2006
Program FY2003Appro ps FY2004Appro ps FY2005Appro ps B udg et House
Request(H.R. 2360)
State Homeland Security
Grant Program1,8701,7001,1001,020750
Urban Area Security Initiative8007251,2001,0201,215
Targeted Infrastructure
Protection600
Law Enforcement Terrorisma
Prevention Program 400400[408]400
Critical Infrastructure
Protection200
Assistance to Firefighters750750715500600
Emergency Management
Performance Grants170180180170180
Citizen Corps Programs3040155040
To tal 3 ,820 3,795 3,610 3,360 3,185
Source: P.L. 107-117; P.L. 107-206; P.L. 108-7; P.L. 108-11; P.L. 108-90; P.L. 108-334; OMB,
FY2006 Budget, Appendix, p. 478; and House Appropriation Committee tables of Mar. 15, 2005
accompanying H.R. 2360.
a. This amount is not included in the total and is derived from the 20% of SHSGP and UASI to be
used for law enforcement terrorism prevention activities.
Initially, following the September 2001 terrorist attacks, there may have been
a need for a significant amount of funding for state and local homeland security.
Some may argue, however, that now there is only a need to maintain state and local
homeland security programs and activities. Nevertheless, some may argue that the


24 This information provided by Len Kruger, Specialist in Science and Technology,
Research, Science, and Industry Division, Congressional Research Service.
25 House Appropriations Committee Homeland Security tables of Mar. 15, 2005
accompanying H.R. 2360.

initial attempt to create a base amount of homeland security funding may have been
inadequate. As an example, states have identified a need for additional funding for
interoperable communications systems. Additionally, the reduction of funding may
impair state and local attempts to meet the National Preparedness Goal’s national
priorities of implementing the National Incident Management System (NIMS) and
National Response Plan (NRP); expanding regional homeland security collaboration;
implementing the Interim National Infrastructure Protection Plan; strengthening
homeland security information sharing and collaboration capabilities; strengthening
chemical, biological, radiological, nuclear, and explosive (CBRNE) detection,
response, and decontamination capabilities; and strengthening medical surge and
mass prophylaxis capabilities.26
Homeland Security Equipment Standards
Another state and local homeland security issue concerns equipment standards.
On December 17, 2003, the President issued Homeland Security Presidential
Directive-8 (HSPD-8). Among other things, HSPD-8 directs the DHS Secretary, in
coordination with state and local officials, to establish and implement procedures for
developing and adopting first responder equipment standards that support a national
preparedness capability.27 DHS, however, has so far issued standards only for two
first responder equipment categories: personal protective gear, and radiation and
nuclear detection equipment.28
Presently, DHS has not provided standards for any other type of first responder
equipment. A report prepared for the Oklahoma City National Memorial Institute for
the Prevention of Terrorism and the Department of Justice recommends that the
federal government establish first responder equipment standards to assist in the
nation’s preparedness for terrorist attacks.29 In February 2003, The National Task
Force on Interoperability, a task force composed of representatives from professional
emergency responder and government personnel associations, recommended the
establishment of standards for interoperable communications. In a report on
interoperable communications, the task force stated that the use of standards for


26 Interim National Preparedness Goal (Washington: Mar. 2005), pp. 9-15.
27 U.S. President, Office of Homeland Security, “Homeland Security Presidential Directive-

8: National Preparedness,” Homeland Security Presidential Directive, Dec. 17, 2003,


available at [http://www.whitehouse.gov/news/releases/2003/12/20031217-6.html], visited
June 7, 2005.
28 U.S. Department of Homeland Security, Office for Domestic Preparedness, “Emergency
and Disasters: First Responder Standards,” available at [http://www.dhs.gov/dhspublic/
display?theme=63&content=3294], visited May 25, 2005.
29 Hicks and Associates, Inc., Project Responder: Emergency Responders Needs, Goals, and
Priorities, Mar. 1, 2003, p. 12, available only to [http://www.llis.dhs.gov] members at
[http://www.llis.dhs.gov/member/secure/detail.cfm?content_id=6541], visited May 25,

2005.



equipment and software might alleviate many of the interoperability problems faced
by emergency responders, and state and local governments.30
In the FY2006 HSGP guidance, DHS provides an AEL that categorizes which
equipment states and localities are authorized to purchase. The list, however, does
not identify standards for equipment selection.31 H.R. 1544 and S. 21 either require
a determination of the need for equipment standards or require DHS to provide
information to states and localities on voluntary standards.
The lack of equipment standards may result in states and localities purchasing
equipment which does not meet their homeland security needs. It may also result in
states and localities purchasing equipment that is not compatible with other
jurisdictions’ equipment. The need for multiple jurisdictions to use the same
equipment or compatible equipment might become evident if multiple jurisdictions
were to respond jointly to a homeland security emergency.
State and Local Official Security Clearances32
Most information DHS provides to state and local government officials is
unclassified.33 Nevertheless, these officials might need some access to classified
information, for example, “real time” intelligence information concerning terrorism
threats, to adequately plan, coordinate, and execute homeland security activities.
Presently, about 325 state and local government officials possess DHS-
sponsored security clearances, and 250 state and local government officials are in the
process of receiving DHS-sponsored security clearances. DHS continues to
processes additional clearances for state, local, territorial, and tribal officials whose
requests are submitted through their states’ Office of Homeland Security. One mayor
from New York State has a DHS-sponsored security clearance, and the State of
Hawaii has recently submitted clearance requests for four mayors. DHS states that
no other mayors have requested DHS-sponsored security clearances. Every


30 The National Task Force on Interoperability, Why Can’t We Talk?: Working Together to
Bridge the Communications Gap to Save Lives, Feb. 1, 2003, p. 54, available only to
[http://www.llis.dhs.gov] members at [http://llis.dhs.gov/members/secure/
detail.cfm?content=6591], visited May 25, 2005.
31 Fiscal Year 2006 Homeland Security Grant Program: Program Guidelines and
Application Kit (Washington: Dec. 2005).
32 For further information on state and local officials’ security clearances, contact Fred
Kaiser, Specialist in American National Government, Government and Finance Division,
Congressional Research Service, at 7-8682.
33 Letter from Michael Cappannari, Legislative Assistant, Office of Legislative Affairs, U.S.
Department of Homeland Security, to Fred Kaiser, Specialist in American National
Government, Government and Finance Division, Congressional Research Service, June 3,

2005.



Governor, however, is granted a security clearance after signing a non-disclosure
agreement (Special Form-312).34
In addition to DHS, several other federal departments and agencies provide
security clearances to state and local officials. The Federal Bureau of Investigation
(FBI) provides numerous state and local law enforcement officials with security
clearances. State and local officials may also possess security clearances provided
by the Department of Defense, as a result of military (Reserves and National Guard)
service.
While hundreds of state and local officials have federally sponsored security
clearances, DHS is unable to provide an accurate number of them.35 This limited and
uncertain number of state and local officials with security clearances might affect the
ability of DHS (or other federal departments and agencies) to provide classified
information to states and localities. They, in turn, might not be able to adequately
prepare for, respond to, and recover from terrorist attacks without access to classified
information. Additionally, states and localities might not be able to coordinate with
other government entities (federal or state and local) if information cannot be shared
due to a lack of security clearances.
Security clearances are a problem not only for state and local officials, but also,
according to the Government Accountability Office (GAO), for port security
officials. GAO reported in April 2005 that port security officials are having
difficulties getting homeland security information due to delays in obtaining security
clearances. Delays, as determined by GAO, have occurred because U.S. Coast Guard
field representatives did not know that the Coast Guard was responsible for
contacting non-federal port security officials concerning security clearances, and
Coast Guard field offices were not tracking submitted port security officials’ security
clearance requests.36


34 Ibid.
35 Ibid.
36 U.S. Government Accountability Office, Maritime Security: New Structures Have
Improved Information Sharing, but Security Clearance Processing Needs Further Attention,
GAO-05-394, Apr. 2005, p. 27, available at [http://www.gao.gov], visited June 7, 2005.