THE PRESIDENT’S NATIONAL SECURITY TELECOMMUNICATIONS ADVISORY COMMITTEE LEGISLATIVE AND REGULATORY TASK FORCE Federal Support to Telecommunications Infrastructure Providers in National Emergencies Designation as “Emergency Responders Private Sector ” January 31 2006 President’s National Security Telecommunications Advisory Committee TABLE OF CONTENTS 1 0 INTRODUCTION 1 2 0 BACKGROUND 2 3 0 EXAMINATION 5 3 1 3 2 3 3 3 4 4 0 Security for Private Facilities 5 Priority Access to Critical Resources 6 Priority Site Access Authorization 7 Legal and Regulatory Issues 8 3 4 1 The Stafford Act 8 3 4 2 The Defense Production Act 9 3 4 3 The National Response Plan 10 FINDINGS 10 4 1 4 2 4 3 The Stafford Act and Legal Interpretation of Federal Assistance 11 The Stafford Act and TIPs as Emergency Responders PS 12 The NRP and TIPs as Emergency Responders PS 12 5 0 CONCLUSION 13 6 0 RECOMMENDATIONS 15 APPENDIX A TASK FORCE MEMBERS OTHER PARTICIPANTS AND GOVERNMENT PERSONNEL A-1 Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies i President’s National Security Telecommunications Advisory Committee 1 0 INTRODUCTION The President’s National Security Telecommunications Advisory Committee NSTAC in recognition of the importance of protecting and restoring vital services following natural or man-made disasters is charged with providing the President “advice in the identification and solution of problems which the Committee considers will affect national security telecommunications capability ”1 On August 29 2005 Hurricane Katrina made landfall near New Orleans Louisiana as a Category 4 hurricane and battered the Gulf Coast region of the United States Most notably the storm surge breached the levees that protected New Orleans from Lake Pontchartrain and most of the city was subsequently flooded by the lake’s waters In addition the Mississippi Gulf Coast was devastated The storm and ensuing flooding resulted in severe damage to the wireline and wireless communications infrastructure throughout the area Electric power no longer functioned switches were damaged by flooding and critical personnel could not gain access to many sites Because of the storm’s unprecedented destruction to the infrastructure recovery and restoration teams were faced with numerous challenges Civil unrest that arose in the wake of the disaster seriously impeded recovery and restoration efforts The NSTAC examined the response to Hurricane Katrina and the implications of that response for vital national security and emergency preparedness NS EP communications The Federal Government recognizes the significance of the telecommunications infrastructure in providing essential communications during and after a natural disaster or terrorist attack The President’s National Strategy for the Physical Protection of Critical Infrastructures and Key Assets February 2003 affirms that “the Government and critical infrastructure industries rely heavily on the public telecommunications infrastructure for vital communications services ” Communication is at the foundation of the Nation’s ability to respond to a catastrophic event because the stability of the telecommunications infrastructure helps to ensure the protection and restoration of other infrastructures The NSTAC realizes that because the private sector owns the vast majority of the critical telecommunications infrastructure industry and the Federal Government must work together to protect and restore this infrastructure during and after a catastrophic event Consistent with its charge the NSTAC investigated whether the current legal and regulatory framework hindered the coordination of the restoration of critical telecommunications infrastructure efforts between the Federal Government and telecommunications infrastructure providers2 TIP in the aftermath of Hurricane Katrina 1 EO 12382 President's National Security Telecommunications Advisory Committee September 13 1982 2 For this report telecommunications infrastructure providers are those entities who own and operate infrastructure and or provide enabling software hardware and or services for the purposes of providing “telecommunications” as defined in and consistent with the definition found in National Communications System Manual 3-1-1—namely “the transmission emission or reception of intelligence of any nature by wire cable satellite fiber optics laser radio visual or other electronic electric electromagnetic or acoustically coupled means or any combination thereof ” Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies 1 President’s National Security Telecommunications Advisory Committee 2 0 BACKGROUND Since its inception the NSTAC has addressed a wide range of policy issues regarding the importance of protecting and restoring the Nation’s telecommunications infrastructure to maintain vital NS EP functions in the event of a national disaster Hurricane Katrina caused unprecedented damage to the national telecommunications infrastructure and TIPs had to quickly respond and restore the infrastructure to expedite emergency response to the devastated areas However in their response and restoration efforts many TIPs had difficulty accessing vital resources needed to repair essential infrastructure and could have shortened their response times with non-monetary assistance from the Federal Government This difficulty was attributed in large part to differing interpretations of the Robert T Stafford Disaster Relief and Emergency Assistance Act Stafford Act Public Law 93-288 as amended which were intensified by the National Response Plan’s NRP unclear description of the Federal Government’s role in providing support to TIPs during disaster relief efforts The Stafford Act is the legislative vehicle through which the Federal Government provides disaster relief to State local and tribal Governments individuals families and some private nonprofit organizations through the federally administered Disaster Relief Fund The Act grants the President authority to declare an area a natural disaster thereby expediting Federal assistance through the Federal Emergency Management Agency FEMA to States during catastrophes such as Hurricane Katrina 3 With the recent transfer of FEMA to the Department of Homeland Security DHS existing ambiguities in the Stafford Act became subject to new analysis by DHS lawyers Several sections of the Stafford Act indicate that the Act does not preclude Federal assistance to TIPs Section 5170 b 3 for instance allows Federal departments and agencies to “provide assistance essential to meeting immediate threats to life and property resulting from a major disaster” including “Performing on public or private lands or waters any work or services essential to saving lives and protecting and preserving property or public health and safety ” Additionally 5170 b 4 allows Federal agencies to make “contributions to State or local Governments or owners or operators of private non-profit facilities for the purpose of carrying out the provisions of this subsection ” and Section 5172 allows the President to make contributions to private nonprofit facilities if “the facility provides critical services as defined by the President in the event of a major disaster ” As a result of new interpretations regarding the applicability of the Stafford Act to for-profit entities restoration efforts were stalled The Federal Government’s ability to provide assistance to TIPs was hindered preventing the private sector from reacting to Katrina with the same efficiency with which it had responded in previous disasters Once an incident has been declared a national disaster support extended under the Stafford Act is coordinated through the protocols established in the NRP which was developed pursuant to the Homeland Security Act of 2002 HSA Public Law 107-296 As mandated under Homeland Security Presidential Directive 5 Management of Domestic Incidents the NRP does not have force of law rather its guidelines are intended to provide a firm national framework for 3 The NSTAC acknowledges that proposed legislation exists to amend the Stafford Act and the Homeland Security Act of 2002 however the Committee does not take a position on any specific bill Legislative and Regulatory Task Force—Federal Support to Telecommunications 2 Service Providers in National Emergencies President’s National Security Telecommunications Advisory Committee streamlining incident management activities by improving disaster management coordination among Federal State and local jurisdictions and private sector entities To facilitate this coordination the Government incorporated mechanisms known as emergency support functions ESF describing the type of Federal support available and delineating the roles of the ESF Coordinator and support agencies in administering aid to the public and private sector Table 2-14 lists the 15 ESFs Table 2-1 Emergency Support Functions in the NRP ESF 1 Transportation 2 Communications 3 Public Works and Engineering 4 Fire Fighting 5 Information and Planning 6 Mass Care 7 Resource Support 8 Health and Medical Services 9 Urban Search and Rescue 10 Hazardous Materials 11 Food 12 Energy 13 Public Safety and Security 14 Long-Term Community Recovery and Mitigation 15 External Affairs Description Providing civilian and military transportation Providing telecommunications support Restoring essential public services and facilities Detecting and suppressing wildland rural and urban fires Collecting analyzing and disseminating critical information to facilitate the overall Federal response and recovery operations Managing and coordinating food shelter and first aid for victims providing bulk distribution of relief supplies operating a system to assist family reunification Providing equipment materials supplies and personnel to Federal entities during response operations Providing assistance for public health and medical care needs Locating extricating and providing initial medical treatment to victims trapped in collapsed structures Supporting Federal response to actual or potential releases of oil and hazardous materials Identifying food needs ensuring that food gets to areas affected by disaster Restoring power systems and fuel supplies Securing facilities and resources Assessing social and economic community impact Establishing emergency public information and protective active guidance Lead Agency Department of Transportation National Communications System U S Army Corps of Engineers Department of Defense U S Forest Service Department of Agriculture USDA FEMA American Red Cross General Services Administration U S Public Health Service Department of Health and Human Services HHS FEMA Environmental Protection Agency Food and Nutrition Service Department of Agriculture Department of Energy DHS and Department of Justice USDA Department of Commerce HHS DHS Emergency Preparedness and Response EPR FEMA Department of Housing and Urban Development Department of the Treasury and Small Business Administration DHS EPR FEMA 4FEMA “Your Guide to FEMA ” April 2005 http www training fema gov emiweb dfto docs Your%20Guide%20to%20FEMA doc Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies 3 President’s National Security Telecommunications Advisory Committee Several sections of the plan allude to the importance of partnering with and providing resources to TIPs to ensure NS EP communications during response and recovery efforts For example ESF-2 gives specific guidance regarding industry and Government coordination by instructing Federal officials to “ work with the telecommunications industry” to “restore and reconstruct telecommunications facilities as the situation permits ”5 Recognizing that restoration of damaged critical telecommunications infrastructure requires resources the NRP calls on the National Communications System Manager to “ coordinate with ESF-12 regarding telecommunications industry requests for support under the Electric Service Priority initiative emergency fuel resupply and safe access for telecommunications work crews into disaster areas ”6 ESF-13 helps provide public safety resources when State and local Governments are overwhelmed Instances in which Federal security support is appropriate are as follows • “Badging and Credentialing Assisting in the establishment of a consistent process for issuing identification badges to emergency responders and other personnel needing access to places within a controlled area ” • “Site Security Providing security forces and establishing protective measures around the incident site critical infrastructure and or critical facilities ” and • “Force Protection Providing for the protection of emergency responders and other workers operating in a high-threat environment ” 7 ESF-7 complements the support provided in ESF-13 by offering resources to Federal State local and tribal jurisdictions in the form of “relief supplies facilities space office supplies office space telecommunications security services and personnel required to support immediate response activities ”8 References to coordination with the private sector in the ESFs are bolstered in the Private-Sector Coordination Support Annex to the NRP which reiterates DHS’s responsibility to “facilitate coordinated incident response planning with the private sector at the strategic operational and tactical levels ”9 The NRP also designates “emergency response providers” and “emergency responders” who are eligible for specific support described in the ESFs such as the credentialing and force protection measures mentioned above Specifically it identifies emergency response providers using the statutory definition from the HSA which focuses on Government entities 10 However the plan does not completely overlook the importance of the private sector in emergence response In Appendix 3 the NRP makes one reference to “private sector emergency response providers”11 5 NRP ESF-2 6 Ibid 7 NRP ESF-13 8 NRP ESF-7 9 NRP Private Sector Coordination Support Annex 10 6 U S C § 101 6 2005 states “the term ‘emergency response provider’ includes Federal State and local emergency public safety law enforcement emergency response emergency medical including hospital emergency facilities and related personnel agencies and authorities ” The NRP’s definition in Appendix 1 Glossary of Key Terms inserts “and tribal” following “local” and notes that “emergency response providers” are “also known as ‘emergency responders ’” 11 NRP Appendix 3 Authorities and References Legislative and Regulatory Task Force—Federal Support to Telecommunications 4 Service Providers in National Emergencies President’s National Security Telecommunications Advisory Committee separately from the “emergency response providers” described in the HSA Although the plan seems to allow for a private sector emergency response provider designation it neither elaborates on this concept nor lists specific entities who qualify as such Furthermore it also does not clarify whether any support will be available to private sector emergency response providers or whether any such support provided would be commensurate with that granted to other emergency response providers 3 0 EXAMINATION Immediately following the storm industry and Government response and infrastructure restoration efforts were addressed through the National Coordinating Center NCC which under the NRP is designated as the Federal office for national telecommunications domestic incident management However as a result of the unprecedented destruction to the infrastructure the NCC and other recovery and restoration teams in the private sector faced numerous new and unforeseen operational challenges To analyze these challenges the NSTAC examined the way in which TIPs responded to Hurricane Katrina’s damage the difficulties they faced during their restoration efforts and the legal and regulatory environment in which industry and the Federal Government conducted emergency response The Committee also investigated how legally designating TIPs as “Emergency Responders Private Sector PS ” would aid in accomplishing their task of restoring telecommunications infrastructure 12 3 1 Security for Private Facilities Following Hurricane Katrina civil unrest ensued in New Orleans and TIPs were in need of security protection to safely move into the affected areas TIPs initially reached out to the Government for security protection however interpretations of the Stafford Act limited industry’s ability to receive Government security assistance from the National Guard For example one carrier noted that it was repeatedly denied security protection from the National Guard through official channels at its fixed facilities and while conducting convoy operations to move emergency equipment and personnel into New Orleans The carrier was eventually able to obtain some security assistance from the National Guard informally but this was sporadic and resulted in delays Another carrier was unclear on how Northern Command perceived its role in providing security assistance to TIPs The carrier was overwhelmed with requests for granular detail about the restoration process over several weeks The request for data diverted the carrier’s resources from the restoration efforts and obliged it to focus on responding to data requests It was informed later that regardless of the data no assistance would be provided The lack of protection for communications disaster response personnel delayed industry’s response to the disaster Several companies then resorted to private security services to protect their workers and equipment but were subsequently informed that armed private security personnel were not permitted to carry weapons in Louisiana if they were not licensed by the State of Louisiana Unfortunately the process of engaging and retaining private security service providers gave rise to delays in restoration For example in one case the use of private security delayed 12 The Committee considered the advantages of designating TIPs as “Emergency Responders PS ” to remove all doubt as to whether TIPs could receive Federal disaster relief under the Stafford Act and require them to be included in Federal State regional and local emergency planning processes This designation would also make TIPs eligible to priority access to restricted disaster sites in accordance with official credentialing procedures Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies 5 President’s National Security Telecommunications Advisory Committee restoration efforts 5 days This included time necessary to execute contracts for services travel time to the disaster area and time necessary to set up support infrastructure e g sleeping accommodations showers toilet facilities for these additional personnel in the disaster area State licensing requirements also contributed to delays in many cases Although ESF-13 applies to “Federal-to-Federal support or Federal support to State and local authorities ” it assigns some responsibility for public safety and security to the private sector 13 Accordingly ESF-13 does not distinguish between the public and private sector when declaring that the Federal Government can provide security assistance for response and recovery activities “where locally available resources are overwhelmed or are inadequate or where a unique Federal capability is required ”14 Once the need is determined ESF-13 activates Federal security assistance aimed at “providing security forces and establishing protective measures around the incident site critical infrastructure and or critical facilities ”15 Unfortunately in several instances this standard was not applied to TIPs even though they were restoring critical infrastructure 3 2 Priority Access to Critical Resources Interpretations of the Stafford Act and lack of specificity of the language in ESF-7 and ESF-12 hindered industry’s ability to obtain priority access to necessary resources e g fuel water power vehicles food and shelter that were typically provided by the Federal Government to entities who were recognized and treated as official emergency responders In addition TIPs faced challenges trying to provide housing for their personnel restoring the infrastructure There was a lack of coordination with and support from the Federal Government to secure housing for company personnel who were called in to help restoration efforts In one instance FEMA requested information detailing a carrier’s temporary housing requirements The carrier provided this information but then FEMA declined to offer housing support to the carrier since the housing was on a Federal parcel In some cases FEMA commandeered rooms in local hotels that were previously secured by carriers for their restoration teams and billeting at military bases was not allowed for TIPs Industry was again delayed in its recovery process because of a lack of housing for its restoration crews In addition the hurricane’s damage left TIPs with limited energy options Although most companies had extensive plans in case of power outages the lack of civil order coupled with the extent of the destruction severely impaired companies from carrying out those plans Specifically several cellular sites were equipped with backup generators with enough fuel to last for 2 to 3 days but a number of those generators were stolen Fuel suppliers contracted to maintain those sites were often unilaterally commandeered and in some cases State officials redirected fuel tankers intended for telecommunications facilities to other locations 13 NRP ESF-13 14 NRP ESF-13 15 Ibid Legislative and Regulatory Task Force—Federal Support to Telecommunications 6 Service Providers in National Emergencies President’s National Security Telecommunications Advisory Committee 3 3 Priority Site Access Authorization The day after Hurricane Katrina hit industry repair crews ready to begin restoring service could not obtain permission from officials to enter the disaster area preventing telecommunications services from being restored as quickly as they should have been TIPs had difficulty gaining access to restricted facilities which significantly hindered quick response Specifically inconsistent access authorization policies delayed crews and burdened incident management teams For example FEMA letters authorizing access to restricted areas were changed repeatedly Wireless technicians and emergency response workers were consequently delayed in getting access to damaged cell sites because local law enforcement agencies were not aware of FEMA authorization did not respond appropriately to access letters or did not know when they were able to allow recovery crews into the areas Furthermore predelivery of equipment necessary for the timely recovery of wireless critical infrastructure also was not permitted into secure locations near the expected impacted areas This included equipment that was crucial to establishing wireless coverage in the areas where Federal State and local agencies were staging their operations The changing interpretations of FEMA authorization letters and varying interpretations of those who were eligible to access restricted areas caused TIPs substantial delays in their recovery and restoration efforts In addition the ESF-13 guidelines did not provide badging and credentialing procedures that would have substantially helped TIPs gain needed access to sites where critical telecommunications infrastructure was located The NSTAC has previously examined access and credentialing issues and has made recommendations to remedy gaps in the current policy In 2003 the NSTAC recommended to the President that he “direct the appropriate departments and agencies to…coordinate with industry to develop a plan for controlling access at the perimeter of a disaster area in coordination with State and local Governments ”16 This recommendation was especially important given that perimeter access laws are in general beholden to State and local regulation Unfortunately as the NSTAC indicated in a 2005 report there is currently “no standard Government policy…for private sector use in planning activities for any perimeter control issues ”17 Therefore the Committee recommended that the President direct appropriate agencies to work with industry “to develop a national plan for controlling access at the perimeter of a national special security event or a disaster area ”18 Gaining access to critical areas however remains a salient issue for TIPs The NSTAC Telecommunications and Electric Power Interdependency Task Force has recently reiterated the need to improve access to disaster areas by implementing the perimeter access measures noted in its Trusted Access report and has asked the President to direct the appropriate Government agency to include site access “as part of the Emergency Responder planning process to ensure priority restoration to critical telecommunications ”19 The persistent policy lapse has created an environment in which the Federal Government may task TIPs with certain recovery activities without facilitating coordination with State and local officials charged with implementing jurisdictional perimeter access laws The recent hurricane response efforts in the 16 NSTAC Vulnerability Task Force Trusted Access January 2003 p 10 17 NSTAC Trusted Access Task Force Screening Credentialing and Perimeter Access Controls January 2005 p 6 18 NSTAC Trusted Access Task Force Screening Credentialing and Perimeter Access Controls January 2005 p 9 19 NSTAC Telecommunications and Electric power Interdependency Task Force People and Processes Current State of Telecommunications and Electric Power Interdependencies January 2006 Section 6 0 Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies 7 President’s National Security Telecommunications Advisory Committee Gulf region demonstrated that vital telecommunications restoration efforts were stalled as a result of this situation 3 4 Legal and Regulatory Issues Many companies turned to the Federal Government for support because the civil unrest coupled with the unprecedented level of damage from the storm and subsequent flooding hindered their access to the disaster site and to necessary resources thus impairing their ability to repair the damaged critical infrastructure on their own When requesting support from the Federal Government many companies were unable to receive assistance because Federal agencies indicated that they did not have the authority to provide them support under the Stafford Act and the NRP did not guide an interpretation that would enable that support 3 4 1 The Stafford Act The legal predicate for interpreting the authority of the Federal Government to provide assistance to TIPs is the Stafford Act Congress stated that its intent in creating the Act was “to provide an orderly and continuing means of assistance by the Federal Government to State and local Governments in carrying out their responsibilities to alleviate the suffering and damage which result from such disasters by ” among other things “achieving greater coordination and responsiveness of disaster preparedness and relief programs ”20 The Act acknowledges the need for robust coordination however it does not clearly address coordination with the private sector The Stafford Act provides assistance to “State or local Governments for the repair restoration reconstruction or replacement of a public facility damaged or destroyed by a major disaster and for associated expenses incurred by the Government ”21 Although the language of the statute does not specifically preclude the private sector from receiving resources under the Act it does not clearly grant the Federal Government authority to provide assistance to private entities apart from nonprofit organizations It states that the President can provide resources to “a person that owns or operates a private non-profit facility damaged or destroyed by a major disaster for the repair restoration reconstruction or replacement of the facility and for associated expenses incurred by the person ”22 In addition the law states that the President can “coordinate all disaster relief assistance including voluntary assistance provided by Federal agencies private organizations and State and local Governments ”23 Section 5170 b 3 of the Act also allows Federal departments and agencies to “provide assistance essential to meeting immediate threats to life and property resulting from a major disaster ” 20 42 U S C § 5121 2005 21 42 U S C § 5172 a 1 A 2005 22 42 U S C § 5172 a 1 B 2005 23 42 U S C § 5170 a 2 2005 Legislative and Regulatory Task Force—Federal Support to Telecommunications 8 Service Providers in National Emergencies President’s National Security Telecommunications Advisory Committee This permission to “render assistance” to prevent loss of life or other serious harm stems from a long-standing tradition embodied in policy regulation statute and international obligation Indeed the focus of this discussion is properly on the existence of present authority to assure participation by necessary private sector infrastructure stewards in actions directed at such life saving activity rather than eligibility of private sector entities for reimbursement Among relevant existing authority directing the rendering of assistance to prevent loss of life are the multilateral and unilateral maritime treaty obligations under which the Coast Guard and military are obligated to render assistance to vessels in distress 24 Interpretation of policy implementing United States bilateral treaties such as the Treaties of Commerce Friendship and Navigation in place with dozens of Nations incorporate a “right of assistance entry” for vessels and aircraft 25 All ship and aircraft commanders are obligated to assist those in danger of being lost at sea This long-recognized duty permits assistance entry to render emergency assistance to those in danger or distress at sea In general military commanders are permitted to render such assistance to prevent loss of life upon request of civil authorities pursuant to Department of Defense policy for Immediate Response Authority 26 Absent from the Stafford Act is any direct reference to Federal assistance to “for-profit” entities and it does not recognize that TIPs which own about 80 percent of the Nation’s critical infrastructure play a critical recovery role in disasters to address the threats to public health and safety life and property 3 4 2 The Defense Production Act The NSTAC examined other laws that have been amended to reflect the importance of critical infrastructure in NS EP efforts For example the Defense Production Act DPA of 1950 Public Law 81-774 provides DHS the authority to redirect production and distribution of certain response and incident management resources The DPA is the primary authority to ensure the timely availability of resources for national defense and civil emergency preparedness and response Among other things the DPA authorizes the President to demand that companies accept and give priority to Government contracts that the President “deems necessary or appropriate to promote the national defense ”27 The term “national defense” has traditionally 24 International convention for the safety of life at sea 1974 with annex International Maritime Organization http www imo org home 25 Statement of Policy by the Department of State Department of Defense DoD and United States Coast Guard Concerning the Exercise of the Right of Assistance Entry of 8 August 1986 This policy statement is implemented within the DoD by CJCSI 2410 01B This instruction specifically deals with assistance entry by aircraft for life-threatening and nonlife-threatening situations 26 The Immediate Response Authority permits commanders to take immediate action to save lives prevent human suffering or mitigate great property damage under imminently serious conditions Commanders may take whatever action the circumstances reasonably justify As soon as practical the commander rendering assistance shall report the fact of the request from civil authorities the nature of the response and any other pertinent information through the chain of command In the case of civil disturbances which may result from a terrorist act military commanders may rely on this authority which is contained in DoDD 3025 12 MILITARY ASSISTANCE FOR CIVIL DISTURBANCES MACDIS See also DoDD 3025 15 MILITARY ASSISTANCE TO CIVIL AUTHORITIES and DoD Directive 3025 1 MILITARY SUPPORT TO CIVIL AUTHORITIES MSCA 27 50 U S C App 2071 a 2002 Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies 9 President’s National Security Telecommunications Advisory Committee been interpreted very narrowly and generally only included those elements supporting military operations In 2003 Congress passed the Defense Production Act Reauthorization Act of 2003 Public Law 108-195 which was amended to broaden the definition of “national defense” to include critical infrastructure protection and restoration as well as activities authorized by the emergency preparedness sections of the Stafford Act The broader definition specifically includes “restoration” and “preparedness” as part of national defense because of the central role critical infrastructures such as telecommunications play in the overall security of the Nation There is close relationship between the DPA and the Stafford Act However when the DPA was amended there was no parallel effort to modernize the definitions in the Stafford Act which may have contributed to some of the confusion in responding to Hurricane Katrina DPA authorities are available for activities and measures undertaken in preparation for during or following a natural disaster or accidental or man-caused event The Department of Commerce has redelegated DPA authority under Executive Order EO 12919 National Defense Industrial Resource Preparedness as amended to the Secretary of Homeland Security to place and upon application to authorize State and local Governments to place priority-rated contracts in support of Federal State and local emergency preparedness activities Essentially this provision allows the Federal Government to assist a private infrastructure provider in obtaining goods or services necessary to protect restore or prepare the infrastructure for an extraordinary event 3 4 3 The National Response Plan The NRP is not a legally binding document but it is an essential policy document that provides an all-hazards framework for the Nation to manage domestic incidents and guides the implementation of the Stafford Act Federal State and local Governments did not provide assistance to TIPs through the NRP because the plan does not specifically identify or include private sector entities that are involved in restoring vital communications infrastructure as emergency responders in ESFs Appendix 3 of the NRP notes that the HSA includes “private sector emergency response providers” as components of terrorism preparedness efforts but it does not specifically include TIPs in this category of emergency responders Private sector emergency response providers are referenced in the NRP but are not fully integrated into the ESFs which provide details regarding how Federal agencies are to provide support to all levels of Government and other jurisdictions 4 0 FINDINGS The NSTAC finds that private TIPs need non-monetary Federal assistance and support during a national disaster to facilitate the response recovery and restoration of our Nation’s critical infrastructure This support includes priority access to restricted disaster sites fuel power water billeting and workforce and asset security The NSTAC finds that a reasonable interpretation of the Stafford Act in conjunction with modifications to the NRP and its ESFs that recognize TIPs Legislative and Regulatory Task Force—Federal Support to Telecommunications 10 Service Providers in National Emergencies President’s National Security Telecommunications Advisory Committee as “Emergency Responders PS ” would greatly facilitate and enhance the national response recovery and restoration of the Nation’s critical infrastructure after a national disaster 28 4 1 The Stafford Act and Legal Interpretation of Federal Assistance The NSTAC finds that the provisions of the Stafford Act when taken as a whole see 42 U S C Sec 5170 et seq 2005 support a legal interpretation that establish that Federal assistance may lawfully be provided to TIPs during the recovery and restoration periods of a disaster The Government attempts to address immediate threats to public health and safety before during and following a disaster and telecommunications facilities and services are key to achieving this goal Roughly 80 percent of the Nation’s telecommunications critical infrastructures are privately owned and operated and cannot be recovered and restored without TIPs Accordingly it is reasonable to interpret the Act to permit Federal assistance to TIPs for the security and critical resources necessary to recover and restore telecommunications facilities for the benefit of the affected community The Stafford Act while not authorizing grant assistance to for-profit entities does not preclude Federal assistance to for-profit entities to address “immediate threats to life and property” and public health and safety following a disaster The Committee believes that because TIPs own and operate private facilities necessary for maintaining emergency services determined critical to either the disaster response or the health and safety of the community they should qualify for non-monetary Federal assistance The NSTAC is aware of legal guidance from FEMA set forth in an e-mail memorandum from the FEMA Assistant General Counsel to DHS on September 9 2005 that provides a legal interpretation of the Stafford Act consistent with the NSTAC’s interpretation that would provide TIPs Federal resources “to complete the Federal mission of assisting with immediate threats to life and property ”29 The NSTAC in accordance with FEMA’s guidance believes that such assistance granted to the privately owned facility would not be provided for the benefit of the specific facility but for the health and safety of the community as a whole and would help ensure the continuity of Federal operations support to the disaster Difficulty arose in the post-Hurricane Katrina disaster response when FEMA did not interpret the Stafford Act in the same manner as the NSTAC and the recent FEMA guidance Immediately after Hurricane Katrina neither FEMA nor other Federal State and local Government personnel were willing to recognize TIPs’ restoration efforts as a Federal mission even though ESF-2 states that TIPs support the Federal mission and accordingly the disaster assistance was not provided Reluctance by FEMA or DHS to grant Federal assistance to TIPs is perplexing in light of the request by FEMA and the Federal Government for a list of top assets from TIPs If the Federal Government recognizes that TIPs have assets that are critical to the Federal mission then it should follow that non-monetary Federal assistance to help TIPs protect those assets is necessary and appropriate 28 The term Emergency Responder PS should not be confused with the term First Responders which includes fire police and other governmental personnel who arrive immediately at a disaster site to help protect public safety health welfare and property Rather Emergency Responders PS are TIP personnel who need access to disaster sites to repair restore and reconstitute privately owned and operated critical infrastructure facilities 29FEMA E-mail Memorandum from Assistant General Counsel to FEMA personnel September 9 2005 Guidance “Reimbursable Security Costs Under the Robert T Stafford Disaster Relief and Emergency Assistance Act ” This guidance contains a propriety marking indicating that the contents of the guidance should not be disclosed to persons other than the original addressees of the e-mail However the NSTAC companies received a copy of the guidance through the Telecommunications Information Sharing and Analysis Center process Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies 11 President’s National Security Telecommunications Advisory Committee 4 2 The Stafford Act and TIPs as Emergency Responders PS The NSTAC also finds that the Stafford Act does not directly recognize the role of private TIPs in the recovery and restoration of NS EP services and functions in disasters The statute does not mention critical TIPs nor does it adequately provide for direct assistance to for-profit entities during a disaster This lack of recognition led to confusion differing interpretations and a lack of consensus among Government officials during Hurricane Katrina significantly delaying the disaster response NSTAC finds that specific recognition and designation of TIPs as “Emergency Responders PS ” in the statute will help eliminate future statutory confusion and will make future disaster response recovery and restoration of essential telecommunications facilities and services faster and more efficient The NSTAC’s examination revealed that during and following Hurricane Katrina TIPs faced numerous problems because of a lack of communication coordination and understanding of the existing legal and regulatory framework In the aftermath of Hurricane Katrina Federal authorities asked and expected TIPs to repair networks damaged by Katrina but they did not provide TIPs with the vital resources necessary to do so Had those private sector companies received the support they requested the communications problems among first responders civilians and Federal officials could have been at least partially alleviated Providers of critical NS EP telecommunications infrastructures worked through a patchwork of Federal State and local authorities and jurisdictions each with varying interpretations of statutes governing cooperation and coordination with the private sector Confusion about roles and responsibilities was pervasive and industry expressed concern that the existing legal and regulatory environment is not conducive to ensuring an effective response to disasters 4 3 The NRP and TIPs as Emergency Responders PS The NSTAC finds that the NRP does not clearly delineate the roles and responsibilities of State and local Governments vis-à-vis TIPs nor does it recognize and identify TIPs as Emergency Responders PS The NRP was not properly leveraged because State and local Governments were not aware of the numerous protocols that identified their roles and responsibilities in the event of a disaster such as Hurricane Katrina Even if the plan had been adequately used in the aftermath of Hurricane Katrina the NSTAC finds that the NRP and its ESFs could be enhanced with protocols that identify TIPs as Emergency Responders PS which would clarify their roles and responsibilities in repairing critical infrastructure Federal State and local Government officials did not view TIPs as essential components of the emergency response effort therefore these officials did not help to facilitate assistance to TIPs so that telecommunications infrastructure could be quickly restored Although the concept of private sector emergency responders is referenced in Appendix 3 the NRP neither clarifies this concept nor expands on it elsewhere in the plan Moreover references to emergency response providers in the HSA and NRP focus on Government entities rather than the private sector TIPs would be in a position to better assist the Government in restoring key telecommunications infrastructure if the term Emergency Responder PS were categorized in the NRP with a definition that delineates qualifying entities including TIPs The definition should Legislative and Regulatory Task Force—Federal Support to Telecommunications 12 Service Providers in National Emergencies President’s National Security Telecommunications Advisory Committee also clarify that Emergency Responders PS are eligible to receive non-monetary emergency support commensurate with that granted to other emergency response providers 30 5 0 CONCLUSION The NSTAC concludes that differing interpretations of the Stafford Act and lack of a designation of TIPs as Emergency Responders PS in the interpretation of and in the Act itself as well as in the NRP prevented the Federal Government from authorizing assistance to the private sector which hindered TIPs in repairing critical infrastructure in the aftermath of Hurricane Katrina It is essential that private sector TIPs have emergency access to resources needed to restore critical infrastructure in the event of a large-scale natural disaster or terrorist attack to ensure proper NS EP communications The Federal Government amended the DPA in 2003 to specifically include critical infrastructure protection and restoration as part of national defense and provide the ability of the Federal Government to prioritize goods and services to assist in restoration of infrastructures Unfortunately no corresponding changes were made to the Stafford Act The current policy legal and regulatory landscape should be clarified to eliminate confusion and modified to provide adequate preparation and planning mechanisms for the Federal Government and TIPs to work together to respond to a catastrophic event 31 The NSTAC concludes that the Stafford Act should be officially interpreted to permit direct nonmonetary assistance to TIPs during a disaster to aid in the speedy response restoration and recovery for the benefit of public safety health property and life 32 TIPs should be legally designated as Emergency Responders PS named and defined as such in the Stafford Act and should be treated as Emergency Responders PS who receive non-monetary assistance under the Act 33 This designation would result in a requirement that TIPs be included in the Federal State regional and local emergency planning process and would allow them priority access to restricted areas to restore essential infrastructure 34 Designation of TIPs as Emergency Responders PS during Hurricane Katrina would have enabled companies to receive security protection from the National Guard priority access to critical resources and priority site access authorization Designating TIPs as Emergency Responder PS in the Stafford Act will eliminate the legal and regulatory hurdles experienced in the Hurricane Katrina disaster and will significantly expedite industry’s response efforts in future disasters 30 The NSTAC companies are willing to work with DHS to establish a definition of Emergency Responders PS and to identify the personnel who are included in this definition 31 The NSTAC companies are willing to work with DHS to establish processes and procedures for implementing the new designation of TIPs as Emergency Responders PS in the Stafford Act 32 The NSTAC is not recommending that for-profit companies receive monetary cost reimbursement pursuant to the Stafford Act rather it recommends that TIPs receive designation as Emergency Responders PS which would permit them to receive priority access to disaster sites and access to critical resources necessary for the response and recovery effort such as security fuel water and billeting 33 The NSTAC companies are willing to work with DHS to establish a definition of Emergency Responder PS and to identify the personnel who are included in this definition 34 The NSTAC’s Telecommunications and Electric Power Interdependency Task Force TEPITF came to a similar conclusion in their report “People and Processes Current State of Telecommunications and Electric Power Interdependencies ” However the TEPITF’s definition of Emergency Responder includes both telecommunications and electric power professionals who are the key response personnel of critical infrastructure owners and operators Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies 13 President’s National Security Telecommunications Advisory Committee The NSTAC also concludes that the NRP should be modified to identify TIPs as Emergency Responders PS and to establish a protocol with them to facilitate priority site access and access to critical resources during a disaster The HSA and NRP include definitions of emergency response providers but reserve the designation for Government entities Accordingly the NSTAC believes that a separate designation is needed for TIPs Under the HSA and NRP emergency response providers perform roles and responsibilities specific to Government that are distinct from the those of private sector emergency response personnel A separate classification of Emergency Responder PS which includes TIPs is necessary to clarify the legal status of TIPs and enable them to best restore key infrastructure after an emergency or national disaster TIPs are necessary components of an emergency response effort and recognizing that the NRP provides a unified incident management framework for all disciplines TIPs should be integrated into the all-hazards approach to provide a truly comprehensive plan The NRP should be modified to establish a protocol that incorporates the roles and responsibilities of TIPs in the event of a natural disaster or terrorist attack This protocol should detail with whom TIPs should correspond at the Federal State and local levels and should also provide the proper credentialing process to allow TIPs access to critical sites as Emergency Responders PS The NSTAC acknowledges that other efforts are underway to establish comprehensive and effective credentialing procedures An Emergency Responder PS designation for TIPs will help identify individuals authorized to access disaster sites and to receive the appropriate credentials New protocols established within the NRP and ESF framework should clarify response actions and help create a culture where TIPs have a legal status as Emergency Responders PS and are treated as such by Federal State and local Government officials Accordingly the DHS Office of Grants and Training and the Office of Legislative and Intergovernmental Affairs should play a central role in identifying the implications of the Emergency Responder PS designation and then work with State and local Government stakeholders to follow through on the execution of this designation so that the Emergency Responders PS designation for TIPs can be implemented effectively The NSTAC recommends that the President designate TIPs as Emergency Responder PS through three different mechanisms First the President should direct DHS to modify the NRP and its ESFs to designate TIPs as Emergency Responders PS and to establish interfaces between Federal State and local Government and private sector TIPs This designation should be formalized by including a protocol in ESF-2 and other ESFs as appropriate that establishes the way in which TIPs are to work with Federal State local and tribal Governments during and after a national disaster Second because of the urgency of this problem the President should issue appropriate guidance to clarify differing interpretations of the Stafford Act This guidance should officially interpret 42 U S C § 5170 2005 and establish that private sector TIPs are eligible to receive nonmonetary Federal assistance under the Stafford Act The Directive should name these entities as Emergency Responders PS eligible for non-monetary disaster relief in the aftermath of a national disaster to ensure the stability of the Nation’s telecommunications infrastructure Legislative and Regulatory Task Force—Federal Support to Telecommunications 14 Service Providers in National Emergencies President’s National Security Telecommunications Advisory Committee Finally the President should direct the Secretary of Homeland Security to work with Congress — specifically the House Committee on Homeland Security and the Senate Committee on Homeland Security and Governmental Affairs—to amend the Stafford Act to designate TIPs as Emergency Responders PS who are eligible to receive Federal assistance under law Permanent codification of the Emergency Responder PS designation should eliminate any future differing interpretations of the Act and will support the establishment of a permanent protocol under the NRP-ESF framework where Federal State and local Governments interface with TIPs for emergency planning response recovery and restoration The President should coordinate this amendment to the Stafford Act with other ongoing efforts to modify the Act’s language in the wake of Hurricane Katrina The NSTAC recommends that the President implement all three mechanisms to better prepare the Nation for future events such as Hurricane Katrina The National Weather Service forecasts that the 2006 hurricane season beginning on June 1 2006 will be as destructive as the 2005 season therefore it would be helpful to implement these recommendations before this date 6 0 RECOMMENDATIONS NSTAC Recommendations to the President Based on its findings the NSTAC recommends that no later than June 1 2006 in accordance with the responsibilities and existing mechanisms established by EO 12472 Assignment of National Security and Emergency Preparedness Telecommunications Functions and other existing authority the President establish and codify the term Emergency Responder PS to include TIPs and ensure non-monetary assistance including accessing restricted areas and obtaining fuel water power billeting and workforce and asset security to them by— • Directing the DHS to modify the NRP and its ESFs to designate TIPs as Emergency Responders PS and to establish protocols and procedures for the way in which Federal State local and tribal Governments should work with TIPs before during and after a national disaster • Issuing appropriate Presidential guidance to define Emergency Responders PS under the Stafford Act and other authorities as appropriate to align with the broadened definition of national defense in the 2003 amendments to the DPA Specifically the guidance should make clear that key response personnel of critical telecommunications infrastructure owners and operators be defined as Emergency Responders PS and should receive non-monetary Federal assistance under the Stafford Act and • Directing the Secretary of Homeland Security to work with Congress to align the Stafford Act and other appropriate legislative authorities with the DPA by codifying the designation of private sector TIPs as Emergency Responders PS and by codifying the official interpretation that for-profit TIPs should receive Federal assistance Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies 15 President’s National Security Telecommunications Advisory Committee APPENDIX A TASK FORCE MEMBERS OTHER PARTICIPANTS AND GOVERNMENT PERSONNEL Legislative and Regulatory Task Force—Federal Support to Telecommunications Service Providers in National Emergencies A-1 President’s National Security Telecommunications Advisory Committee TASK FORCE MEMBERS Telcordia Technologies Lockheed Martin Corporation AT T BellSouth The Boeing Company Computer Sciences Corporation Lucent Technologies Verizon Business Microsoft Corporation Nortel Networks Northrop Grumman Corporation Qwest Communications Rockwell Collins Inc SBC Communications Inc Sprint VeriSign Inc Verizon Communications Ms Louise Tucker Chair Mr Gerald Harvey Vice Chair Mr Harry Underhill Mr David Barron Mr Robert Steele Mr Guy Copeland Mr Michael Garson Mr Dennis Guard Mr Bill Guidera Mr Raymond Strassburger Mr Scott Freber Mr Jon Lofstedt Mr Ken Kato Ms Rosemary Leffler Mr Michael Fingerhut Mr Michael Aisenberg Mr Michael Hickey OTHER PARTICIPANTS AT T BellSouth Cingular CTIA—The Wireless Association Edison Electric Institute The George Washington University Lucent Microsoft North American Electric Reliability Council Qwest Communications Science Applications International Corporation Sprint Sprint Sprint Telecommunications Industry Association Verizon Communications Mr Adam McKinney Mr Lloyd Nault Mr James Bugel Mr Christopher Guttman-McCabe Mr Laurence Brown Dr Jack Oslund Ms Selma Munden Mr Paul Nicholas Mr Lou Leffler Mr Jeffrey Hackman Mr Hank Kluepfel Mr Tim Bowe Ms Allison Growney Mr John Stogoski Mr William Belt Mr Drew Arena GOVERNMENT PARTICIPANTS Defense Information Systems Agency Counsel Department of Homeland Security Counsel Federal Emergency Management Agency National Communications System National Communications System National Communications System Ms Hillary Morgan Mr Eric Werner Mr Frank Lalley Mr Tom Falvey Mr Jeff Glick Mr Thad Odderstol Legislative and Regulatory Task Force—Federal Support to Telecommunications A-2 Service Providers in National Emergencies