Objections to DHS-Dictated Material in the IPAWS Profile Draft

["Art Botterell" <abott@so.cccounty.us>]

Friends –

If you look at this 71-page document you’ll see that almost two-thirds
of it isn’t OASIS work-product at all.  The actual draft Profile,
including an appendix created by the CAP Profiles Subcommittee, makes up
only 25 pages.  The other 46 pages, Appendix B, are actually a
separate--and in many ways contradictory--document created by the U.S.
Department of Homeland Security.  

I believe that including that non-OASIS content in our draft for public
review is unnecessary, confusing, risky and ultimately damaging to the
credibility of the OASIS process and this Technical Committee.  I also
believe it’s against the public interest, as I’ll discuss in a moment.

It’s UNNECESSARY because the same DHS document is already referenced and
linked in section 1.5, "Non-Normative References," along with several
other references that weren’t included in full.  There is no need under
the OASIS process for us to include this language in full either.  For
simplicity, if for no other reason, we shouldn’t obfuscate our document
with a large block of redundant material, particularly if we’re serious
about seeking meaningful public review and comment.

It’s CONFUSING because although the DHS material purports to be a
requirements document, it’s actually written in the form of a fairly
detailed specification, one that contradicts the draft OASIS Profile on
a number of very significant points and goes far beyond it on others. 
Putting that conflicting material in an appendix and labeling it
non-normative can’t offset the overwhelming fact that it still would
comprise the largest part of the document.   And including a mass of
extraneous and inconsistent material in the draft can’t help but muddy
the public comment process.

It’s RISKY because we’re being drawn into uncharted legal and procedural
waters. The traditional role of OASIS has been to generate voluntary
standards that folks can use or choose not to use.  But here we’re being
asked by DHS/FEMA to conduct what they’ve told us on several occasions
they plan to treat as the public review component of a federal
regulatory process, one that will have significant financial and
political implications on a number of industries, jurisdictions and
other stakeholders.  That’s a very different activity, and not one I
think most OASIS members contemplated when they joined the organization.
 Although we may hear opinions on the subject, the fact is that we
simply can’t know what sorts of liabilities, legal expenses or other
ramifications might arise from such an undertaking, not only for OASIS
but also for the individual members of this TC.

And it’s potentially DAMAGING to OASIS and the OASIS standards process
because it creates an appearance that OASIS and particularly the
Emergency Management Technical Committee are no longer independent and
honest arbiters but now merely agents of the U.S. government.  (That
impression can only be deepened by the fact that the chair and most of
the members of the CAP Profiles Subcommittee... and many if not most of
the active members of the EM TC... are themselves DHS/FEMA contractors
or subcontractors.  And further, that OASIS itself has entered into a
side contract with DHS.)  We’ve historically heard complaints from
international members that this TC is excessively U.S.-oriented; we
don’t need to add fuel to that fire.

So why is Appendix B in there?  Not in support of the OASIS process,
clearly.  It’s there, I’d suggest, because OASIS has been recruited,
perhaps unwittingly, into a radical experiment in the privatization of
federal regulation launched under the previous Administration.  And that
experiment is now being pressed headlong to completion before the new
Administration has a chance to consider it.

That’s a strong claim, I know, and the mechanics of such things may be
unfamiliar to many OASIS members, so please bear with me while I expand
on it a bit.

The C
AP IPAWS Profile will ultimately be binding on the radio, TV,
satellite, cable and cellular telephone industries, among others, and on
state and local jurisdictions nationwide.  Historically, such federal
regulations have gone through mature and well-defined procedures for
open public comment and review managed, in this particular subject area,
by the Federal Communication Commission. 

However, in June 2006 an Executive Order (EO 13407) made the Department
of Homeland Security the lead agency for public warning, with the FCC,
NOAA and other federal agencies tasked to support DHS.  Being quite a
young federal agency, as such things go, DHS... of which FEMA is now a
department... has not had time to develop fully its own processes for
developing regulations.

In the case of the cellular alerting program (and with a bit of prodding
by way of congressional legislation) DHS partnered with the FCC in 2007
and 2008 to conduct an advisory committee process followed by two cycles
of rulemaking with formal public comment and reply-comment processes.

But in the case of IPAWS, which is meant to integrate multiple public
warning systems (EAS, cellular, NOAA Weather Radio and others) into a
single coordinated national capability, DHS has taken a different and
much less collaborative approach.  They’ve hired contractors, most of
them with little or no experience in public warning, and developed a
detailed set of technical specs, and then pressed OASIS to cover those
specifications with a veneer of public review by slipping it into our
document as an appendix.

Meanwhile, DHS has proceeded separately through its "Practitioner
Working Group" to solicit comments on... and thus build stakeholder
investment in... their own version of the Profile.  So it seems
reasonable to question whether DHS actually is committed to the OASIS
process, or whether they may simply be using OASIS to create, if not a
rubberstamp endorsement of their own agenda, then at least an illusion
of public and expert review of a document we’ve actually found to have a
number of serious shortcomings.  

In short, we need to consider the possibility that OASIS is being used
in an attempt to shortcut the regulatory process and reduce the
transparency of government.

The justification that we’re including this appendix as "a service to
the users" is both transparent and irrelevant.  Including an appendix
that explicitly contradicts the actual OASIS recommendation is hardly
doing anyone a service.  And in any event, nothing prevents DHS from
publishing any additional information it deems beneficial or necessary
by its own means.  Ultimately the CAP Profile will only be one part of
the regulatory framework required for IPAWS.

In summary, then:  There’s no compelling reason under the OASIS process
for including the confusing, contradictory and extraneous material in
Appendix B, and a number of important reasons not to.  

I hope you’ll join me in acting prudently on Tuesday to remove this
unnecessary appendix from the draft before it hopelessly confuses the
public review process and perhaps permanently damages our reputations as
advocates of an open standards process.

And there’s no need for haste here, except perhaps on the part of some
of the DHS bureaucracy.  The IPAWS program has been ongoing for at least
four years; we’ve been involved for less than ten weeks.  And DHS
representatives have already advised us that they plan to come back with
amended or additional requirements in the foreseeable future.  So please
don’t be swayed by any implication that we’re somehow obliged to release
this document prematurely.

- Art