
[Federal Register: December 24, 2008 (Volume 73, Number 248)]
[Notices]               
[Page 79140-79148]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24de08-99]                         

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2008-0017]

 
Voluntary Private Sector Accreditation and Certification 
Preparedness Program

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice; request for recommendations.

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SUMMARY: In the ``Implementing the Recommendations of the 9/11 
Commission Act of 2007'' (the 9/11 Act), Congress authorized the 
Department of Homeland Security (DHS) to establish a voluntary private 
sector preparedness accreditation and certification program. This 
program, now known as ``PS-Prep,'' will assess whether a private sector 
entity complies with one or more voluntary preparedness standards 
adopted by DHS, through a system of accreditation and certification set 
up by DHS in close coordination with the private sector.
    PS-Prep will raise the level of private sector preparedness through 
a number of means, including (i) Establishing a system for DHS to adopt 
private sector preparedness standards; (ii) encouraging creation of 
those standards; (iii) developing a method for a private sector entity 
to obtain a certification of conformity with a particular DHS-adopted 
private sector standard, and encouraging such certification; and (iv) 
making preparedness standards adopted by DHS more widely available.
    This Notice discusses essential elements of the program, describes 
the consultation that has taken place and will take place with the 
private sector, and seeks additional recommendations in a number of 
areas, including the private sector preparedness standards that DHS 
should adopt, both initially and over time.

DATES: Comment period: Anyone may submit comments on this guidance at 
any time, and comments will be considered as they are received. We 
would appreciate any recommendations for adoption of currently-existing 
private sector preparedness standards by January 23, 2009, though, as 
made clear below, we will accept submissions of private sector 
preparedness standards for adoption as well as comments on this notice 
at any time.
    Public Meetings: DHS intends to hold two public meetings in 
Washington, DC to provide a forum for public comment on the subject of 
private sector preparedness standards, one in January and another in 
February, 2009. Meeting details and registration information will be 
published in the Federal Register and posted at http://www.fema.gov/
privatesectorpreparedness.

ADDRESSES: You may submit comments, identified by Docket ID FEMA-2008-
0017, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments. (All government requests for 
comments--even if, as in this case, they are not for regulatory 
purposes--are sent to this portal.)
    E-mail: FEMA-POLICY@dhs.gov. Include Docket ID FEMA-2008-0017 in 
the subject line of the message.
    Fax: 866-466-5370.
    Mail/Hand Delivery/Courier: Office of Chief Counsel, Federal 
Emergency Management Agency, 500 C Street, SW., Room 845, Washington, 
DC 20472.
    Instructions: All submissions received must include the agency name 
and docket number (if available). Regardless of the method used for 
submitting comments or material, all submissions will be posted, 
without change, to the Federal eRulemaking Portal at http://
www.regulations.gov, and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to read the Privacy Act notice that is available on the 
Privacy and Use Notice link on the Administration Navigation Bar of 
http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal eRulemaking Portal at http://
www.regulations.gov. Submitted comments may also be inspected at FEMA, 
Office of Chief Counsel, 500 C Street, SW., Room 840, Washington, DC 
20472.

FOR FURTHER INFORMATION CONTACT: Mr. Don Grant, Incident Management 
Systems Director, National Preparedness Directorate, FEMA, 500 C Street 
SW., Washington, DC 20472. Phone: (202) 646-8243 or e-mail: 
Donald.Grant@dhs.gov.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

Table of Contents

I. Background
    A. Preparedness in the Wake of 9/11
    B. Purpose and Structure of the Program
II. Establishment of PS-Prep
    A. Statutory Authorization
    B. The Designated Officer
    C. The PS-Prep Coordinating Council (PSPCC)
    D. Coordination with the Private Sector and Other Non-DHS 
Entities
III. DHS's Adoption of Voluntary Preparedness Standards
    A. Call for Recommendations
    B. Principles for Standards Adoption
    C. Elements to be Considered for DHS Adoption of a Standard
IV. Accreditation
    A. The Selected Entity
    B. Procedures and Requirements for the Accreditation Process
    C. Review of Certifiers
V. Certification of Qualified Private Sector Entities
VI. Small Business Concerns
VII. Other Relevant Issues
    A. SAFETY Act
    B. Access to Sensitive Information
    C. Availability of Standards
VIII. Public Listing of Certified Private Sector Entities
    IX. Ongoing and Regular Activities of the PS-Prep Coordinating 
Council
X. Next Steps
    XI. Draft List of Possible Elements to Consider in Standards 
Development (Target Criteria)

I. Background

A. Preparedness in the Wake of 9/11

    Private-sector preparedness is not a luxury; it is a cost of 
doing business in the post- 9/11 world. It is ignored at a 
tremendous potential cost in lives, money, and national security.

    This conclusion was reached by the National Commission on Terrorist 
Attacks Upon the United States--the 9/11 Commission--in making a 
specific finding about private sector preparedness. During the course 
of its inquiry, the Commission found that the private sector was not 
prepared for the aftermath of the 9/11 attacks, and that, despite 9/11, 
the private sector remained largely unprepared at the time of its final 
report. The 9/11 Commission Report: Final Report of the National 
Commission on Terrorist Attacks Upon the United States at 398 (2004) 
(9/11 Commission Report). The 9/11 Commission's central recommendation 
in this area was that the Department of Homeland Security (DHS) promote 
private sector preparedness standards that establish a common set of 
criteria and terminology for preparedness, disaster management, 
emergency

[[Page 79141]]

management, and business continuity programs.\1\ This recommendation 
was the genesis of the Voluntary Private Sector Preparedness 
Accreditation and Certification (PS-Prep) program.
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    \1\ The Commission specifically advocated that DHS promote a 
specific standard: The American National Standards Institute's 
(ANSI) standard for private preparedness. That standard is discussed 
below. The Commission also recommended that conformity with that 
standard define the standard of care owed by a company and its 
employees for legal purposes, and that insurance and credit-rating 
services look closely at a company's conformity with the ANSI 
standard in assessing its insurability and creditworthiness.
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    It is well known that approximately 85% of that infrastructure 
which we consider to be ``critical'' is owned and operated by the 
private sector. Critical infrastructure and key resources, or CIKR, 
comprises systems and assets, whether physical or virtual, so vital to 
the United States that their incapacitation or destruction would have a 
debilitating impact on national security, national economic security, 
public health or safety, or any combination of those matters. Terrorist 
attacks on our CIKR as well as other manmade or natural disasters could 
significantly disrupt the functioning of government and business alike, 
and produce cascading effects far beyond the affected CIKR and physical 
location of the incident.
    Since one of DHS's core functions is encouraging preparedness and 
protection of critical infrastructure, Congress gave DHS a range of 
specialized tools to carry out its private sector mission. Two of the 
most prominent of these tools are authorized in the Homeland Security 
Act: the Supporting Anti-terrorism by Fostering Effective Technologies 
Act of 2002 (the SAFETY Act),\2\ implemented through the department's 
SAFETY Act program (6 CFR Part 25), and the Critical Infrastructure 
Information Act of 2002, implemented through the department's Protected 
Critical Infrastructure Information, or PCII, program (6 CFR Part 29). 
The SAFETY Act authorizes certain liability mitigation measures for 
providers of qualified anti-terrorism technologies, if those 
technologies are alleged to have failed in the course of a terrorist 
attack. The PCII program allows entities to create assessments of the 
security of their critical infrastructure and share such assessments 
with DHS without the risk that such information, once shared, can be 
used against it in court or be publicly disclosed.
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    \2\ Subtitle G of Title VIII of the Homeland Security Act of 
2002, Public Law 107-296 (Nov. 25, 2002); 6 U.S.C. 441-444.
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    In the 9/11 Act, Congress authorized another tool for DHS to work 
with the private sector--PS-Prep--through which private sector entities 
can obtain certification of conformity with one or more voluntary 
preparedness standards adopted by DHS. Each of these programs has a 
common thread: that it is not DHS that will regulate preparedness or 
security in most corners of the private sector, but it is the private 
sector itself--with tools provided in part by DHS--that should take on 
that responsibility. In creating these programs, Congress recognized 
that achieving preparedness in the private sector is often more quickly 
and efficiently accomplished through incentives and certification 
processes made available to the to the private sector--since the 
private sector has greater resources and is generally more nimble than 
the Federal government--than through Federal regulatory mandates. PS-
Prep will work with these other programs to leverage the powerful 
private sector tools DHS has been authorized to use.

B. Purpose and Structure of the Program

    Simply stated, the purpose of PS-Prep is to widely encourage 
private sector preparedness. The program will do so by providing a 
mechanism for a private sector entity--a company, facility, not-for-
profit corporation, hospital, stadium, university, etc.--to receive a 
certification from an accredited third party that it is in conformity 
with one or more private sector preparedness standards adopted by DHS.
    Seeking certification will be completely voluntary: no private 
sector entity is required by DHS to seek or obtain a PS-Prep 
certification. For the reasons cited by the 9/11 Commission and 
discussed throughout this notice, however, DHS encourages all private 
sector entities to seriously consider seeking certification on 
appropriate standards adopted by DHS, once those standards become 
available. DHS also encourages private sector entities, including 
consensus standard development organizations and others, to develop 
preparedness standards that, if appropriate, may be adopted by DHS and 
become part of PS-Prep.
    In order to accomplish its purpose, PS-Prep has three separate but 
interrelated components: adoption, accreditation, and certification.
     ``Adoption'' is DHS's selection of appropriate private 
sector preparedness standards for the program. Given DHS's goal of 
broadly encouraging private sector preparedness, we have developed a 
process, described below, that allows a wide variety of standards to be 
considered and adopted.
     ``Accreditation'' is a process managed by a DHS-selected 
non-governmental entity to confirm that a third party is qualified to 
certify that a private sector entity complies with a preparedness 
standard adopted by DHS. Third parties are ``accredited'' to provide 
certifications, and may be accredited on one, some, or all of the DHS-
adopted standards.
     ``Certification'' is the process by which an accredited 
third party determines that a private sector entity is, in fact, in 
conformity with one of the private sector preparedness standards 
adopted by DHS.

II. Establishment of PS-Prep

A. Statutory Authorization

    President George W. Bush signed the 9/11 Act into law on August 3, 
2007. Section 901 of the 9/11 Act adds a new section 524 to the 
Homeland Security Act, codified at 6 U.S.C.321m, which requires the 
Secretary of Homeland Security to, among other things:

    develop and promote a program to certify the preparedness of 
private sector entities that voluntarily choose to seek 
certification under the program; and implement the program through 
an[] entity * * * which shall accredit third parties to carry out 
the certification process under this section.

This program is the PS-Prep program described in this notice.

B. The Designated Officer

    In establishing and implementing the PS-Prep program, the Secretary 
of Homeland Security acts through a designated officer, who may be one 
of the following departmental officials: (i) The Administrator of the 
Federal Emergency Management Agency (FEMA); (ii) the Assistant 
Secretary for Infrastructure Protection; or (iii) the Under Secretary 
for Science and Technology. 6 U.S.C. 321m(a)(2). On August 31, 2007, 
the Secretary named the Administrator of FEMA as the designated 
officer.

C. The PS-Prep Coordinating Council

    The designated officer is statutorily required to coordinate with 
the two other departmental officials named above--the Assistant 
Secretary for Infrastructure Protection and the Under Secretary for 
Science and Technology--as well as with the Special Assistant to the 
Secretary (now Assistant Secretary) for the Private Sector, in carrying 
out the program. 6 U.S.C. 321m(a)(3). This coordination takes place 
through the PS-Prep Coordinating Council (the PSPCC), which is 
described below. Other permanent members of the PSPCC include the DHS 
General Counsel and

[[Page 79142]]

the Assistant Secretary for Policy. The PSPCC will, in consultation 
with the private sector, adopt the preparedness standards to be 
certified through PS-Prep as described in this notice.

D. Coordination With the Private Sector and Other Non-DHS Entities

    Even before the 9/11 Act became law, DHS encouraged private-sector 
owners of critical infrastructure to consider, develop and employ 
sector-specific preparedness best practices. DHS did so through 
communication with the Sector Coordinating Councils for the now 
eighteen critical infrastructure/key resources (CIKR) sectors, 
organizations that coordinate or facilitate the development of private 
sector preparedness standards, and other private sector parties. The 
private sector--which is responsible for roughly 85% of the critical 
infrastructure of the nation--has made substantial strides in this 
area, and through its and DHS's work, the private sector has become 
more prepared for disasters.
    Since the 9/11 Act's enactment, DHS has continued this engagement, 
focusing specifically on the development and administration of PS-Prep. 
Work has already been done with private sector entities and their 
representatives, including representatives of organizations that 
coordinate the development and use of voluntary consensus standards and 
others.
    This notice is designed to give all of the entities listed in 6 
U.S.C. 321m(b)(1)(B) \3\ (which we refer to as the ``listed 
entities''), as well as those who may seek to obtain voluntary 
certification, those who may seek to perform as certifying bodies, 
those who plan to develop private sector preparedness standards 
(including, for example, industry groups assembled for the purpose of 
developing such standards), and the public in general, additional 
opportunities to inform and consult with the designated officer on 
elements of PS-Prep. Anyone may submit comments on this guidance at any 
time, and comments will be considered as they are received. We would, 
however, appreciate any recommendations for adoption of currently-
existing private sector preparedness standards within the next thirty 
(30) days, though we will accept submissions of private sector 
preparedness standards for adoption at any time.
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    \3\ Those are ``representatives of appropriate organizations 
that coordinate or facilitate the development and use of voluntary 
consensus standards, appropriate voluntary consensus standards 
development organizations, each private sector advisory council 
created under section 102(f)(4), appropriate representatives of 
State and local governments, including emergency management 
officials, and appropriate private sector advisory groups, such as 
sector coordinating councils and information sharing and analysis 
centers.''
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III. DHS's Adoption of Voluntary Preparedness Standards

A. Call for Recommendations

    In consultation with the listed entities, the designated officer is 
to ``adopt one or more appropriate voluntary preparedness standards 
that promote preparedness, which may be tailored to address the unique 
nature of various sectors within the private sector, as necessary and 
appropriate, that shall be used in the accreditation and certification 
program under this subsection.'' 6 U.S.C. 321m(b)(2)(B)(i). After 
initially adopting one or more standards, the designated officer may 
adopt additional standards or modify or discontinue the use of any 
adopted standard, as necessary and appropriate to promote preparedness. 
6 U.S.C. 321m(b)(2)(B)(ii).
    One of the main functions of this notice is to seek recommendations 
from the listed entities and the public at large regarding the private 
sector preparedness standards that DHS should adopt, both initially and 
over time. In order to facilitate those recommendations, we will 
discuss in the next sections the principles we plan to use in 
selection, and--in a question and answer format--the meaning of 
``private sector preparedness standard'' and the elements that DHS will 
seek in such a standard.
    We would appreciate any recommendations for adoption of currently-
existing private sector preparedness standards within the next thirty 
(30) days, though we will accept submissions of private sector 
preparedness standards for adoption at any time. We note that the 
designated officer will consider adoption of the American National 
Standards Institute (ANSI) National Fire Protection Association (NFPA) 
1600 Standard on Disaster/Emergency Management and Business Continuity 
Programs (ANSI/NFPA 1600)--the standard specifically mentioned in both 
the statute and the 9/11 Commission's recommendation--as well as any 
other private sector preparedness standards submitted for adoption.

B. Principles for Standards Adoption

    The main principle informing DHS's adoption of standards is the 
main goal of the program: to widely encourage private sector 
preparedness through creation and use of voluntary standards. For this 
reason, PS-Prep is designed to maximize the number and type of private 
sector preparedness standards that DHS will consider adopting. While 
PS-Prep would consider adoption of--and strongly encourages the 
development and submission of--standards that contain all of the 
statutory elements of a private sector preparedness standard, and that 
could be applied generally to all entities in the private sector, PS-
Prep will also consider more limited standards, such as those that 
apply to a particular industry or a subset of an industry, or those 
that cover a more circumscribed aspect of preparedness, such as 
business continuity planning.
    A second principle is that the program is to be almost entirely 
driven by the private sector. While the designated officer, through the 
PSPCC, will adopt appropriate private sector standards, and manage the 
accreditation process through a non-governmental third party, the 
standards that are adopted are largely the product of private sector 
work--whether through voluntary consensus standards organizations, CIKR 
Sector Coordinating Councils, or other private sector entities. Private 
sector ingenuity is the lifeblood of the program. Understood this way, 
PS-Prep is a tool for both DHS and the private sector to give greater 
visibility--through a certification--to a private sector entity's 
conformity with a standard, and to more widely proliferate the use of 
standards in the private sector. It is emphatically not PS-Prep's 
purpose to impose a single federal preparedness standard on the private 
sector.
    That said, the designated officer may modify or discontinue the use 
of any adopted standard, as necessary and appropriate to promote 
preparedness. Generally, the designated officer's review of adopted 
standards will be part of the annual programmatic review, discussed 
below.
    A third principle--based upon both the scarcity of government 
resources and the need and wisdom of DHS using a risk-based approach in 
allocating those resources--is that the designated officer will have 
discretion to direct the PSPCC's adoption efforts at those private 
sector standards that meet needs identified by DHS. In other words, not 
all recommended private sector standards--and perhaps even not all 
appropriate recommended private sector standards--are guaranteed to be 
adopted by DHS.

[[Page 79143]]

C. Elements to be Considered for DHS Adoption of a Standard

    Given these principles, below is more specific guidance on 
standards that may be recommended to DHS for adoption.
What is a voluntary preparedness standard?
    The Homeland Security Act defines a voluntary preparedness standard 
as ``a common set of criteria for preparedness, disaster management, 
emergency management, and business continuity programs, such as * * * 
ANSI/NFPA 1600.'' (6 U.S.C. 101(18)). We discuss our understanding of 
this definition below.
Will there be only one standard?
    While we cannot predict how many standards DHS will ultimately 
adopt, the program is designed to consider and adopt multiple private 
sector preparedness standards, and encourage the development of 
additional standards, as well as the expansion and evolution of 
existing standards. In deciding which standards to adopt, the 
designated officer is required to consider standards that have already 
been created within the private sector, and to take into account the 
unique nature of various sectors within the private sector.
    To use an example: if DHS were to adopt a general preparedness 
standard like ANSI/NFPA 1600, a facility such as a large shopping mall 
could seek certification of its preparedness plans and practices 
against that standard under PS-Prep. DHS might also adopt a more 
specific private sector preparedness standard covering that sector 
(commercial facilities) or subsector (shopping malls), if such a 
standard were created and if DHS determined it to be appropriate. In 
that case, the facility could seek certification under either standard, 
or under both.
    PS-Prep will consider several types of voluntary private sector 
preparedness standards, and-though describing them before the private 
sector creates and proposes such standards would be unduly limiting-
they can be broken down into two major divisions. First, DHS will 
consider adoption of standards that contain all of the statutory 
elements of a private sector preparedness standard, and that could be 
applied generally to all entities in the private sector. DHS will 
likely adopt such standards first, to provide the greatest chance for 
widespread adoption quickly. Such standards may contain modifications 
to take into account particular unique aspects of various industries 
and sectors, as well as currently-existing regulatory regimes that 
apply to those standards. Second, and importantly, PS-Prep will also 
consider more limited standards, such as those that apply to a 
particular industry or a subset of an industry, or those that cover a 
more circumscribed aspect of preparedness (i.e., an emergency 
preparedness standard for hospitals over a certain number of beds).
Will DHS only adopt ``consensus standards''?
    Consensus standards, described in the Office of Management and 
Budget's Circular A-119, are so named because of the characteristics of 
their development process: openness, balance of interest, due process, 
an appeals process, and consensus.\4\ We believe that consensus 
standards- and the consensus standards process-may yield some of the 
most valuable private sector standards for DHS to consider for 
adoption. But while the statute requires the designated officer to 
consult with ``voluntary consensus standards development 
organizations'' in managing the program, DHS is not limited in its 
adoption of standards to those developed in this fashion. In order to 
promote PS-Prep's goal of maximizing creation and adoption of private 
sector preparedness standards, standards developed by industry groups, 
non-profit organizations, and others--in addition to those developed by 
consensus standards development organizations--will be considered for 
adoption.
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    \4\ According to the circular, consensus is defined as general 
agreement, but not necessarily unanimity, and includes a process for 
attempting to resolve objections by interested parties, as long as 
all comments have been fairly considered, each objector is advised 
of the disposition of his or her objection(s) and the reasons why, 
and the consensus body members are given an opportunity to change 
their votes after reviewing the comments.
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What is the difference between a ``standard'' and a ``plan''?
    In discussing PS-Prep, there is sometimes confusion between 
``plans'', which describe the preparedness practices and procedures 
that a private sector entity has in place, and ``standards'', which 
will be considered for adoption under the program. To clarify, 
practices and procedures are the things a private sector entity 
actually does to further its preparedness, and plans are an entity's 
description of what it does generally or what it will do in a 
particular situation. A certifiable private sector preparedness 
standard, on the other hand, is the yardstick against which a 
particular entity's practices, procedures and plans are measured.
    Certainly, the boundary between standards and plans is not always 
well defined, and the PSPCC will review materials submitted for 
adoption to determine that they are, in fact, standards. Generally, 
however, PS-Prep will not consider for adoption a private sector 
entity's plan for preparedness, business continuity, emergency 
management, etc.--only the standards against which such plans and 
procedures are measured.
Must there be ``common elements'' in the standards adopted?
    Private sector preparedness standards, according to the statutory 
definition, contain ``a common set of criteria'' for preparedness, 
disaster management, emergency management, and business continuity 
programs. We understand this to mean that the standard itself should 
have a common set of criteria for the private sector entities certified 
under it--not that all private sector standards in the program have the 
same criteria. Therefore, the designated officer will entertain 
adoption of private sector preparedness standards that cover one or 
more of the categories in the definition (i.e., preparedness, disaster 
management, emergency management, and business continuity programs), 
while also encouraging the development of standards that 
comprehensively incorporate disaster management, business management, 
and business continuity in a single framework.
Will certification be ``all or nothing''?
    Some comments received to date have indicated that there is a 
desire for certifications on certain standards to be incremental 
(grading on a scale of conformance, for example) rather than absolute--
sometimes called a ``maturity model process improvement approach.'' 
While certifications will, at least in the initial stages of the 
program, determine conformity or non-conformity with a particular 
standard, we welcome comments on this approach.
What is an ``appropriate'' standard?
    The designated officer must determine that a preparedness standard 
is ``appropriate'' prior to adoption. 6 U.S.C. 324m(b)(2)(B)(i). For 
these purposes, an ``appropriate'' standard is one that the designated 
officer determines promotes private sector preparedness.
    Included in this notice is a draft list of possible elements that 
can be included in private sector preparedness standards. It is, of 
course, not possible to devise uniform criteria that every standard 
submitted for adoption should meet--because, among other reasons,

[[Page 79144]]

there may be industry-specific standards proposed, and standards may 
seek to address something less than the full range of matters that may 
be included in a preparedness standard. Even so, the list of possible 
elements included as Section XII below is a good starting point for 
parties developing private sector preparedness standards for adoption. 
A standard need not contain all of these elements to be appropriate and 
therefore be considered for adoption by DHS. Nonetheless, the list is 
provided to guide the private sector in developing appropriate 
standards, and will be modified as necessary.

IV. Accreditation

A. The Selected Entity

    The designated officer is to:

    enter into one or more agreements with a highly qualified 
nongovernmental entity with experience or expertise in coordinating 
and facilitating the development and use of voluntary consensus 
standards and in managing or implementing accreditation and 
certification programs for voluntary consensus standards, or a 
similarly qualified private sector entity, to carry out 
accreditations and oversee the certification process under this 
subsection.

6 U.S.C. 321m(b)(3)(A)(i). On June 12, 2008, the designated officer 
entered into a contract with the ANSI-ASQ National Accreditation Board, 
or ANAB, to be the ``selected entity'' under the statute. As the 
selected entity, ANAB will develop and oversee the certification 
process, manage accreditation, and accredit qualified third parties to 
carry out certifications in accordance with the accepted procedures of 
the program. ANAB is an internationally recognized national 
accreditation organization, is an International Accreditation Forum 
(IAF) charter member, and currently is the only IAF-member 
accreditation organization for process/management system certifiers 
based in the United States.

B. Procedures and Requirements for the Accreditation Process

    The designated officer is to develop guidelines for accreditation 
and certification processes (6 U.S.C. 321m(b)(2)(A)(ii)), and ANAB is 
to manage the accreditation process and oversee the certification in 
accordance with those procedures (6 U.S.C. 321m(b)(3)(A)(ii)).
    Initially, ANAB will offer accreditation in accordance with an 
existing standard: International Organization for Standardization 
(ISO)/International Electrotechnical Commission (IEC) Standard 17011, 
``Conformity assessment--General requirements for accreditation bodies 
accrediting conformity assessment bodies.'' This standard establishes 
the general requirements for bodies accrediting entities that certify 
conformity with private sector standards. They are available at http://
www.ansi.org. The designated officer will determine during the course 
of the PS-Prep program whether additional guidelines for accreditation 
beyond ISO/IEC 17011 are necessary, and DHS welcomes comment on this 
issue.
    Application to become a certifying entity--known as a 
``certifier''--will be voluntary and open to all entities that meet the 
qualifications of the PS-Prep program. To determine whether an entity 
is qualified to provide certifications, ANAB will consider whether the 
entity meets the criteria- and agrees to the conditions--listed in 6 
U.S.C.321m(b)(3)(F). These include important agreements about conflicts 
of interest.

C. Review of Certifiers

    The designated officer and the selected entity shall regularly 
review certifiers to determine if they continue to comply with the 
program's procedures and requirements. 6 U.S.C. 321m(b)(3)(G). DHS will 
require the selected entity to review certifiers on at least an annual 
basis. A finding that a certifier is not complying with PS-Prep may 
result in the revocation of its accreditation. The designated officer 
will, when necessary and appropriate, review the certifications issued 
by any entity whose accreditation is revoked.

V. Certification of Qualified Private Sector Entities

    Once ANAB accredits entities to provide certifications under the 
program, those certifiers will determine whether a private sector 
entity is, in fact, in conformity with one of the private sector 
preparedness standards adopted by DHS. The designated officer is to 
develop guidelines for certification (6 U.S.C. 321m(b)(2)(A)(ii)), and 
ANAB is to oversee the certification process in accordance with those 
procedures (6 U.S.C. 321m(b)(3)(A)(ii)).
    Entities will certify based upon an existing standard: ISO/IEC 
Standard 17021, ``Conformity Assessment-Requirements for bodies 
providing audit and certification of management systems,'' available at 
http://www.ansi.org. After adoption of one or more standards, the 
designated officer and ANAB will work together to determine if there 
are any additional procedures that a certifier should use.
    One important element of certification under any adopted standard 
is the following: As provided at 6 U.S.C. 321m(b)(3)(E), PS-Prep 
certifiers will, at the request of an entity seeking certification, 
consider non-PS Prep certifications. That is, the certifier may 
consider whether an already-acquired certification satisfies all or 
part of the PS-Prep certification requirement, and, if it does, the 
certifier may ``give credit'' for that pre-existing certification. This 
will avoid unnecessarily duplicative certification requirements.

VI. Small Business Concerns

    Because the certification process may involve expense, and that 
expense may cause small businesses to avoid seeking certification, the 
statute calls upon the designated officer and the selected entity to 
``establish separate classifications and methods of certification for 
small business concerns * * *.'' 6 U.S.C. 321m(b)(2)(D). DHS is 
considering several lower-cost options aside from third-party 
certification for small businesses. One such option is a self-
declaration of conformity: an attestation by the small business that it 
has complied with one or more DHS-adopted standards. Another option is 
a second-party attestation, which would involve another entity--perhaps 
one that uses the small business in its supply chain--attesting that 
the small business is in conformity with one or more DHS-adopted 
standards. The DHS Ready-Business Program might be the appropriate 
portal for these self- and second-party attestations. DHS seeks comment 
on self-attestations of conformity, second-party attestations, and the 
employment of Ready-Business in this program, as well as any other 
proposal for alternatives allowing small business participation in PS-
Prep.
    Of course, only entities categorized as ``small business'' would be 
eligible to self-declare conformity, or for the other options described 
above. To determine which private sector entities are small businesses, 
the designated official will use the North American Industrial 
Classification System, or NAICS, which establishes a size standard for 
various industrial classifications. Additional information about NAICS 
is available at the Small Business Administration's Web site, http://
www.sba.gov/services/contractingopportunities/sizestandardstopics/
index.html.

VII. Other Relevant Issues

A. SAFETY Act

    As mentioned above, DHS manages the Supporting Anti-terrorism by 
Fostering Effective Technologies Act of 2002 (SAFETY Act) Program. 6 
U.S.C. 441-444; 6 CFR Part 25. The SAFETY Act Program is a liability 
mitigation

[[Page 79145]]

program intended to foster the development and the deployment of anti-
terrorism technologies by providing certain liability protections to 
sellers and downstream purchasers of qualified anti-terrorism 
technologies, (QATTs).
    While the determination of whether a technology should receive 
SAFETY Act protection is fact-specific, it is the case that private-
sector preparedness standards submitted to DHS for adoption into PS-
Prep may be determined to be QATTs. Similarly, the services provided by 
certifying entities may be determined to be QATTs as well. In 
considering the suitability of a preparedness standard for adoption 
under the PS-Prep process, DHS may ask questions similar to those asked 
in submission of a SAFETY Act application. Therefore, PS-Prep will seek 
to streamline the process for applying for SAFETY Act protection and 
PS-Prep's adoption of a private-sector preparedness standard, or 
accreditation as a certifying entity.

B. Access to Sensitive Information

    Under PS-Prep, certifiers will be subject to confidentiality 
restrictions and will agree to use any information made available to 
them only for purposes of the certification process. 6 U.S.C. 
321m(b)(3)(F)(vi). As mentioned above, DHS has a tool--the PCII 
Program--that may be useful in maintaining the confidentiality of 
sensitive information in the PS-Prep certification process. If any 
information that would be helpful to certifiers is Protected Critical 
Infrastructure Information as defined in 6 CFR Part 29--and if the 
private-sector entity seeking certification so requests--such 
information may be shared with the certifier while maintaining the 
protections of the PCII program. DHS will determine whether additional 
procedures are necessary for the use of PCII in the PS-Prep program.

C. Availability of Standards

    We believe that the goal of encouraging creation and use of 
voluntary standards is best promoted if-once a standard is adopted into 
PS-Prep-it is made public, including through posting on the PS-Prep Web 
site. DHS welcomes comment on the proposed public availability of PS-
Prep standards.

VIII. Public Listing of Certified Private Sector Entities

    PS-Prep will maintain a publicly available list of private sector 
entities that have been certified as complying with one or more PS-Prep 
standards, and all certified entities that consent will be listed. This 
list will be posted on the PS-Prep Web site. This public listing will 
be of assistance to third parties-such as a business that has (or is 
planning to have) the certified entity in its supply chain-that need to 
know whether the entity has certain preparedness plans and procedures 
in place. Businesses that today must audit such entities- and in doing 
so incur the cost in time and labor of site visits, document review, 
and the like-may choose to rely on the public listing of PS-Prep 
certifications. Using PS-Prep in that fashion may reduce the costs 
associated with determining whether an entity has complied with a 
standard.

IX. Ongoing and Regular Activities of the PS-Prep Coordinating Council

    The PSPCC is PS-Prep's decision-making body. It will, on an ongoing 
basis, determine DHS's priorities for adoption of private sector 
standards, recommend which standards should be adopted into the program 
based upon those priorities and the principles outlined in Section III, 
above, determine if additional guidelines for accreditation or 
certification are necessary, and interact with listed entities as 
required by the statute.
    The PSPCC will also assist the designated officer in complying with 
the statutory requirement of an annual review. The statute requires the 
designated officer, in consultation with the listed entities, to 
annually review PS-Prep ``to ensure [its] effectiveness * * * and make 
improvements and adjustments to the program as necessary and 
appropriate.'' 6 U.S.C. 321m(b)(4)(A). The annual review is to include 
``an assessment of the voluntary preparedness standard or standards 
used in the program under this subsection.'' 6 U.S.C. 321m(b)(4)(B).
    While the annual review will serve as a time to determine whether 
additional private sector preparedness standards will be adopted into 
the program, we envision that the PSPCC will make determinations 
throughout the year as appropriate standards are submitted for 
consideration.
    During the annual review, the PSPCC will also review the 
performance of the selected entity, and determine whether additional 
entities should be considered for that role.

XI. Next Steps

    This notice is part of the consultation process with the listed 
entities, potential certifiers, entities that may seek certification, 
and the public at large. DHS has engaged in consultation prior to the 
issuance of this notice-including through speaking engagements, 
discussions in the normal course of business, meetings of the CIKR 
Sector Coordinating Councils, and the like- and will continue engaging 
with the public after the program is established.
    DHS intends to hold two public meetings in Washington, DC to 
provide a forum for public comment, one in January and another in 
February, 2009. Meeting details and registration information will be 
published in the Federal Register and posted at http://www.fema.gov/
privatesectorpreparedness.
    While there may be additional notices related to PS-Prep, either in 
the Federal Register or on the PS-Prep Web site (including notices 
about the adoption of standards, the accreditation of certain entities, 
adoption or modification of accreditation or certification procedures, 
and the like), we do not plan to issue another notice before initial 
standards are adopted. Instead, we will-after careful review of the 
comments and recommendations for the adoption of one or more voluntary 
private sector preparedness standards-announce adopted standard or 
standards, as well as the logistics (such as whom to contact at DHS or 
the selected entity) of accreditation and certification. Comments on 
this guidance as well as recommendations of standards for DHS to adopt 
into the program may be submitted at any time.

XI. Draft List of Possible Elements To Consider in Standards 
Development

    In order for DHS to adopt a standard to be part of PS-Prep, the 
designated officer must determine that it is ``appropriate.'' An 
appropriate standard is one that is determined by the designated 
officer to promote private sector preparedness.
    Below is a draft list of possible elements that can be included in 
private sector preparedness standards and which may be used by the 
designated officer in evaluating standards for adoption in the program. 
The set of elements listed below can define the attributes of a 
comprehensive preparedness program. It is, of course, not possible to 
devise uniform criteria that every standard submitted for adoption 
should meet-because, among other reasons, there may be industry-
specific standards proposed, and standards may seek to address 
something less than the full range of matters that may be included in a 
preparedness standard.
    This list is a good starting point for parties developing private 
sector preparedness standards for adoption. A standard need not contain 
all of these elements to be appropriate and therefore

[[Page 79146]]

be considered for adoption by DHS, but the list is provided to guide 
the private sector in developing appropriate standards, and will be 
modified as necessary.


------------------------------------------------------------------------
          Possible Elements to Consider
--------------------------------------------------   Examples of how to
                                   Elements and       satisfy element
         Subject area                content
------------------------------------------------------------------------
1. Scope and Policy...........  A scope and/or     1. Establish
                                 policy statement   preparedness
                                 that addresses     management program,
                                 preparedness,      including
                                 disaster           identification of
                                 management,        appropriate
                                 emergency          resources and
                                 management, or     authorities.
                                 business          2. Define scope and
                                 continuity. The    boundaries for
                                 standard may       development and
                                 contain the        implementation of
                                 following:         the program.
                                1. Scope.........  3. Establish a
                                1. Policy........   framework for
                                2. Principles....   setting objectives,
                                3. Purpose.......   direction, and
                                                    principles for
                                                    action.
                                                   4. Demonstrate top
                                                    management and the
                                                    organization's
                                                    commitment to
                                                    preparedness
                                                    management.
2. Requirements...............  A statement that   1. Identify, register
                                 the organization   and evaluate
                                 identifies and     internal and
                                 conforms to        external
                                 applicable         requirements
                                 legal,             pertinent to the
                                 statutory,         organization's
                                 regulatory and     functions,
                                 other              activities and
                                 requirements       operations.
                                 (e.g., codes of   2. Understand
                                 practice and       potential impact of
                                 standards of       laws, regulations,
                                 care). The         codes, zoning,
                                 standard may       standards or
                                 contain the        practices concerning
                                 following, as      emergency procedures
                                 well as a          specific to the
                                 process for        location and
                                 identifying and    industry.
                                 addressing them:
                                1. Legal.........
                                2. Statutory.....
                                3. Regulatory....
                                4. Other.........
3. Objectives and Strategies..  The standard may   1. Develop strategic
                                 contain            plans for incident
                                 requirements for   prevention,
                                 strategies and/    preparedness,
                                 or strategic       mitigation,
                                 plans designed     response, business
                                 to accomplish      continuity, system
                                 the                resiliency, and
                                 organization's     recovery for short
                                 objectives in:     term (less than a
                                                    month) and long term
                                                    (up to one year).
                                1. Risk            2. Identify type and
                                 Management.        availability of
                                                    human,
                                                    infrastructure,
                                                    processing, and
                                                    financial resources
                                                    needed to achieve
                                                    the organization's
                                                    objectives.
                                2. Incident        3. Identify roles,
                                 Prevention.        responsibilities,
                                                    authorities and
                                                    their
                                                    interrelationships
                                                    within the
                                                    organization
                                                    required to ensure
                                                    effective and
                                                    efficient
                                                    operations.
                                3. Incident        4. Plan the
                                 Preparedness.      operational
                                                    processes for
                                                    actions required to
                                                    achieve the
                                                    organization's
                                                    objectives.
                                4. Incident        5. Consider cyber and
                                 Mitigation.        human security
                                                    elements in control
                                                    strategies and
                                                    plans.
                                5. Incident        6. Make arrangements
                                 Response.          and contingency
                                                    preparedness plans
                                                    that should be in
                                                    place to manage
                                                    foreseeable
                                                    emergencies.
                                6. Business        7. Develop crisis
                                 Continuity.        communication plans
                                                    with internal
                                                    personnel
                                                    (management, staff,
                                                    response teams,
                                                    etc.).
                                7. Incident        8. Ensure the
                                 Recovery.          company's
                                                    Communications
                                                    Department has
                                                    identified key
                                                    resources designated
                                                    to initiate crisis
                                                    communications with
                                                    employees, business
                                                    partners, vendors,
                                                    government and
                                                    external media.
                                8. Corrective and  9. Involve
                                 Preventive         appropriate external
                                 Actions.           parties during
                                                    exercise events.
4. Risk Management............  The standard may   1. Establish a
                                 contain            process for risk
                                 consideration of   identification,
                                 risk management,   analysis, and
                                 including hazard   evaluation.
                                 and threat        2. Identify assets,
                                 identification,    needs, requirements,
                                 risk assessment,   and analysis of
                                 vulnerability      critical issues
                                 analysis, and      related to business
                                 consequence/       disruption risks
                                 business impact    that are relevant to
                                 analysis. The      the organization and
                                 standard may       stakeholders.
                                 provide for the   3. Identify hazards
                                 conduct of:        and threats, to
                                1. Hazards and      include cyber and
                                 Threats            human security
                                 Identification..   elements. These
                                2. Risk             should include loss
                                 Assessment..       of IT;
                                3. Impact           telecommunications;
                                 Analysis..         key skills; negative
                                4. Vulnerability    publicity; employee
                                 Assessment..       or customer health
                                5. Consequence/     or safety; damage to
                                 Business Impact    organization's
                                 Analysis..         reputation; loss of
                                                    access to
                                                    organization's
                                                    assets; utility
                                                    systems; supply
                                                    chain outage/
                                                    disruption, and
                                                    insider threats.
                                                   4. Evaluate the
                                                    probability of a
                                                    disruptive event,
                                                    dependencies and
                                                    interdependencies
                                                    with other assets
                                                    and sectors, and
                                                    consequences on
                                                    business operations;
                                                    Prioritize the
                                                    issues identified as
                                                    a result of the risk
                                                    assessment and
                                                    impact analysis.
                                                   5. Set objectives and
                                                    targets (including
                                                    time frames) based
                                                    on the
                                                    prioritization of
                                                    issues within the
                                                    context of an
                                                    organization's
                                                    policy and mission.
                                                   6. Evaluate and
                                                    establish recovery
                                                    time objectives.
                                                   7. Assess
                                                    vulnerability of
                                                    organization,
                                                    systems, and
                                                    processes.
                                                   8. Define risk
                                                    treatment strategy
                                                    and resources needed
                                                    to address the
                                                    organization's risks
                                                    to business
                                                    disruption.

[[Page 79147]]


5. Operations, Control, and     The standard may   1. Establish
 Risk Mitigation.                call for           operational control
                                 incident           measures needed to
                                 management /       implement the
                                 business           strategic plan(s)
                                 continuity         and maintain control
                                 strategy,          of activities and
                                 tactics,           functions against
                                 operational        defined targets.
                                 plans and         2. Develop procedures
                                 procedures, and/   for controlling key
                                 or contingency     activities,
                                 plans that will    functions, and
                                 be used during     operations
                                 emergencies,       associated with the
                                 crises and other   organization,
                                 events             including possible
                                 threatening its    large extended
                                 operation; and     workforce absences;
                                 the                and alternative work
                                 documentation      sites or remote
                                 thereof. The       working procedures.
                                 standard may      3. Establish
                                 contain            processes and
                                 provisions for     procedures for
                                 the following:     operational
                                1. Operational      management and
                                 Continuity..       maintenance of
                                2. Incident         infrastructure,
                                 Management..       plant, facilities,
                                3. Coordination     finance, etc. which
                                 with Public        have an impact on
                                 Authorities..      the organization's
                                                    performance and its
                                                    stakeholders.
                                                   4. Establish
                                                    processes and
                                                    procedures for
                                                    management of
                                                    documents which are
                                                    essential to the
                                                    successful
                                                    implementation and
                                                    operation of the
                                                    preparedness
                                                    management program
                                                    or system.
                                                   5. Establish
                                                    operational control
                                                    measures needed to
                                                    implement the
                                                    strategic plan(s)
                                                    and maintain control
                                                    of activities and
                                                    functions.
                                                   6. Develop insider
                                                    threat mitigation
                                                    measures.
                                                   7. Develop action
                                                    plans for increased
                                                    threat levels and
                                                    tools to enhance
                                                    situational
                                                    awareness.
                                                   8. Formalize
                                                    arrangements for
                                                    those who supply and
                                                    contract their
                                                    services to the
                                                    organization which
                                                    have an impact on
                                                    the organization's
                                                    performance,
                                                    including mutual aid
                                                    agreements.
                                                   9. Determine the
                                                    local and regional
                                                    public authorities
                                                    and their potential
                                                    impact on your
                                                    organization's plans
                                                    including, but not
                                                    limited to, the U.S.
                                                    Department of
                                                    Homeland Security,
                                                    emergency
                                                    management, fire,
                                                    police, public
                                                    utilities, and local
                                                    & nationally elected
                                                    public officials.
                                                   10. Work with local
                                                    Public Information
                                                    Officers to
                                                    understand and
                                                    follow protocol.
                                                   11. Document the
                                                    forms and processes
                                                    to be used before or
                                                    during an event or
                                                    exercise to ensure
                                                    activities and
                                                    participants, etc.,
                                                    are captured for
                                                    review and Plan
                                                    response and
                                                    recovery
                                                    improvements.
                                                   12. Collaborate with
                                                    other organizations
                                                    on preparedness
                                                    issues of mutual
                                                    concern.
6. Communications.............  The standard may   1. Develop and
                                 call for plans     maintain a system
                                 for                required for
                                 communication      communications and
                                 and warning as     warning capability
                                 they apply to      in the event of an
                                 disaster/          incident/disruption.
                                 emergency         2. Identify
                                 management and     requirements,
                                 business           messages, and
                                 continuity. The    content required for
                                 standard may       communication within
                                 contain            the organization.
                                 provisions for    3. Identify
                                 the following:     requirements,
                                 Warning    messages, and
                                 and                content required for
                                 Notification..     external
                                 Event      communication.
                                 Communication..   4. Develop,
                                 Crisis     coordinate, evaluate
                                 Management         and exercise plans
                                 Communications..   to communicate
                                            information and
                                 Information        warnings with
                                 Sharing..          internal
                                 Public     stakeholders and
                                 Relations..        external
                                                    stakeholders
                                                    (including the
                                                    media) for normal
                                                    and abnormal
                                                    conditions.
                                                   5. Make arrangements
                                                    for communications
                                                    both within the
                                                    organization and to/
                                                    from external
                                                    sources, including
                                                    local, state and
                                                    federal law
                                                    enforcement and
                                                    first responder
                                                    organizations.
                                                   6. Document
                                                    procedures and
                                                    identify tools to
                                                    manage relationships
                                                    and communications
                                                    processes with
                                                    external partners:
                                                    business partners,
                                                    governmental
                                                    agencies, vendors,
                                                    etc.
7. Competence and Training....  The standard may   1. Assess, develop
                                 call for review    and implement
                                 of the             training/education
                                 competence /       program(s) for the
                                 qualifications     organization's
                                 and training of    personnel,
                                 organization's     contractors, and
                                 personnel,         other relevant
                                 contractors, and   stakeholders.
                                 other relevant    2. Identify and
                                 stakeholders       establish skills,
                                 involved in        competency
                                 emergency          requirements, and
                                 management and     qualifications
                                 business           needed by the
                                 continuity         organization to
                                 management. The    maintain operations.
                                 standard may      3. Develop
                                 contain            organizational
                                 provisions for     awareness and
                                 the following:     establish a culture
                                1. Competence....   to support emergency
                                2. Training......   / disaster
                                                    preparedness and
                                                    business continuity
                                                    management.
                                                   4. Determine
                                                    organizational
                                                    interface protocol,
                                                    identification and
                                                    training
                                                    requirements and
                                                    assign appropriate
                                                    internal staff or
                                                    support
                                                    representative(s).
8. Resource Management........  The standard may   1. Identify and
                                 call for           assure availability
                                 management and/    of human,
                                 or logistics       infrastructure, and
                                 plans, including   financial resources
                                 allocation of      in the event of a
                                 human, physical,   disruption.
                                 and financial     2. Establish and
                                 resources in the   document provisions
                                 event of           for adequate finance
                                 incidents/         and administrative
                                 emergencies that   resources and
                                 threaten           procedures to
                                 operations. The    support the
                                 standard may       management program
                                 contain            or system under
                                 provisions for     normal and abnormal
                                 the following:     conditions.
                                1. Resource        3. Make arrangements
                                 Management..       for mutual aid and
                                2. Logistics and    community
                                 Business           assistance.
                                 Processes..

[[Page 79148]]


9. Assessment and Evaluation..  The standard may   1. Establish metrics
                                 call for           and mechanisms by
                                 assessments,       which the
                                 audits and/or      organization
                                 evaluation of      assesses its ability
                                 disaster/          to achieve the
                                 emergency          program's goals and
                                 management and     objectives on an
                                 business           ongoing basis.
                                 continuity        2. Determine
                                 programs. The      nonconformities and
                                 standard may       the manner in which
                                 contain            these are dealt
                                 provisions for     with.
                                 Periodic          3. Conduct internal
                                 Assessment and     audits of system or
                                 Performance        programs.
                                 Evaluation.       4. Plan, coordinate,
                                                    and conduct tests or
                                                    exercises.
                                                   5. Evaluate and
                                                    document exercise
                                                    results.
                                                   6. Review exercise
                                                    results with
                                                    management to ensure
                                                    corrective action is
                                                    taken.
                                                   7. Report audits and
                                                    verification results
                                                    to chief executive
                                                    officer.
10. Continuing Review (ongoing  The standard may   1. Conduct management
 management and maintenance).    call for a plan    review of programs
                                 for program        and/or system to
                                 revision and       determine its
                                 process            current performance,
                                 improvement,       to ensure its
                                 including          continuing
                                 corrective         suitability,
                                 actions. The       adequacy and
                                 standard may       effectiveness, and
                                 contain            to instruct
                                 provisions for     improvements and new
                                 the following:     directions when
                                1. Review........   found necessary.
                                2. Maintenance...  2. Make provisions
                                3. Process          for improvement of
                                 improvement..      programs, systems,
                                                    and/or operational
                                                    processes.
------------------------------------------------------------------------


    Dated: December 18, 2008.
R. David Paulison,
Administrator, Federal Emergency Management Agency.
[FR Doc. E8-30685 Filed 12-23-08; 8:45 am]

BILLING CODE 9110-14-P
