42 U.S.C. § 5189f: Public assistance program…

Summary

The President, through the FEMA Administrator, can approve projects that use alternative procedures for disasters or emergencies declared on or after January 29, 2013. The Administrator can also use these procedures for earlier declarations if construction had not started when the law was enacted. States, tribal and local governments, and owners or operators of private nonprofit facilities can choose to use these alternative rules. They do not have to, and getting federal disaster help cannot be made conditional on choosing them. The main goals are to cut federal costs, give more flexibility, speed up help, and use financial rewards or penalties to encourage timely, cost‑effective work. The alternative rules let FEMA use fixed grant estimates for repairs and debris removal, let applicants take a set in‑lieu payment based on estimates, and allow grouping many facilities into one project. If actual costs are lower than estimates, leftover money can be used for risk reduction, planning, or improving future operations. For large projects with an estimated federal share of at least $5,000,000, an independent expert panel can be used to check costs, and FEMA will consider and rely on certified cost estimates from licensed engineers. For debris work, FEMA can use fixed estimates, a sliding scale for federal share based on how fast removal is finished, allow income from recycled debris to be used without reducing the grant, pay base and overtime wages, and reward governments that have approved debris plans and pre‑qualified contractors. Until formal rules are issued, the Administrator may skip normal rulemaking and run these as a pilot. Overtime must be reimbursed consistent with the Fair Labor Standards Act of 1938. The DHS Inspector General must report to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Transportation and Infrastructure not earlier than 3 years and not later than 5 years after January 29, 2013, about how well the alternative procedures worked and whether they should continue.

Title 42, §5189f

The Public Health and Welfare, Source: USLM XML via OLRC

(a)Approval of projects

The President, acting through the Administrator of the Federal Emergency Management Agency, may approve projects under the alternative procedures adopted under this section for any major disaster or emergency declared on or after January 29, 2013. The Administrator may also apply the alternate procedures adopted under this section to a major disaster or emergency declared before enactment of this Act for which construction has not begun as of the date of enactment of this Act.

(b)Adoption

The Administrator, in coordination with States, tribal and local governments, and owners or operators of private nonprofit facilities, may adopt alternative procedures to administer assistance provided under section 5170b(a)(3)(A), 5172, 5173, and 5192(a)(5) of this title.

(c)Goals of procedures

The alternative procedures adopted under subsection (a) shall further the goals of— (1)

(2)increasing flexibility in the administration of such assistance;

(3)expediting the provision of such assistance to a State, tribal or local government, or owner or operator of a private nonprofit facility; and

(4)providing financial incentives and disincentives for a State, tribal or local government, or owner or operator of a private nonprofit facility for the timely and cost-effective completion of projects with such assistance.

(d)Participation

(1)In general

Participation in the alternative procedures adopted under this section shall be at the election of a State, tribal or local government, or owner or operator of a private nonprofit facility consistent with procedures determined by the Administrator.

(2)No conditions

The President may not condition the provision of Federal assistance under this chapter on the election by a State, local, or Indian tribal government, or owner or operator of a private nonprofit facility to participate in the alternative procedures adopted under this section.

(e)Minimum procedures

The alternative procedures adopted under this section shall include the following:

(1)For repair, restoration, and replacement of damaged facilities under section 5172 of this title—

(A)making grants on the basis of fixed estimates, if the State, tribal or local government, or owner or operator of the private nonprofit facility agrees to be responsible for any actual costs that exceed the estimate;

(B)providing an option for a State, tribal or local government, or owner or operator of a private nonprofit facility to elect to receive an in-lieu contribution, without reduction, on the basis of estimates of—

(i)the cost of repair, restoration, reconstruction, or replacement of a public facility owned or controlled by the State, tribal or local government or owner or operator of a private nonprofit facility; and

(ii)management expenses;

(C)consolidating, to the extent determined appropriate by the Administrator, the facilities of a State, tribal or local government, or owner or operator of a private nonprofit facility as a single project based upon the estimates adopted under the procedures;

(D)if the actual costs of a project completed under the procedures are less than the estimated costs thereof, the Administrator may permit a grantee or subgrantee to use all or part of the excess funds for—

(i)cost-effective activities that reduce the risk of future damage, hardship, or suffering from a major disaster; and

(ii)other activities to improve future Public Assistance operations or planning;

(E)in determining eligible costs under section 5172 of this title, the Administrator shall make available, at an applicant’s request and where the Administrator or the certified cost estimate prepared by the applicant’s professionally licensed engineers has estimated an eligible Federal share for a project of at least $5,000,000, an independent expert panel to validate the estimated eligible cost consistent with applicable regulations and policies implementing this section;

(F)in determining eligible costs under section 5172 of this title, the Administrator shall, at the applicant’s request, consider properly conducted and certified cost estimates prepared by professionally licensed engineers (mutually agreed upon by the Administrator and the applicant), to the extent that such estimates comply with applicable regulations, policy, and guidance; and

(G)once certified by a professionally licensed engineer and accepted by the Administrator, the estimates on which grants made pursuant to this section are based shall be presumed to be reasonable and eligible costs, as long as there is no evidence of fraud.

(2)For debris removal under section 5170b(a)(3)(A), 5173, and 5192(a)(5) of this title—

(A)making grants on the basis of fixed estimates to provide financial incentives and disincentives for the timely or cost-effective completion if the State, tribal or local government, or owner or operator of the private nonprofit facility agrees to be responsible to pay for any actual costs that exceed the estimate;

(B)using a sliding scale for determining the Federal share for removal of debris and wreckage based on the time it takes to complete debris and wreckage removal;

(C)allowing use of program income from recycled debris without offset to the grant amount;

(D)reimbursing base and overtime wages for employees and extra hires of a State, tribal or local government, or owner or operator of a private nonprofit facility performing or administering debris and wreckage removal;

(E)providing incentives to a State or tribal or local government to have a debris management plan approved by the Administrator and have pre-qualified 1 or more debris and wreckage removal contractors before the date of declaration of the major disaster; and

(F)if the actual costs of projects under subparagraph (A) are less than the estimated costs of the project, the Administrator may permit a grantee or subgrantee to use all or part of the excess funds for—

(i)debris management planning;

(ii)acquisition of debris management equipment for current or future use; and

(iii)other activities to improve future debris removal operations, as determined by the Administrator.

(f)Waiver authority

Until such time as the Administrator promulgates regulations to implement this section, the Administrator may—

(1)waive notice and comment rulemaking, if the Administrator determines the waiver is necessary to expeditiously implement this section; and

(2)carry out the alternative procedures under this section as a pilot program.

(g)Overtime payments

The guidelines for reimbursement for costs under subsection (e)(2)(D) shall ensure that no State or local government is denied reimbursement for overtime payments that are required pursuant to the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.).

(h)Report

(1)In general

Not earlier than 3 years, and not later than 5 years, after January 29, 2013, the Inspector General of the Department of Homeland Security shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the alternative procedures for the repair, restoration, and replacement of damaged facilities under section 5172 of this title authorized under this section.

(2)Contents

The report shall contain an assessment of the effectiveness of the alternative procedures, including—

(A)whether the alternative procedures helped to improve the general speed of disaster recovery;

(B)the accuracy of the estimates relied upon;

(C)whether the financial incentives and disincentives were effective;

(D)whether the alternative procedures were cost effective;

(E)whether the independent expert panel described in subsection (e)(1)(E) was effective; and

(F)recommendations for whether the alternative procedures should be continued and any recommendations for changes to the alternative procedures.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The date of enactment of this Act, referred to in subsec. (a), probably means the date of enactment of Pub. L. 113–2, which enacted this section and was approved Jan. 29, 2013. This chapter, referred to in subsec. (d)(2), was in the original “this Act”, meaning Pub. L. 93–288, May 22, 1974, 88 Stat. 143. For complete classification of this Act to the Code, see

Short Title

note set out under section 5121 of this title and Tables. The Fair Labor Standards Act of 1938, referred to in subsec. (g), is act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chapter 8 (§ 201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables.

Amendments

2018—Subsec. (d). Pub. L. 115–254, § 1207(c), designated existing provisions as par. (1), inserted heading, and added par. (2). Subsec. (e)(1)(G). Pub. L. 115–254, § 1207(d), added subpar. (G).

Statutory Notes and Related Subsidiaries

Effective Date

of 2018 AmendmentAmendment by Pub. L. 115–254 applicable to each major disaster and emergency declared by the President on or after Aug. 1, 2017, and authorities provided under div. D of Pub. L. 115–254 applicable to each major disaster and emergency declared by the President on or after Jan. 1, 2016, except as otherwise provided, see section 1202 of Pub. L. 115–254, set out as a note under section 5121 of this title.

§5189f Public Assistance Program Alternative Procedures