42 U.S.C. § 5189f — Public assistance program alternative procedures

This section permits alternative procedures for administering certain disaster assistance. Participation is optional for eligible governments and private nonprofit facilities. The procedures may use fixed estimates, consolidated projects, special treatment^* of savings, expert review, and other tools described below.

(a) Approval of projects. Acting through the FEMA Administrator^*, the President may approve projects under these alternative procedures for any major disaster or emergency declared on or after January 29, 2013. The Administrator may also use them for a disaster or emergency declared before the Act’s enactment if construction had not begun by the Act’s enactment date.

(b) Adoption. In coordination with States, tribal and local governments, and owners or operators of private nonprofit facilities, the Administrator may adopt alternative procedures for administering assistance under sections 5170b(a)(3)(A), 5172, 5173, and 5192(a)(5).

(c) Goals of procedures. The procedures must advance these goals—

(1) reduce the Federal Government’s cost of providing the assistance;

(2) make administration more flexible;

(3) speed delivery of assistance to a State^*, tribal or local government^*, or private nonprofit facility^* owner^* or operator; and

(4) give those governments and owners or operators financial rewards and penalties for completing projects with the assistance on time and cost-effectively.

(d) Participation.

(1) In general. A State, tribal or local government, or private nonprofit facility owner or operator chooses whether to participate, following procedures set by the Administrator.

(2) No conditions. The President may not make Federal assistance under this chapter conditional on a State, local, or Indian tribal government^*, or private nonprofit facility owner or operator choosing to participate.

(e) Minimum procedures. The procedures must include the following:

(1) Repair, restoration, and replacement of damaged facilities under section 5172.

(A) Grants may be based on fixed estimates if the government or private nonprofit facility owner or operator agrees to pay any actual costs above the estimate.

(B) The procedures must let the government or owner or operator choose an unreduced in-lieu payment based on estimates of—

(i) repairing, restoring, rebuilding, or replacing its public facility; and

(ii) management expenses.

(C) To the extent the Administrator finds appropriate, the procedures may combine the facilities of a government or private nonprofit facility owner or operator into one project^* using the adopted estimates.

(D) If a completed project costs less than estimated, the Administrator may let a grantee or subgrantee use all or part of the extra money for—

(i) cost-effective work that reduces the risk of future disaster damage, hardship, or suffering; and

(ii) other work improving future Public Assistance operations or planning.

(E) When determining eligible costs under section 5172, the Administrator must make an independent expert panel available at the applicant’s request when the Administrator’s estimate or a certified estimate by the applicant’s professionally licensed engineers puts the eligible Federal share at $5,000,000 or more. The panel must validate the estimated eligible cost consistently with applicable regulations and policies implementing this section.

(F) When determining eligible costs under section 5172, the Administrator must, at the applicant’s request, consider properly prepared and certified estimates by professionally licensed engineers mutually agreed on by the Administrator and applicant, if the estimates follow applicable regulations, policy, and guidance.

(G) Once a professionally licensed engineer certifies an estimate and the Administrator accepts it, the estimate used for a grant under this section is presumed to show reasonable eligible costs, unless there is evidence of fraud.

(2) Debris removal under sections 5170b(a)(3)(A), 5173, and 5192(a)(5).

(A) Grants may be based on fixed estimates to reward or discourage timely or cost-effective completion if the government or private nonprofit facility owner or operator agrees to pay any actual costs above the estimate.

(B) The Federal share for removing debris and wreckage may be set on a sliding scale based on the time taken to finish the removal.

(C) Program income from recycled debris may be used without reducing the grant.

(D) Base and overtime wages may be reimbursed for employees and extra hires of a government or private nonprofit facility owner or operator who perform or administer debris and wreckage removal.

(E) The procedures may reward a State, tribal, or local government for having an Administrator-approved debris-management plan and one or more prequalified debris-removal contractors before the major disaster is declared.

(F) If a project under subparagraph (A) costs less than estimated, the Administrator may let a grantee or subgrantee use all or part of the extra money for—

(i) debris-management planning;

(ii) buying debris-management equipment for current or future use; and

(iii) other activities the Administrator determines will improve future debris-removal operations.

(f) Waiver authority. Until the Administrator issues regulations implementing this section, the Administrator may—

(1) waive notice-and-comment rulemaking if the Administrator finds the waiver needed to implement this section quickly; and

(2) run these alternative procedures as a pilot program.

(g) Overtime payments. Reimbursement guidelines under subsection (e)(2)(D) must ensure that no State or local government is denied reimbursement for overtime payments required by the Fair Labor Standards Act of 1938.

(h) Report.

(1) In general. Between three and five years after January 29, 2013, the Inspector General of the Department of Homeland Security must send the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Transportation and Infrastructure a report about the alternative procedures for repairing, restoring, and replacing damaged facilities under section 5172.

(2) Contents. The report must assess how effective the procedures were, including—

(A) whether they improved the overall speed of disaster recovery;

(B) how accurate the estimates were;

(C) whether the financial rewards and penalties worked;

(D) whether the procedures were cost-effective;

(E) whether the independent expert panel in subsection (e)(1)(E) worked; and

(F) whether the procedures should continue and any recommended changes.

This section does not define “major disaster,” “emergency,” “alternative procedures,” “fixed estimate,” “in-lieu contribution,” “program income,” “pre-qualified,” “fraud,” or “cost-effective.”